[Federal Register Volume 86, Number 189 (Monday, October 4, 2021)]
[Proposed Rules]
[Pages 54667-54672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21474]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2021-0105; FF09M22000-212-FXMB1232090000]
RIN 1018-BF71


Migratory Bird Permits; Authorizing the Incidental Take of 
Migratory Birds

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking; notice of intent to 
prepare a National Environmental Policy Act document.

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SUMMARY: To better protect migratory bird populations and provide more 
certainty for the regulated public, the Service seeks to address human-
caused migratory bird mortality by codifying

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our interpretation that the Migratory Bird Treaty Act (MBTA) prohibits 
incidental take of migratory birds and developing regulations that 
authorize incidental take under prescribed conditions. This document 
advises the public that the U.S. Fish and Wildlife Service (Service, 
we) intends to gather information necessary to develop a proposed rule 
to authorize the incidental taking or killing of migratory birds, 
including determining when, to what extent, and by what means it is 
consistent with the MBTA and compatible with the terms of the four 
migratory bird conventions. This information will be used to develop 
proposed regulations to authorize the incidental take of migratory 
birds under prescribed conditions and prepare a draft environmental 
review pursuant to the National Environmental Policy Act of 1969, as 
amended. We are furnishing this advance notice of proposed rulemaking 
and notice of intent to advise other agencies and the public of our 
intentions, obtain suggestions and information to include in the 
proposed rulemaking and environmental review, and announce public 
scoping webinars.

DATES: Comment submission: You may submit comments to help guide the 
development of the proposed rule and draft environmental review until 
December 3, 2021.
    Scoping meetings: We will hold six scoping meetings in webinar 
format: Three for federally recognized Native American Tribes and three 
for the general public. See Scoping Meetings below under SUPPLEMENTARY 
INFORMATION for details.

ADDRESSES: You may submit written comments by one of the following 
methods:
     Electronically at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to 
Docket No. FWS-HQ-MB-2021-0105.
     By hard copy via U.S. mail: Public Comments Processing, 
Attn: FWS-HQ-MB-2021-0105; U.S. Fish and Wildlife Service; MS: PRB/3W; 
5275 Leesburg Pike; Falls Church, VA 22041-3803.
    We will post all comments on http://www.regulations.gov, including 
any personal information you provide. See Public Availability of 
Comments below under SUPPLEMENTARY INFORMATION for further information.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, U.S. Fish and Wildlife Service, at 202-208-1050.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Fish and Wildlife Service (Service) is the Federal agency 
delegated with the primary responsibility for managing migratory birds. 
Our authority derives from the Migratory Bird Treaty Act of 1918, as 
amended (MBTA; 16 U.S.C. 703 et seq.), which implements conventions 
with Canada, Mexico, Japan, and the Russian Federation. The MBTA 
protects certain migratory birds from take, except as permitted by the 
Service under the MBTA. We implement the provisions of the MBTA through 
regulations in parts 10, 13, 20, 21, and 22 of title 50 of the Code of 
Federal Regulations (CFR). Regulations pertaining to migratory bird 
permits are set forth at 50 CFR part 21.
    The Service is charged with ensuring the conservation of migratory 
birds by the MBTA, consistent with its underlying conventions, and 
other relevant statutes. A primary example is the regulatory framework 
developed to manage hunting of waterfowl species in a manner that 
ensures their long-term conservation. Early in the 20th century, 
habitat loss and hunting pressure resulted in declining populations for 
many waterfowl species. Through working closely with many partners, the 
Service successfully conserves and manages waterfowl populations and 
hunting continues to contribute to the U.S. economy.
    The Service is concerned about the current status of migratory 
birds and publishes this advance notice of proposed rulemaking as an 
initial step in a process to achieve and manage the long-term 
conservation of migratory birds and provide regulatory certainty to the 
regulated community. Over the last 50 years, the total population of 
North American birds has declined by an estimated 3 billion birds 
(Rosenberg et al. 2019). Many of the 1,093 species of birds protected 
under the MBTA (50 CFR 10.13) are experiencing population declines due 
to increased threats across the landscape. Both natural and human-
caused sources of bird mortality cumulatively contribute to declining 
bird populations. Millions of birds are directly killed by human-caused 
sources. These mortality impacts are exacerbated by lost or degraded 
habitat, ecological alterations resulting from changing climate, and 
natural causes of mortality. Many activities and projects that 
incidentally take migratory birds have voluntarily implemented 
beneficial practices (also referred to as best management practices, 
conservation measures, best practices, and mitigation measures) 
intended to avoid and minimize the take of migratory birds; however, 
many bird populations remain in decline. The Service is concerned that 
voluntary implementation of beneficial practices and prioritization of 
limited enforcement resources may be insufficient to conserve the 
species the Service is charged with protecting. The Service seeks to 
better protect migratory bird populations through addressing human-
caused mortality with common-sense regulations that are not unduly 
burdensome.
    The MBTA prohibits take, defined by regulation (50 CFR 10.12) to 
mean ``pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
attempt to pursue, hunt, shoot, wound, kill, trap, capture, or 
collect.'' Through this rulemaking process, the Service will clarify 
that incidental take is prohibited by the MBTA and codify that 
interpretation. On January 7, 2021, the Service published a final rule 
(86 FR 1134; hereafter ``the January 7 rule'') defining the scope of 
the MBTA as it applies to conduct resulting in the injury or death of 
migratory birds protected by the MBTA. The January 7 rule defined the 
MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, 
or attempting to do the same, to apply only to actions directed at 
migratory birds, their nests, or their eggs. Elsewhere in today's 
Federal Register, we publish a final rule that revokes the January 7 
rule, thus returning the Service to interpreting the MBTA as 
prohibiting incidental take and applying enforcement discretion, 
consistent with judicial precedent and longstanding agency practice 
prior to 2017. However, our revocation of the January 7 rule does not 
also include codification of our current interpretation of the MBTA as 
it applies to incidental take, it simply revokes the prior rule 
codifying our former interpretation and nothing more. With this advance 
notice of proposed rulemaking, the Service initiates the process to 
codify the interpretation that the MBTA prohibits incidental take and 
develop an approach to authorizing incidental take of migratory birds.

Purpose of This Document

    The Service is publishing this advance notice of proposed 
rulemaking to gather information necessary to codify our interpretation 
of the MBTA as prohibiting incidental take and propose a system of 
regulations to authorize the incidental take of migratory birds under 
prescribed conditions. As part of the development of these regulations, 
the Service is preparing a draft environmental review of this proposal 
pursuant to the National Environmental Policy Act.

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    The goal of this rulemaking is to provide regulatory clarification 
by codifying our interpretation of the MBTA as prohibiting incidental 
take, instead of relying on enforcement discretion, and to develop a 
common-sense approach for regulating incidental take to better protect 
migratory bird populations. Over the years and in recent rulemakings, 
the Service has received public comment and feedback from other Federal 
and State agencies and the public on regulating incidental take, the 
majority of which calls for the creation of a durable solution that 
effectively conserves migratory bird populations while providing 
regulatory clarification and certainty to the regulated community.
    In an effort to provide both meaningful bird conservation and 
regulatory clarity and certainty through legal authorization to the 
regulated communities with whom we work, we are interested in comments 
regarding whether and how the Service could authorize incidental take 
and under what conditions or circumstances. For example, the Service is 
considering a system of regulations for authorizing incidental take. 
The Service is considering authorizing incidental take using three 
primary mechanisms: (1) Exceptions to the MBTA's prohibition on 
incidental take; (2) general permits for certain activity types; and 
(3) specific or individual permits. The Service is seeking public 
comment on the criteria the Service would use to apply these 
authorizations to various activities.
    The Service is considering using regulatory authorizations to 
except certain activities from requiring a permit. For example, we are 
considering authorizing by exception and not requiring a permit for (a) 
noncommercial activities, including most activities by individuals 
(e.g., homeowner activities that take birds), and (b) certain 
activities where activity-specific beneficial practices or technologies 
sufficiently avoid and minimize incidental take.
    A general permit could be authorized through a registration system. 
An entity would register, pay a required fee, and agree to abide by 
general permit conditions. These permit conditions may be activity-
specific (i.e., certain industries would have their own specific 
general permit with conditions tailored to that industry) and require 
certain beneficial practices. The general permit would be effective 
upon submission of the request and would not require Service staff 
review prior to being effective. General permit conditions would not be 
customized to the applicant. The general permit would include reporting 
requirements. However, the Service would not need to specify a number 
of birds authorized, specify species of birds authorized, or require 
extensive monitoring requirements in the permit conditions for the 
registration system. For example, the Service could require permittees 
to report dead birds found during routine maintenance and operation 
activities rather than requiring an active monitoring program. The 
environmental review for general permits would be a collective review 
of the general permit system, not a separate review for each individual 
permit authorization. This means that we would review all of the data 
entered by general permittees as well as any monitoring data collected 
by the Service to assess the effects of the general permit program on 
migratory bird populations, instead of assessing those effects at the 
scale of an individual project.
    For projects that do not meet the criteria for eligibility for a 
general permit, the Service is considering developing regulations 
describing eligibility criteria and procedures for applying for a 
specific permit to authorize incidental take of migratory birds similar 
to current specific permit regulations (50 CFR part 21, subpart C), 
where an application and required fee is submitted to Service staff. 
Subsequently, Service staff would review the application and develop 
customized permit conditions. If such an approach is developed, the 
Service would seek to minimize the need for specific permits to the 
degree possible to reduce the administrative burden on the public, 
permittee, and Service. The Service would intend to reserve the use of 
specific permits to limited situations where case-by-case evaluation 
and customization is necessary and appropriate.
    To apply the three-tiered approach being considered by the Service, 
we must identify criteria for when a given project qualifies as 
excepted from a permit, meets general permit requirements, or should 
apply for a specific permit. The Service is seeking input as to what 
those criteria should be. The Service does not intend to use the number 
of birds found dead on a given project site as a criterion. Instead, 
the Service seeks information on appropriate criteria, such as 
infrastructure design, beneficial practices, geographic features, and 
others. For example, there may be certain geographic areas which are 
known to have high volumes of migratory birds that might be specified 
for specific permits and might not qualify for general permits due to 
the high numbers of birds in those specific areas. Similarly, there may 
be infrastructure designs or technologies that effectively reduce 
incidental take, like the installation of flashing lights on 
communications towers, that could be an appropriate criterion for a 
permit exception or general permit.
    In addition, the Service is interested in input regarding whether 
there are unique authorization types for government entities that the 
Service should consider, or whether government activities would be 
adequately covered by the authorization types described above. For 
example, the Service could consider excepting Federal agencies with a 
current, signed Memorandum of Understanding (MOU) with the Service for 
the conservation of migratory birds from needing a permit for most 
activities. The Service does not intend to include military-readiness 
activities in this rulemaking, as those activities are already covered 
in 50 CFR 21.15.
    The Service is also seeking input on what beneficial practices 
might be appropriate to require for different authorization types. Many 
activities and projects already voluntarily implement beneficial 
practices. (See table 2 in our final rule published elsewhere in 
today's Federal Register.) Our intent is to draw from these existing 
activity beneficial practices to establish regulatory requirements and 
permit conditions.
    The Service seeks any information regarding the economic impacts 
(costs, savings, or neutral effects) associated with implementing 
activity-specific beneficial practices. This information will be used 
to help the Service to meet its requirements to evaluate the potential 
effects of the proposed and final rules on small businesses, small 
organizations, and small governmental jurisdictions.
    The Service is considering developing individual, general-permit-
authorization regulations for the following activities that have been 
identified as common sources of bird mortality and/or have well-
developed, activity-specific beneficial practices:
    (a) Communication towers,
    (b) Electric transmission and distribution infrastructure,
    (c) Onshore wind power generation facilities,
    (d) Offshore wind power generation facilities,
    (e) Solar power generation facilities,
    (f) Methane and other gas burner pipes,
    (g) Oil, gas, and wastewater disposal pits,
    (h) Marine fishery bycatch,

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    (i) Transportation infrastructure construction and maintenance, and
    (j) Government agency activities (excluding military-readiness 
activities already covered under 50 CFR 21.15).

For each of these activities, the Service is seeking information and 
data regarding the causes of migratory bird death and injury at 
projects, activity-specific beneficial practices, project-specific 
beneficial practices, economic costs and benefits of implementing 
beneficial practices for retrofitting existing infrastructure, and 
economic costs and benefits of implementing beneficial practices in new 
construction.
    For activities not in the list above, the Service is seeking public 
input on how these activities should be treated (e.g., exception, 
general, or specific permit) and what beneficial practices should be 
required for these activities. The Service intends to update 
regulations to incorporate additional activity types based on updated 
information regarding effects to migratory birds. The Service is 
considering authorizing these activities through permit exceptions 
until activity-specific regulations are warranted and can be 
promulgated.
    To improve the conservation of migratory bird populations and 
support efforts to ensure authorizing incidental take is consistent 
with the MBTA and compatible with the underlying migratory bird 
conventions, the Service is also considering implementing a 
conservation fee structure to fund programs to benefit birds. The 
Service seeks public input on whether it should consider a compensatory 
mitigation approach, where mitigation is developed and implemented 
specific to a given project or activity. Alternatively, the Service is 
considering a general conservation fee structure, where fees go to a 
specific, dedicated fund. The fund could be used for two primary 
purposes. First, the Service could use conservation fee funds to 
research and monitor human-caused mortality of birds to inform the 
implementation of the program. Research and monitoring could be used to 
verify overall estimates of incidental take by project/activity type 
and the effectiveness of beneficial practices and conservation 
activities. Second, the Service could use conservation fee funds to 
address migratory bird population declines, including habitat loss and 
degradation and other sources of mortality. Because many migratory 
birds are in decline and in need of conservation action, a conservation 
fee requirement could help support efforts to ensure authorizing 
incidental take under these regulations is consistent with the MBTA and 
compatible with the four bilateral migratory bird conventions. The 
Service is seeking input on how a conservation fee could be structured 
and whether it is more appropriate than project/activity-specific 
compensatory mitigation.
    Finally, the Service is expecting the need for regular review of 
permit conditions and regulations. New beneficial practices will be 
developed, and new technology may solve some situations as well as 
cause new problems. The Service is seeking input on the process for 
reviewing and updating requirements: How frequently should authorized 
activities be updated? How should additional activities be identified? 
How long should general permits and specific permits be authorized for? 
How should compliance with authorization conditions be documented and 
enforced?

Environmental Review

Public Scoping

    A primary purpose of the NEPA scoping process is to receive 
suggestions and information on the scope of issues and alternatives to 
consider when drafting the necessary environmental documents and to 
identify significant issues and reasonable alternatives related to the 
Service's future proposed action. To ensure that we identify a range of 
issues and alternatives related to the future proposal, we invite 
comments and suggestions from all interested parties. We will conduct a 
review of the future proposed action according to the requirements of 
NEPA and its regulations, other relevant Federal laws, regulations, 
policies, and guidance, and our procedures for compliance with 
applicable regulations. Once the draft environmental documents are 
completed, we will offer further opportunities for public comment.

Proposed Action and Possible Alternatives

    The Service is responsible for maintaining and restoring migratory 
bird populations for the American public, pursuant to the MBTA and four 
bilateral migratory bird conventions. Many projects implement 
voluntary, activity-based beneficial practices to avoid and minimize 
the incidental take of migratory birds. However, many migratory bird 
populations are significantly declining, and millions of birds are 
killed each year from human-caused sources of mortality contributing to 
these declines.
    To better protect migratory bird populations and provide more 
certainty for the regulated public, the Service seeks to address human-
caused mortality by developing incidental take regulations. The purpose 
of this action is to determine when, to what extent, and by what means 
it is compatible with the MBTA and the terms of the four migratory bird 
conventions to authorize the incidental taking or killing of protected 
migratory birds.
    The Service is considering alternatives that apply a regulatory 
framework of authorizing incidental take through permit exceptions, 
general permits, and specific permits. The Service will evaluate how 
different criteria can be used to determine which authorization 
mechanism is appropriate for certain activities and what the 
requirements of that authorization should be (e.g., avoidance and 
minimization measures, required beneficial practices, etc.), including 
whether compensatory mitigation or a conservation fee or both should be 
required for general permits or for specific permits. The proposed 
alternatives presented in the environmental analysis will be compared 
to the no-action alternative. The no-action alternative will compare 
estimated future conditions without implementation of the alternatives 
to the estimated future conditions with those alternative actions in 
place.

Requested Information

Issues Related to Development of Proposed Regulations

    The Service is seeking data and information on the following:
    (a) Human-caused migratory bird death and injury, in particular for 
the 10 activities listed above under the heading ``PURPOSE OF THIS 
DOCUMENT'';
    (b) Beneficial practices to avoid and minimize migratory bird death 
and injury;
    (c) Activity-specific beneficial practices that should be 
considered as conditions of the authorization;
    (d) Criteria (such as infrastructure design, beneficial practices, 
geographic features, etc.) to qualify as excepted from a permit, for 
general permit registration, or to apply for a specific permit;
    (e) Economic costs and benefits of implementing beneficial 
practices that require retrofitting existing infrastructure;
    (f) Economic costs and benefits of implementing beneficial 
practices in new construction instead of current designs;
    (g) Economic costs and benefits of implementing beneficial 
practices that do not affect infrastructure;

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    (h) Other economic information useful for setting required 
compensatory mitigation or a conservation fee;
    (i) Economic information on the benefits of migratory birds, such 
as ecosystem services, recreation, and other benefits; and
    (j) Any potential effects on small entities, such as small 
businesses, small non-profit organizations or small governmental 
entities with a population under 50,000.

Issues Related to the Scope of the NEPA Review

    We seek comments or suggestions from the public, the regulated 
community, governmental agencies, Tribes, the scientific community, 
industry, or any other interested parties. Pursuant to NEPA, we will 
take into consideration all comments and any additional information 
received.
    We are seeking comments on the identification of effects that might 
be caused by regulating incidental take of migratory birds. You may 
wish to consider the following issues when providing comments:
    (a) Impacts on floodplains, wetlands, wild and scenic rivers, or 
ecologically sensitive areas;
    (b) Impacts on park lands and cultural or historic resources;
    (c) Impacts on human health and safety;
    (d) Impacts on air, soil, and water;
    (e) Impacts on prime agricultural lands;
    (f) Impacts to other species of wildlife, including endangered or 
threatened species;
    (g) Disproportionately high and adverse impacts on historically 
marginalized and or disadvantaged communities;
    (h) Any other socioeconomic or other potential effects; and
    (i) Any potential conflicts with other Federal, State, local, or 
Tribal environmental laws or requirements.

Scoping Meetings

    The issuance of this document provides an opportunity for public 
involvement in the scoping process to guide the development of the 
proposed rule and environmental review. The public comment period 
begins with the publication of this document in the Federal Register 
and will continue through the date set forth above in DATES. We will 
consider all comments on the scope of the proposed rulemaking and draft 
environmental review that are received or postmarked by that date. 
Comments received or postmarked after that date will be considered to 
the extent practicable.
    The Service will present information explaining this action in 
virtual scoping meetings during the public comment period. The purpose 
of scoping meetings is to provide the public with a general 
understanding of the background for this proposed rulemaking action, 
alternatives and activities it would cover, alternative proposals under 
consideration, and the Service's role and steps to be taken to develop 
the draft environmental documents for the proposed action. 
Additionally, the public comment period is to solicit suggestions and 
information on the scope of issues and alternatives for the Service to 
consider when preparing the draft environmental documents.
    To help protect the public and limit the spread of the COVID-19 
virus, the Service will hold virtual public scoping meetings to 
accommodate best practices and guidelines in place at the time this 
document was prepared. The virtual public scoping meetings will provide 
the Service an opportunity to present information on the scope of 
issues and alternatives for which we are requesting comment. No 
opportunity for oral comments will be provided. Written comments may be 
submitted by the methods listed in ADDRESSES. We will hold the 
following scoping meetings in webinar format.
    Meetings for federally recognized Native American Tribes:
     On October 26, 2021, from 12 p.m. to 1 p.m., Eastern Time.
     On October 28, 2021, from 3 p.m. to 5 p.m., Eastern Time.
     On November 2, 2021, from 1 p.m. to 3 p.m., Eastern Time.
    Meetings for the general public:
     On November 4, 2021, from 12 p.m. to 1 p.m., Eastern Time.
     On November 8, 2021, from 3 p.m. to 5 p.m., Eastern Time.
     On November 10, 2021, from 1 p.m. to 3 p.m., Eastern Time.

Registration instructions and updated session information can be 
accessed on the Service Migratory Bird Treaty Act web page at https://www.fws.gov/regulations/mbta/, or may be obtained from the person 
listed under FOR FURTHER INFORMATION CONTACT.

Scoping Webinar Accommodations

    Please note that the Service will ensure that the public scoping 
webinars will be accessible to members of the public with disabilities.

Public Comments

    To promulgate a proposed rule and prepare a draft environmental 
review pursuant to NEPA, we will take into consideration all comments 
and any additional information received. Please note that submissions 
merely stating support for or opposition to the proposed action and 
alternatives under consideration, without providing supporting 
information, will be noted but not considered by the Service in the 
environmental analysis. Please consider the following when preparing 
your comments:
    (a) Be as succinct as possible.
    (b) Be specific. Comments supported by logic, rationale, and 
citations are more useful than opinions.
    (c) State suggestions and recommendations clearly with an 
expectation of what you would like the Service to do.
    (d) If you propose an additional alternative for consideration, 
please provide supporting rationale and why you believe it to be a 
reasonable alternative that would meet the purpose and need for our 
proposed action.
    (e) If you provide alternate interpretations of science, please 
support your analysis with appropriate citations.
    The alternatives we develop will be analyzed in our draft 
environmental review pursuant to NEPA. We will give separate notice of 
the availability of the draft environmental review for public comment 
when it is completed. We may hold public hearings and informational 
sessions so that interested and affected people may comment and provide 
input into the final decision.

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with this action. Before including your address, phone 
number, email address, or other personal identifying information in 
your comment, you should be aware that the entire comment--including 
your personal identifying information--may be made publicly available 
at any time. While you can ask us in your comment to withhold your 
personal identifying information from public review, we cannot 
guarantee that we will be able to do so. Comments and materials we 
receive, as well as supporting documentation we use in preparing the 
environmental analysis, will be available for public inspection, by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service Headquarters (see ADDRESSES, above).
    Federally recognized Native American Tribes can request government-
to-government consultation via letter submitted at any time during this 
rulemaking process.

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Literature Cited

Rosenberg, K.V., A.M. Dokter, P.J. Blancher, J.R. Sauer, A.C. Smith, 
P.A. Smith, J.C. Stanton, A. Panjabi, L. Helft, M. Parr, P.P. Marra. 
Decline of the North American avifauna. Science. 04 OCT 2019: 120-
124.

Authority

    The authority for this action is the Migratory Bird Treaty Act of 
1918 (16 U.S.C. 703 et seq.) and the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.).

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-21474 Filed 9-30-21; 8:45 am]
BILLING CODE 4333-15-P