Governing the take of migratory birds under the Migratory Bird Treaty Act

What action is happening?

The U.S. Fish and Wildlife Service (Service) is announcing a series of decisions to ensure that the Migratory Bird Treaty Act (MBTA) works to conserve birds today and into the future. The Service published a final rule formally revoking the January 7, 2021, regulation that limited the scope of the Migratory Bird Treaty Act (MBTA) and an Advanced Notice of Proposed Rulemaking (ANPR) announcing the intent to solicit public comments and information as we consider developing proposed regulations to authorize the incidental take of migratory birds.

Why are these decisions so important for birds?

Over the last 50 years, an estimated 3 billion birds have been lost. Many of the 1,093 species of birds protected under the MBTA are experiencing population declines due to increased threats across the landscape. Both natural and human-caused sources of bird mortality have contributed to the decline of bird populations. Many industries and projects have voluntarily implemented beneficial practices to avoid and minimize the take of migratory birds; however, birds remain in decline. The Service seeks to better protect migratory bird populations through addressing human-caused mortality with a common-sense incidental take regulation (permit system).

Migratory bird conservation is an integral part of the Service's mission. The Service has heard from our partners, the public, tribes, and numerous other stakeholders from across the country that it is imperative we revoke the previous administration's rollback of the MBTA and ensure continued progress toward common-sense standards that protect birds and their habitats.

Therefore, the Service is announcing a series of publications and plans as we move forward to ensure that the Migratory Bird Treaty Act conserves birds today and into the future.

What documents are publishing now?

The Service is now issuing a final rule revoking the January 7 regulation, including all substantive public comments and the Service's response to these comments. This means that the Service will enforce the MBTA and investigate incidents where the prohibition on the incidental take of birds has been violated. The final revocation goes into effect on December 3, 2021.

The Service is also publishing the final economic documents, the Final Regulatory Flexibility Analysis and Final Revised Regulatory Impact Analysis, following public comments.

In addition, the Service is publishing a Final Record of Decision in compliance with the National Environmental Policy Act. The Record of Decision now states that the Service will implement Alternative B, the Environmentally Preferred Alternative, revoking the January 7 regulation and beginning a new process to promulgate a regulation that defines the scope of the MBTA's prohibitions to include actions that incidentally take migratory birds.

The Service also issued a Director's Order to provide instruction to Service employees, including expectations for conducting Service activities and prioritizing our law enforcement activities. The Service has a long history of working with stakeholders to foster relationships, provide guidance, and assist those who are looking to comply with the MBTA. We acknowledge that there are circumstances where some take of migratory birds may happen, even if best management practices are followed.

The Service's Office of Law Enforcement will focus investigative efforts on those entities that do not follow conservation measures provided to them, or work to avoid or minimize take. This Director's Order also goes into effect 60 days from the date of the publication of the final revocation of the January 7, 2021, rule.

In an effort to provide both meaningful bird conservation and clarity to the regulated communities, we are considering developing a system of regulations for authorizing incidental take. Thus, the Service is simultaneously publishing an ANPR, announcing the intent to develop a regulation authorizing the incidental take of migratory birds.

What is the final revocation rule?

The January 7, 2021 rule made significant changes to the scope of the MBTA to exclude prohibitions of incidental take of migratory birds, with an effective date of February 8. The Service then extended the effective date until March 8 and opened a public comment period. Rather than extending the effective date again, the agency believed the most transparent and efficient path forward was to immediately propose to revoke the rule through a new rulemaking.

On May 7, 2021, the Service published a proposal to revoke the January 7, 2021, final regulation that limited the scope of the Migratory Bird Treaty Act and opened a public comment period that solicited public comments on issues of fact, law and policy raised by the MBTA rule published on January 7. Then, the Service announced that two economic analyses documents associated with the proposed MBTA revocation rule were available and open for a public comment period as well.

During the open comment period for the proposed rule, the Service received 238 comments, including three that captured the petition of approximately 42,600 signatures to revoke the January 7 rule.

The Service has considered public comments on the proposed revocation rule and determined that the January 7 rule does not reflect the best reading of the MBTA's text, purpose, and history. It is also inconsistent with the majority of relevant court decisions addressing the issue, including the decision of the District Court for the Southern District of New York that expressly rejected the rationale offered in the rule. The January 7 rule's reading of the MBTA also raises serious concerns with a United States' treaty partner, and for the migratory bird resources protected by the MBTA and underlying treaties. Accordingly, we revoke the January 7 rule and remove the regulation codifying the interpretation set forth in the January 7 rule at 50 CFR 10.14.

The Service is now publishing the final rule to formally revoke the January 7 rule. With the final revocation rule, the Service is also publishing a Final Regulatory Flexibility Analysis and Final Revised Regulatory Impact Analysis.

The immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and long-standing agency practice prior to 2017.

What are the final economic documents?

Regulatory Impact Analysis

That ;Regulatory Impact Analysis analyzes the economic impacts, both costs and benefits, of the final revocation rule compared to not revoking the January 7, 2021, rule.

Final Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980 (Public Law 96-354) requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions.

The Act requires agencies to prepare and make available for public comment an Initial Regulatory Flexibility Analysis describing the impact of proposed rules on small entities unless the agency can certify that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

While the Service concludes that certification is likely appropriate in this case, and consistent with our analysis of economic impacts under the January 7 rule, we developed an Initial Regulatory Flexibility Analysis out of an abundance of caution to ensure that economic impacts on small entities are fully accounted for in this rulemaking process.

The Service is now publishing that final Regulatory Flexibility Analysis as well.

What is the Director's Order?

The immediate effect of the final revocation rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and long-standing agency practice prior to 2017.

The Director's Order provides background and instruction to Service employees, including expectations for conducting Service activities and prioritizing our law enforcement activities. The Service has a long history of working with stakeholders to foster relationships, provide guidance, and assist those who are looking to comply with the MBTA. We acknowledge that there are circumstances where some take of migratory birds may happen, even if best management practices are followed. The Service's Office of Law Enforcement will focus their investigative efforts on those entities that do not follow conservation measures provided to them, or work to avoid or minimize take.

With this Order, the Service returns to the policy implemented for the previous several decades by the Service, the Department of the Interior, and the Department of Justice.

A wide range of activities can result in the incidental take of migratory birds, including activities the general public and public and private sector entities conduct. Most individuals, companies, and other entities have an interest in, and in the case of federal entities, a responsibility for, protecting migratory birds. There are currently no comprehensive regulatory mechanisms available to authorize incidental take. However, to assist in avoiding and minimizing incidental take of migratory birds, the Service provides technical assistance, directing entities to known activity-specific beneficial practices and makes recommendations for unique circumstances. Under this Order, the Service will continue to provide technical assistance and prioritize enforcement matters, consistent with judicial precedent.

This Director's Order goes into effect 60 days from the date of the final revocation of the January 7, 2021, rule.

What is the policy on enforcement of incidental take of migratory birds?

The Service will focus law enforcement efforts on specific types of activities that foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take. Our intention through this policy is to nationally apply a transparent and uniform approach to managing and prioritizing our enforcement of incidental take, consistent with judicial precedent.

The following types of conduct are not a priority for enforcement:

• A member of the general public conducting otherwise legal activities that incidentally take migratory birds,
• A federal agency conducting activities in accordance with a signed memorandum of understanding with the Service for the conservation of migratory birds,
• An entity conducting activities in accordance with known activity-specific beneficial practices for avoiding and minimizing incidental take, or
• An entity conducting activities in accordance with beneficial practices recommended through Service or other agency technical assistance.

The Service prioritizes the following types of conduct for enforcement:

• Incidental take that is the result of an illegal activity; and
• Activities by a public or private sector entity:
  • that are otherwise legal,
  • where incidental take was foreseeable, and
  • where known activity-specific beneficial practices were not implemented, or the Service or other agency(ies) provided technical assistance and identified beneficial practices, but they were not implemented.

What is the policy on Service activities that may result in incidental take of migratory birds?

Service offices and field station personnel must review their activities to determine if incidental take is likely. Common actions that may affect migratory birds include, but are not limited to, infrastructure construction, including roads, vegetation clearing and management, controlled burns, and invasive species invasive species
An invasive species is any plant or animal that has spread or been introduced into a new area where they are, or could, cause harm to the environment, economy, or human, animal, or plant health. Their unwelcome presence can destroy ecosystems and cost millions of dollars.

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If an activity is likely to result in incidental take of migratory birds, personnel must develop and implement beneficial practices to avoid or minimize the take of birds. The Service also expects office and field station personnel to ensure their activities minimize negative impacts to migratory bird habitats to promote the conservation of migratory bird populations.

Personnel may consult with the regional Migratory Bird Program staff to review actions for potential effects to migratory birds and their habitats and to provide technical assistance on beneficial practices to avoid or minimize those effects.

What birds are covered under the Service's policy for enforcement of incidental take?

A Migratory bird is defined in 50 CFR 10.12 to be "any bird, whatever its origin and whether or not raised in captivity, which belongs to a species listed in §10.13, or which is a mutation or a hybrid of any such species, including any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof."

The list of protected birds is maintained in regulation at 50 CFR 10.13 and includes over 1,000 species. Birds are protected based on whether their species, family, or taxonomic group is covered under at least one of the four bilateral migratory bird treaties. Birds are protected even if they do not migrate, no matter their origin, and whether or not they are raised in captivity (50 CFR 10.12).

What are some examples of how the Service will encourage companies to apply best management practices, and apply enforcement discretion of incidental take?

Example: A person is driving their car down the highway, when a bird flies in front of their car and they unfortunately strike the bird, killing it with their car. Would this be a violation of MBTA now that the January 7 rule is revoked?

Answer: ;The Service uses enforcement discretion when investigating and enforcing the MBTA. In this case, striking a bird with a vehicle is unforeseeable and thus generally unavoidable. Thus, the Service would not prioritize the enforcement of vehicle strikes.

Example: An electric utility company has been experiencing power outages due to the electrocution of birds of prey (i.e., hawks, eagles) and other large birds (e.g., herons) on power distribution poles. Are these electrocutions considered incidental take now that the January 7 rule has been revoked?

Answer: Yes. Any take of a bird listed within 50 CFR 10.13 (the list of birds protected by the MBTA) taken as a result from, but is not the purpose of, an activity is considered incidental take and thus is prohibited by the MBTA. In the case of power pole electrocutions, the Service would work with the utility company to identify appropriate beneficial practices meant to avoid or minimize the incidental take of migratory birds. In demonstrating the company's due diligence to reduce the take of birds on their infrastructure, the Service's Office of Law Enforcement could use its discretion on the enforcement of the MBTA as it relates to incidental take. Conversely, if the company chooses not to adopt the recommended beneficial practices, it may be more susceptible to face enforcement actions for the incidental take of migratory birds.

Example: Prior to the construction of an oil pipeline, the project proponent must clear a linear work zone of all vegetation. The vegetation clearly contains nesting birds. How would the company strive to avoid or minimize the incidental take of migratory birds?

Answer: All project proponents should strive to develop projects in the least environmentally damaging manner. The Service works with anyone that seeks to reduce impacts to birds, including direct take. Technical assistance helps project proponents demonstrate "due diligence" when trying to reduce impacts to migratory birds. The project proponent should engage the Service early in project planning and discuss where project-related activities might take migratory birds. Working with the Service, a suite of appropriate beneficial practices can be identified and implemented to avoid or minimize the take of nesting migratory birds.

What is the Record of Decision?

As part of the original 2020 Environmental Impact Statement, the Service proposed a no action alternative and two action alternatives:

• The no action alternative means that the Service would continue to implement the MBTA consistent with the direction given in M-Opinion 37050, which defined the scope of the MBTA to exclude incidental take. In accordance with M-37050, the Service's enforcement of the MBTA was focused on purposeful actions directed at migratory birds.
• Alternative A was to promulgate regulations to define the scope of the MBTA regarding incidental take consistent with M-37050. This was the Service's preferred alternative, as we published a proposed rule on February 3, 2020, defining the scope of the MBTA take prohibitions to actions directed at migratory birds as purposeful.
• Alternative B would withdraw M-Opinion 37050 and the Service would promulgate a regulation to implement the MBTA as it applies to incidental take under the prior interpretation outlined in M-Opinion 37041. By reverting to the prior interpretation, the Service would view the incidental take of migratory birds as a violation of the MBTA.

The Service then published a Record of Decision in compliance with the National Environmental Policy Act on December 31, 2020, as part of the process leading up to the January 7, 2021 final regulation limiting the scope of the MBTA, choosing Alternative A.

As the January 7 rule has now been revoked, the Service is also publishing a revised Record of Decision that documents the change in previous decision of the Service to exclude incidental take.

The Record of Decision now states that the Service will implement Alternative B, the Environmentally Preferred Alternative, revoking the January 7 regulation and beginning a new process to promulgate a regulation that defines the scope of the MBTA's prohibitions to include actions that incidentally take migratory birds.

This Environmentally Preferred Alternative better meets the purpose and need under NEPA, and better reflects the best reading of the MBTA's text, purpose, and history. It is also more consistent with the majority of relevant court decisions. Alternative B is also likely to result in reduced environmental consequences compared to the No Action Alternative or Alternative A.

What is the Advanced Notice of Proposed Rulemaking?

The final revocation of the January 7, 2021 rule was the first critical step in ensuring a continued progressive path towards commonsense standards that protect birds. The next logical step is to create an approach and regulation authorizing the incidental take of migratory birds that works to both conserve birds and provide regulatory certainty to industry and stakeholders.

Therefore, the Service is publishing an ANPR announcing our intent to solicit public comments and information as we consider developing proposed regulations to authorize the incidental take of migratory birds.

And as part of the development of these regulations, the Service is also preparing a draft Environmental Impact Statement pursuant to the National Environmental Policy Act of 1969, as amended.

The Service will initiate a new public scoping process to engage in meaningful conversations with our partners and stakeholders, receive suggestions, identify significant issues, and share information on the scope of issues and alternatives we should consider.

What does the ANPR propose?

The Service is publishing this ANPR 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.

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, the Service is interested in comments regarding whether and how the agency 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:

• Exceptions to permits;
• General permits for certain activity types; and
• Specific, or individual permits under limited circumstances.

To apply this approach, the Service must identify criteria for when a given project qualifies for an exception to 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 is also seeking criteria such as infrastructure design, implemented avoidance and minimization beneficial practices, geographic location, or others. In addition, the Service is seeking input on what beneficial practices should be required of permittees.

How can the public participate in this process?

The Service will invite public comments and host virtual public scoping meetings for the general public, stakeholders, and Tribes following the publication in the Federal Register. Registration instructions and updated information will be posted online.

The virtual public scoping meetings will provide the Service an opportunity to present information pertinent to this action and for the public to ask questions on the scope of issues and alternatives we should consider when preparing the EIS. No opportunity for oral comments will be provided.

The Service will 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 on the identification of effects that might be caused by regulating incidental take of migratory birds.

You may submit written comments electronically via the Federal Register publication of the ANPR. We will post all comments on http://www.regulations.gov/, including any personal information you provide.

Does this action affect other laws or treaties?

Activities found in violation of other federal, state, local, or tribal laws or regulations and that cause incidental take of birds would remain subject to potential enforcement under the MBTA.

This final revocation rule or the advanced notice of proposed rulemaking announcement does not affect the Endangered Species Act, the Bald and Golden Eagle Protection Act, or any state laws and regulations.

Depending on the circumstances, other laws that protect natural resources, including the Endangered Species Act, Bald and Golden Eagle Protection Act and Oil Pollution Act, as well as an array of state laws, may apply and will be appropriately enforced by the Service, other federal agencies and the states.