Today, the U.S. Fish and Wildlife Service (Service) is proposing a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.
This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.
Background: the USFWS under this Administration developed a policy known as an M-Opinion, which is internal agency policy, stating that the law does not prohibit incidental take of migratory bird species protected under the Migratory Bird Treaty Act.
The policy has been in litigation in the U.S. District Court for the Southern District of New York for some time and is still pending. It is unlikely to be adjudicated before June of this year and any decision will be appealed.
Throughout this time, the USFWS has stated that it intends to promulgate a formal regulation. Doing so would obviate one of the key aspects of the legal challenge - that there was no opportunity for public input. Under the Administrative Procedure Act, public input is required when a formal regulation is proposed.
“With five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds,” said Assistant Secretary for Fish and Wildlife and Parks Rob Wallace. “That said, we will continue to work collaboratively with states, cities, conservation groups, industries, trade associations and citizens to ensure that best practices are followed to minimize unintended harm to birds and their habitats.”
“The mission of the U.S. Fish and Wildlife Service is to conserve wildlife and habitats for the continuing benefit of the American people. Bird conservation is an integral part of that mission. We are taking action today to make sure our rules and regulations are clear,” said Aurelia Skipwith, Director of the U.S. Fish and Wildlife Service. “We look forward to an open and transparent process that will ensure ample opportunity for public input.”
This action codifies the 2017 Department of the Interior Solicitor’s Office Opinion M–37050, which analyzed the scope of the MBTA and determined the act only applies to the intentional take of migratory birds and that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds. The Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected by the Solicitor’s Opinion M-37050 or the proposed regulation.
The proposed rule will change how the Service administers the MBTA, and the Service has determined an Environmental Impact Statement under the National Environmental Policy Act is the most efficient and comprehensive approach for considering the potential impacts of this action on the environment. This is the first step in an open and transparent public process that the Service will continue to manage throughout the development of the rulemaking process. The public is encouraged to provide input to help ensure that these changes are clear, effective and advance the goal of migratory bird conservation.
When this Notice of Intent publishes in the Federal Register, it will begin a 45-day scoping process during which we solicit public input to help define the range of issues and possible alternatives to be addressed in the Environmental Impact Statement. The public scoping period will take place from February 3, 2020 - March 19, 2020.
The proposed rule will publish in the Federal Register on February 3, 2020, beginning a 45-day public comment period and will include details on how to submit comments. Written comments and information must be received on or before March 19, 2020, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-HQ-MB-2018-0090.
U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-HQ-MB-2018-0090; U.S. Fish and Wildlife Service; MS: JAO/1N; 5275 Leesburg Pike; Falls Church, VA 22041–3803.
We will not accept email or faxes. We will post all comments on http://www.regulations.gov, including any personal information you provide.
Interims copies of the proposed rule and notice of intent are now available.
More information related to this proposed rule, scoping and other associated materials, can be found online at: https://fws.gov/migratorybirds/2020Regulation.php.
Edited by Ellen Paul