1134 Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 10 

[Docket No. FWS–HQ–MB–2018–0090; 

FF09M22000–201–FXMB1231090BPP0] 

RIN 1018–BD76 

Regulations Governing Take of 

Migratory Birds 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS, Service, we), 

define the scope of the Migratory Bird 

Treaty Act (MBTA or Act) as it applies 

to conduct resulting in the injury or 

death of migratory birds protected by 

the Act. We determine that the MBTA’s 

prohibitions on pursuing, hunting, 

taking, capturing, killing, or attempting 

to do the same, apply only to actions 

directed at migratory birds, their nests, 

or their eggs. 

DATES: This rule is effective February 8, 

2021. 

ADDRESSES: Public comments submitted 

on the proposed rule and 

supplementary documents to the 

proposed rule, including the 

environmental impact statement and 

regulatory impact analysis, may be 

found at the Federal rulemaking portal 

http://www.regulations.gov in Docket 

No. FWS–HQ–MB–2018–0090. 

FOR FURTHER INFORMATION CONTACT: 

Jerome Ford, Assistant Director, 

Migratory Birds, at 202–208–1050. 

SUPPLEMENTARY INFORMATION: 

Background 

The Migratory Bird Treaty Act 

(MBTA; 16 U.S.C. 703 et seq.) was 

enacted in 1918 to help fulfill the 

United States’ obligations under the 

1916 ‘‘Convention between the United 

States and Great Britain for the 

protection of Migratory Birds.’’ 39 Stat. 

1702 (Aug. 16, 1916) (ratified Dec. 7, 

1916) (Migratory Bird Treaty). The list 

of applicable migratory birds protected 

by the MBTA is currently codified in 

title 50 of the Code of Federal 

Regulations at 50 CFR 10.13. In its 

current form, section 2(a) of the MBTA 

provides in relevant part that, unless 

permitted by regulations, it is unlawful: 

at any time, by any means or in any manner, 

to pursue, hunt, take, capture, kill, attempt to 

take, capture, or kill, possess, offer for sale, 

sell, offer to barter, barter, offer to purchase, 

purchase, deliver for shipment, ship, export, 

import, cause to be shipped, exported, or 

imported, deliver for transportation, 

transport or cause to be transported, carry or 

cause to be carried, or receive for shipment, 

transportation, carriage, or export, any 

migratory bird, 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. . . . 

16 U.S.C. 703(a). 

Section 3(a) of the MBTA authorizes 

and directs the Secretary of the Interior 

to ‘‘adopt suitable regulations’’ allowing 

‘‘hunting, taking, capture, killing, 

possession, sale, purchase, shipment, 

transportation, carriage, or export of any 

such bird, or any part, nest, or egg 

thereof’’ while considering (‘‘having due 

regard to’’) temperature zones and 

‘‘distribution, abundance, economic 

value, breeding habits, and times and 

lines of migratory flight of such birds.’’ 

16 U.S.C. 704(a). Section 3(a) also 

requires the Secretary to ‘‘determine 

when, to what extent, if at all, and by 

what means, it is compatible with the 

terms of the conventions [listed in 

section 2 between the United States and 

Canada, Mexico, Russia, and Japan]’’ to 

adopt such regulations allowing these 

otherwise-prohibited activities. Id.; see 

also Convention between the United 

States and Great Britain for the 

Protection of Migratory Birds, U.S.-Gr. 

Brit., Aug. 16, 1916, 39 Stat. 1702, 

amended by the Protocol between the 

United States and Canada Amending the 

1916 Convention for the Protection of 

Migratory Birds in Canada and the 

United States, U.S.-Can., Dec. 14, 1995, 

T.I.A.S. 12721; Convention between the 

United States of America and Mexico 

for the Protection of Migratory Birds and 

Game Mammals, U.S.-Mex., Feb. 7, 

1936, 50 Stat. 1311, and Agreement 

Supplementing the Agreement of 

February 7, 1936, U.S.-Mex., Mar. 10, 

1972, 23 U.S.T. 260; Convention 

between the Government of the United 

States of America and the Government 

of Japan for the Protection of Migratory 

Birds and Birds in Danger of Extinction, 

and their Environment, U.S.-Japan, Mar. 

4, 1972, 25 U.S.T. 3329; and Convention 

between the United States of American 

and the Union of Soviet Socialist 

Republics Concerning the Conservation 

of Migratory Birds and their 

Environment, U.S.-U.S.S.R., Nov. 19, 

1976, 29 U.S.T. 4647. 

On December 22, 2017, the Principal 

Deputy Solicitor of the Department of 

the Interior, exercising the authority of 

the Solicitor pursuant to Secretary’s 

Order 3345, issued a legal opinion, M– 

37050, ‘‘The Migratory Bird Treaty Act 

Does Not Prohibit Incidental Take’’ (M– 

37050 or M-Opinion). The Solicitor’s 

interpretation marked a change from 

prior U.S. Fish and Wildlife Service 

interpretations and an earlier Solicitor’s 

Opinion, M–37041, ‘‘Incidental Take 

Prohibited Under the Migratory Bird 

Treaty Act.’’ The Office of the Solicitor 

performs the legal work for the 

Department of the Interior, including 

the U.S. Fish and Wildlife Service 

(hereafter ‘‘Service’’). The Service is the 

Federal agency delegated the primary 

responsibility for managing migratory 

birds. 

M–37050 thoroughly examined the 

text, history, and purpose of the MBTA 

and concluded that the MBTA’s 

prohibitions on pursuing, hunting, 

taking, capturing, killing, or attempting 

to do the same apply only to actions that 

are directed at migratory birds, their 

nests, or their eggs. On August 11, 2020, 

a district court vacated M–37050, 

holding that the language of the MBTA 

plainly prohibits incidental take, 

despite multiple courts failing to agree 

on how to interpret the relevant 

statutory language. Natural Res. Defense 

Council v. U.S. Dep’t of the Interior, 

2020 WL 4605235 (S.D.N.Y.). The 

Department of Justice filed a notice of 

appeal on October 8, 2020. We 

respectfully disagree with the district 

court’s decision and have addressed the 

court’s findings where appropriate in 

the discussion below. Moreover, M– 

37050 is consistent with the Fifth 

Circuit appellate court decision in 

United States v. CITGO Petroleum 

Corp., 801 F.3d 477 (5th Cir. 2015), 

which held that the MBTA does not 

prohibit incidental take. 

This rule addresses the Service’s 

responsibilities under the MBTA. 

Consistent with the language and 

legislative history of the MBTA, as 

amended, and relevant case law, the 

Service defines the scope of the MBTA’s 

prohibitions to reach only actions 

directed at migratory birds, their nests, 

or their eggs. 

Provisions of the Final Rule 

Scope of the Migratory Bird Treaty Act 

As a matter of both law and policy, 

the Service hereby adopts the 

conclusion of M–37050 in a regulation 

defining the scope of the MBTA. M– 

37050 is available on the internet at the 

Federal eRulemaking Portal: http://

www.regulations.gov in Docket No. 

FWS–HQ–MB–2018–0090 and at 

https://www.doi.gov/solicitor/opinions. 

The text and purpose of the MBTA 

indicate that the MBTA’s prohibitions 

on pursuing, hunting, taking, capturing, 

killing, or attempting to do the same 

only criminalize actions that are 

specifically directed at migratory birds, 

their nests, or their eggs. 


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The relevant portion of the MBTA 

reads, ‘‘it shall be unlawful at any time, 

by any means or in any manner, to 

pursue, hunt, take, capture, kill, attempt 

to take, capture, or kill . . . any 

migratory bird, [or] any part, nest, or egg 

of any such bird.’’ 16 U.S.C. 703(a). Of 

the five referenced verbs, three—pursue, 

hunt, and capture—unambiguously 

require an action that is directed at 

migratory birds, nests, or eggs. To wit, 

according to the entry for each word in 

a contemporary dictionary: 

• Pursue means ‘‘[t]o follow with a 

view to overtake; to follow eagerly, or 

with haste; to chase.’’ Webster’s Revised 

Unabridged Dictionary 1166 (1913); 

• Hunt means ‘‘[t]o search for or 

follow after, as game or wild animals; to 

chase; to pursue for the purpose of 

catching or killing.’’ Id. at 713; and 

• Capture means ‘‘[t]o seize or take 

possession of by force, surprise, or 

stratagem; to overcome and hold; to 

secure by effort.’’ Id. at 215. 

Thus, one does not passively or 

accidentally pursue, hunt, or capture. 

Rather, each requires a deliberate action 

specifically directed at achieving a goal. 

By contrast, the verbs ‘‘kill’’ and 

‘‘take’’ are ambiguous in that they could 

refer to active or passive conduct, 

depending on the context. See id. at 813 

(‘‘kill’’ may mean the more active ‘‘to 

put to death; to slay’’ or serve as the 

general term for depriving of life); id. at 

1469 (‘‘take’’ has many definitions, 

including the more passive ‘‘[t]o receive 

into one’s hold, possession, etc., by a 

voluntary act’’ or the more active ‘‘[t]o 

lay hold of, as in grasping, seizing, 

catching, capturing, adhering to, or the 

like; grasp; seize;—implying or 

suggesting the use of physical force’’). 

Any ambiguity inherent in the 

statute’s use of the terms ‘‘take’’ and 

‘‘kill’’ is resolved by applying 

established rules of statutory 

construction. First and foremost, when 

any words ‘‘are associated in a context 

suggesting that the words have 

something in common, they should be 

assigned a permissible meaning that 

makes them similar.’’ Antonin Scalia & 

Bryan A. Garner, Reading the Law: The 

interpretation of Legal Texts, 195 (2012); 

see also Third Nat’l Bank v. Impac, Ltd., 

432 U.S. 312, 321 (1977) (‘‘As always, 

‘[t]he meaning of particular phrases 

must be determined in context’ . . . .’’ 

(quoting SEC v. Nat’l Sec., Inc., 393 U.S. 

453, 466 (1969)); Beecham v. United 

States, 511 U.S. 368, 371 (1994) (the fact 

that ‘‘several items in a list share an 

attribute counsels in favor of 

interpreting the other items as 

possessing that attribute as well’’). 

Section 2 of the MBTA groups together 

five verbs—‘‘pursue,’’ ‘‘hunt,’’ ‘‘take,’’ 

‘‘capture,’’ and ‘‘kill.’’ Accordingly, the 

statutory construction canon of noscitur 

a sociis (‘‘it is known by its associates’’) 

counsels in favor of reading each verb 

to have a related meaning. See Scalia & 

Garner at 195 (‘‘The canon especially 

holds that ‘words grouped in a list 

should be given related meanings.’’’ 

(quoting Third Nat’l Bank, 432 U.S. at 

322)). 

Thus, when read together with the 

other active verbs in section 2 of the 

MBTA, the proper meaning is evident. 

The operative verbs (‘‘pursue, hunt, 

take, capture, kill’’) ‘‘are all affirmative 

acts . . . which are directed 

immediately and intentionally against a 

particular animal—not acts or omissions 

that indirectly and accidentally cause 

injury to a population of animals.’’ 

Sweet Home, 515 U.S. at 719–20 (Scalia, 

J., dissenting) (agreeing with the 

majority opinion that certain terms in 

the definition of the term ‘‘take’’ in the 

Endangered Species Act (ESA)— 

identical to the other prohibited acts 

referenced in the MBTA—refer to 

deliberate actions, while disagreeing 

that the use of the additional 

definitional term ‘‘harm’’—used only in 

the ESA—meant that ‘‘take’’ should be 

read more broadly to include actions not 

deliberately directed at covered 

species); see also United States v. 

CITGO Petroleum Corp., 801 F.3d 477, 

489 n.10 (5th Cir. 2015) (‘‘Even if ‘kill’ 

does have independent meaning [from 

‘take’], the Supreme Court, interpreting 

a similar list in the [Endangered Species 

Act], concluded that the terms pursue, 

hunt, shoot, wound, kill, trap, capture, 

and collect, generally refer to deliberate 

actions’’); cf. Sweet Home, 515 U.S. at 

698 n.11 (Congress’s decision to 

specifically define ‘‘take’’ in the ESA 

obviated the need to define its commonlaw meaning). We explain the meaning 

of the terms ‘‘take’’ and ‘‘kill’’ in the 

context of section 2 in turn below. 

The notion that ‘‘take’’ refers to an 

action directed immediately against a 

particular animal is supported by the 

use of the word ‘‘take’’ in the common 

law. As the Supreme Court has 

instructed, ‘‘absent contrary indications, 

Congress intends to adopt the common 

law definition of statutory terms.’’ 

United States v. Shabani, 513 U.S. 10, 

13 (1994). As Justice Scalia noted, ‘‘the 

term [‘take’] is as old as the law itself.’’ 

Sweet Home, 515 U.S. at 717 (Scalia, J., 

dissenting). For example, the Digest of 

Justinian places ‘‘take’’ squarely in the 

context of acquiring dominion over wild 

animals, stating: 

[A]ll the animals which can be taken upon 

the earth, in the sea, or in the air, that is to 

say, wild animals, belong to those who take 

them. . . . Because that which belongs to 

nobody is acquired by the natural law by the 

person who first possesses it. We do not 

distinguish the acquisition of these wild 

beasts and birds by whether one has captured 

them on his own property [or] on the 

property of another; but he who wishes to 

enter into the property of another to hunt can 

be readily prevented if the owner knows his 

purpose to do so. 

Geer v. Connecticut, 161 U.S. 519, 523 

(1896) (quoting Digest, Book 41, Tit. 1, 

De Adquir. Rer. Dom.). Likewise, 

Blackstone’s Commentaries provide: 

A man may lastly have a qualified property 

in animals feroe naturoe, propter privilegium, 

that is, he may have the privilege of hunting, 

taking and killing them in exclusion of other 

persons. Here he has a transient property in 

these animals usually called game so long as 

they continue within his liberty, and may 

restrain any stranger from taking them 

therein; but the instant they depart into 

another liberty, this qualified property 

ceases. 

Id. at 526–27 (1896) (quoting 2 

Blackstone Commentary 410). 

Dictionary definitions of the term 

‘‘take’’ at the time of MBTA enactment 

were consistent with this historical use 

in the context of hunting and capturing 

wildlife. For example, Webster’s defined 

‘‘take’’ to comprise various actions 

directed at reducing a desired object to 

personal control: ‘‘to lay hold of; to 

seize with the hands, or otherwise; to 

grasp; to get into one’s hold or 

possession; to procure; to seize and 

carry away; to convey.’’ Webster’s 

Revised Unabridged Dictionary 1469 

(1913). 

Thus, under common law ‘‘[t]o ‘take,’ 

when applied to wild animals, means to 

reduce those animals, by killing or 

capturing, to human control.’’ Sweet 

Home, 515 U.S. at 717 (Scalia, J., 

dissenting); see also CITGO, 801 F.3d at 

489 (‘‘Justice Scalia’s discussion of 

‘take’ as used in the Endangered Species 

Act is not challenged here by the 

government . . . because Congress gave 

‘take’ a broader meaning for that 

statute.’’). As is the case with the ESA, 

in the MBTA, ‘‘[t]he taking prohibition 

is only part of the regulatory plan . . ., 

which covers all stages of the process by 

which protected wildlife is reduced to 

man’s dominion and made the object of 

profit,’’ and, as such, is ‘‘a term of art 

deeply embedded in the statutory and 

common law concerning wildlife’’ that 

‘‘describes a class of acts (not omissions) 

done directly and intentionally (not 

indirectly and by accident) to particular 

animals (not populations of animals).’’ 

Sweet Home, 515 U.S. at 718 (Scalia, J., 

dissenting). The common-law meaning 

of the term ‘‘take’’ is particularly 

important here because, unlike the ESA, 

which specifically defines the term 


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‘‘take,’’ the MBTA does not define 

‘‘take’’—instead it includes the term in 

a list of similar actions. Thus, the Sweet 

Home majority’s ultimate conclusion 

that Congress’s decision to define ‘‘take’’ 

in the ESA obviated the need to divine 

its common-law meaning is inapplicable 

here. See id. at 697, n.10. Instead, the 

opposite is true. Congress intended 

‘‘take’’ to be read consistent with its 

common law meaning—to reduce birds 

to human control. 

It is also reasonable to conclude that 

the MBTA’s prohibition on killing is 

similarly limited to deliberate acts that 

result in bird deaths. See Newton 

County Wildlife Ass’n v. U.S. Forest 

Serv., 113 F.3d 110, 115 (8th Cir. 1997) 

(‘‘MBTA’s plain language prohibits 

conduct directed at migratory 

birds. . . . [T]he ambiguous terms ‘take’ 

and ‘kill’ in 16 U.S.C. 703 mean 

‘physical conduct of the sort engaged in 

by hunters and poachers. . . .’ ’’ 

(quoting Seattle Audubon Soc’y v. 

Evans, 952 F.2d 297, 302 (9th Cir. 

1991))); United States v. CITGO 

Petroleum Corp., 801 F.3d 477, 489 n.10 

(5th Cir. 2015) (‘‘there is reason to think 

that the MBTA’s prohibition on ‘killing’ 

is similarly limited to deliberate acts 

that effect bird deaths’’). 

By contrast, the NRDC court 

interpreted ‘‘kill’’ more expansively, 

holding that, in combination with the 

phrase ‘‘by any means or in any 

manner,’’ the MBTA unambiguously 

prohibits incidental killing. The court 

centered its reading of section 2 around 

its conclusion that any means of killing 

migratory birds is prohibited, whether 

the killing is the result of an action 

directed at a migratory bird or wholly 

the result of passive conduct. While the 

term ‘‘kill’’ can certainly be interpreted 

broadly in a general sense, we disagree 

that ‘‘kill’’ should take on its most 

expansive meaning in the context of 

section 2 of the MBTA. 

Additionally, the NRDC court found 

no meaningful difference between active 

and passive definitions of the term 

‘‘kill.’’ The court focused on one 

possible reading of ‘‘kill,’’ meaning ‘‘to 

deprive of life,’’ which could be 

construed as either active or passive 

conduct. However, the term ‘‘kill’’ can 

be read purely as an active verb, 

meaning, ‘‘to put to death; to slay.’’ 

When contrasted with the more passive 

definition as the general term for 

depriving of life, the difference is clear. 

Focusing on that difference and reading 

the term ‘‘kill’’ in relation to the other 

prohibited actions in section 2 before it, 

there is a compelling reason to read the 

term ‘‘kill’’ in an active sense. That is, 

all the words before the word ‘‘kill’’ are 

active verbs. Thus, the NRDC court 

erred in conflating the active and 

passive definitions of the word ‘‘kill’’ 

and finding no meaningful difference 

between the two. The cases cited by the 

court in footnote 13 interpreting the 

term ‘‘kill’’ do so in the context of 

criminal homicide, which 

unsurprisingly interprets ‘‘kill’’ in the 

broader sense. These cases are also 

inapposite because they do not interpret 

the term ‘‘kill’’ in relation to adjacent, 

related terms that could be read to limit 

effectively the scope of ‘‘kill’’ in its 

general sense. Instead, because the term 

‘‘kill’’ is ambiguous in the context of 

section 2, we must read ‘‘kill’’ along 

with the preceding terms and conclude 

they are all active terms describing 

active conduct. 

The NRDC district court predicated its 

broad reading of ‘‘kill’’ primarily on the 

notion that a narrower reading would 

read the term out of the Act by 

depriving it of independent meaning. 

The court reasoned that it is difficult to 

conceive of an activity where ‘‘kill’’ 

applies, but ‘‘hunt’’ and ‘‘take’’ do not. 

To the contrary, there are several 

situations where ‘‘kill’’ retains 

independent meaning. For example, 

consistent with a product’s usage as 

authorized by the Environmental 

Protection Agency and based on its 

intended usage, a farmer could spread 

poisoned bait to kill birds depredating 

on her crops. That action is directed at 

birds but does not ‘‘take’’ them in the 

common law sense that ‘‘take’’ means to 

reduce wildlife to human physical 

control, and it could also not be fairly 

characterized as hunting, pursuing, or 

capturing them either. Instead, the 

action was directed at protecting the 

farmer’s crops from the birds, but not 

physically possessing or controlling the 

birds in any way other than killing 

them. Likewise, a county road and 

highway department could use 

machinery to destroy bird nests under a 

bridge. Any chicks within those nests 

would likely be destroyed killing those 

chicks, but the maintenance workers 

would not ‘‘take’’ them in the common 

law sense. Moreover, as noted above, at 

least two appellate courts have 

specifically found that the terms ‘‘take’’ 

and ‘‘kill’’ are ambiguous and apply to 

physical conduct of hunters and 

poachers. Newton County; Seattle 

Audubon. 

This conclusion is also supported by 

the Service’s longstanding 

implementing regulations, which define 

‘‘take’’ to mean ‘‘to pursue, hunt, shoot, 

wound, kill, trap, capture, or collect’’ or 

attempt to do the same. 50 CFR 10.12. 

The component actions of ‘‘take’’ 

involve direct actions to reduce animals 

to human control. As such, they 

‘‘reinforce[ ] the dictionary definition, 

and confirm[ ] that ‘take’ does not refer 

to accidental activity or the unintended 

results of passive conduct.’’ Brigham Oil 

& Gas, 840 F. Supp. 2d at 1209. 

To support an argument that the terms 

‘‘take’’ and ‘‘kill’’ should be read 

expansively to include incidental 

conduct, a number of courts including 

the NRDC court, as well as the prior MOpinion, focused on the MBTA’s 

direction that a prohibited act can occur 

‘‘at any time, by any means, in any 

manner’’ to support the conclusion that 

the statute prohibits any activity that 

results in the death of a bird, which 

would necessarily include incidental 

take. However, the quoted statutory 

language does not change the nature of 

those prohibited acts and simply 

clarifies that activities directed at 

migratory birds, such as hunting and 

poaching, are prohibited whenever and 

wherever they occur and whatever 

manner is applied, be it a shotgun, a 

bow, or some other creative approach to 

deliberately taking birds. See generally 

CITGO, 801 F.3d at 490 (‘‘The addition 

of adverbial phrases connoting ‘means’ 

and ‘manner,’ however, does not serve 

to transform the nature of the activities 

themselves. For instance, the manner 

and means of hunting may differ from 

bow hunting to rifles, shotguns, and air 

rifles, but hunting is still a deliberately 

conducted activity. Likewise, rendering 

all-inclusive the manner and means of 

‘taking’ migratory birds does not change 

what ‘take’ means, it merely modifies 

the mode of take.’’). 

The NRDC court countered that 

referencing different manners of taking 

birds does not give effect to the ‘‘by any 

means and in any manner’’ language, 

but instead clarifies the term ‘‘hunt’’ 

because the referenced activities are 

primarily different means of hunting. 

However, other actions such as 

poisoning bait to control birds 

depredating on crops would ‘‘kill’’ birds 

outside the context of hunting. Many 

other methods of hunting, capturing, 

pursuing, taking, or killing birds no 

doubt exist, and that is precisely the 

point. Congress used the operative 

language to ensure that any method 

employed could amount to a violation 

of the MBTA, so long as it involves one 

of the enumerated prohibited actions 

and is directed at migratory birds. 

The prior Solicitor’s Opinion, M– 

37041, took a different tack from the 

NRDC court and assumed that because 

the criminal misdemeanor provision of 

the MBTA is a strict-liability crime, 

meaning that no mens rea or criminal 

intent is required for a violation to have 

taken place, any act that takes or kills 

a bird must be covered as long as the act 


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results in the death of a bird. In making 

that assumption, M–37041 improperly 

ignored the meaning and context of the 

actual acts prohibited by the statute. 

Instead, the opinion presumed that the 

lack of a mental state requirement for a 

misdemeanor violation of the MBTA 

equated to reading the prohibited acts 

‘‘kill’’ and ‘‘take’’ as broadly applying to 

actions not specifically directed at 

migratory birds, so long as the result is 

their death or injury. However, the 

relevant acts prohibited by the MBTA 

are voluntary acts directed at killing or 

reducing an animal to human control, 

such as when a hunter shoots a 

protected bird causing its death. The 

key remains that the actor was engaged 

in an activity the object of which was to 

kill or render a bird subject to human 

control. 

By contrast, liability fails to attach to 

actions that are not directed toward 

rendering an animal subject to human 

control. Common examples of such 

actions include driving a car, allowing 

a pet cat to roam outdoors, or erecting 

a windowed building. All of these 

actions could foreseeably result in the 

deaths of protected birds, and all would 

be violations of the MBTA under the 

now-withdrawn M-Opinion if they did 

in fact result in deaths of protected 

birds, yet none of these actions have as 

their object rendering any animal 

subject to human control. Because no 

‘‘take’’ has occurred within the meaning 

of the MBTA, the strict-liability 

provisions of the Act would not be 

triggered. 

The prior M-Opinion posited that 

amendments to the MBTA imposing 

mental state requirements for specific 

offenses were only necessary if no 

mental state is otherwise required. 

However, the conclusion that the taking 

and killing of migratory birds is a strictliability crime does not answer the 

separate question of what acts are 

criminalized under the statute. The 

Fifth Circuit in CITGO stated, ‘‘we 

disagree that because misdemeanor 

MBTA violations are strict liability 

crimes, a ‘take’ includes acts (or 

omissions) that indirectly or 

accidentally kill migratory birds.’’ The 

court goes on to note that ‘‘[a] person 

whose car accidentally collided with the 

bird . . . has committed no act ‘taking’ 

the bird for which he could be held 

strictly liable. Nor do the owners of 

electrical lines ‘take’ migratory birds 

who run into them. These distinctions 

are inherent in the nature of the word 

‘taking’ and reveal the strict liability 

argument as a non-sequitur.’’ 801 F.3d 

at 493. Similarly, in Mahler v. U.S. 

Forest Serv., 927 F. Supp. 1559 (S.D. 

Ind. 1996), the court described the 

interplay between activities that are 

specifically directed at birds and the 

strict liability standard of the MBTA: 

[A comment in the legislative history] in 

favor of strict liability does not show any 

intention on the part of Congress to extend 

the scope of the MBTA beyond hunting, 

trapping, poaching, and trading in birds and 

bird parts to reach any and all human activity 

that might cause the death of a migratory 

bird. Those who engage in such activity and 

who accidentally kill a protected migratory 

bird or who violate the limits on their 

permits may be charged with misdemeanors 

without proof of intent to kill a protected 

bird or intent to violate the terms of a permit. 

That does not mean, however, that Congress 

intended for ‘‘strict liability’’ to apply to all 

forms of human activity, such as cutting a 

tree, mowing a hayfield, or flying a plane. 

The 1986 amendment and corresponding 

legislative history reveal only an intention to 

close a loophole that might prevent felony 

prosecutions for commercial trafficking in 

migratory birds and their parts. 

Thus, there appears to be no explicit basis 

in the language or the development of the 

MBTA for concluding that it was intended to 

be applied to any and all human activity that 

causes even unintentional deaths of 

migratory birds. 

927 F. Supp. at 1581 (referencing S. 

Rep. No. 99–445, at 16 (1986), reprinted 

in 1986 U.S.C.C.A.N. 6113, 6128). Thus, 

limiting the range of actions prohibited 

by the MBTA to those that are directed 

at migratory birds will focus 

prosecutions on activities like hunting 

and trapping and exclude more 

attenuated conduct, such as lawful 

commercial activity, that 

unintentionally and indirectly results in 

the death of migratory birds. 

The History of the MBTA 

The history of the MBTA and the 

debate surrounding its adoption 

illustrate that the Act was part of 

Congress’s efforts to regulate the 

hunting of migratory birds in direct 

response to the extreme over-hunting, 

largely for commercial purposes, that 

had occurred over the years. See United 

States v. Moon Lake Electric Ass’n, 45 

F. Supp. 2d 1070, 1080 (D. Colo. 1999) 

(‘‘the MBTA’s legislative history 

indicates that Congress intended to 

regulate recreational and commercial 

hunting’’); Mahler, 927 F. Supp. at 1574 

(‘‘The MBTA was designed to forestall 

hunting of migratory birds and the sale 

of their parts’’). Testimony concerning 

the MBTA given by the Solicitor’s Office 

for the Department of Agriculture 

underscores this focus: 

We people down here hunt [migratory 

birds]. The Canadians reasonably want some 

assurances from the United States that if they 

let those birds rear their young up there and 

come down here, we will preserve a 

sufficient supply to permit them to go back 

there. 

Protection of Migratory Birds: Hearing 

on H.R. 20080 Before the House Comm. 

on Foreign Affairs, 64th Cong. 22–23 

(1917) (statement of R.W. Williams, 

Solicitor’s Office, Department of 

Agriculture). Likewise, the Chief of the 

Department of Agriculture’s Bureau of 

Biological Survey noted that he ‘‘ha[s] 

always had the idea that [passenger 

pigeons] were destroyed by 

overhunting, being killed for food and 

for sport.’’ Protection of Migratory Birds: 

Hearing on H.R. 20080 Before the House 

Comm. on Foreign Affairs, 64th Cong. 

11 (1917) (statement of E. W. Nelson, 

Chief Bureau of Biological Survey, 

Department of Agriculture). 

Statements from individual 

Congressmen evince a similar focus on 

hunting. Senator Smith, ‘‘who 

introduced and championed the Act 

. . . in the Senate,’’ Leaders in Recent 

Successful Fight for the Migratory Bird 

Treaty Act, Bulletin—The American 

Game Protective Association, July 1918, 

at 5, explained: 

Nobody is trying to do anything here 

except to keep pothunters from killing game 

out of season, ruining the eggs of nesting 

birds, and ruining the country by it. Enough 

birds will keep every insect off of every tree 

in America, and if you will quit shooting 

them, they will do it. 

55 Cong. Rec. 4816 (statement of Sen. 

Smith) (1917). Likewise, during 

hearings of the House Foreign Affairs 

Committee, Congressman Miller, a 

‘‘vigorous fighter, who distinguished 

himself in the debate’’ over the MBTA, 

Leaders in Recent Successful Fight for 

the Migratory Bird Treaty Act, 

Bulletin—The American Game 

Protective Association, July 1918, at 5, 

put the MBTA squarely in the context 

of hunting: 

I want to assure you . . . that I am heartily 

in sympathy with this legislation. I want it 

to go through, because I am up there every 

fall, and I know what the trouble is. The 

trouble is in shooting the ducks in Louisiana, 

Arkansas, and Texas in the summer time, and 

also killing them when they are nesting up 

in Canada. 

Protection of Migratory Birds: Hearing 

on H.R. 20080 Before the House Comm. 

on Foreign Affairs, 64th Cong. 7 (1917) 

(statement of Rep. Miller). 

In seeking to take a broader view of 

congressional purpose, the Moon Lake 

court looked to other contemporary 

statements that cited the destruction of 

habitat, along with improvements in 

firearms, as a cause of the decline in 

migratory bird populations. The court 

even suggested that these statements, 

which ‘‘anticipated application of the 


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MBTA to children who act ‘through 

inadvertence’ or ‘through accident,’ ’’ 

supported a broader reading of the 

legislative history. Moon Lake, 45 F. 

Supp. 2d at 1080–81. Upon closer 

examination, these statements are 

instead consistent with a limited 

reading of the MBTA. 

One such contemporary statement 

cited by the court is a letter from 

Secretary of State Robert Lansing to the 

President attributing the decrease in 

migratory bird populations to two 

general issues: 

• Habitat destruction, described 

generally as ‘‘the extension of 

agriculture, and particularly the 

draining on a large scale of swamps and 

meadows;’’ and 

• Hunting, described in terms of 

‘‘improved firearms and a vast increase 

in the number of sportsmen.’’ 

Representative Baker referenced these 

statements during the House floor 

debate over the MBTA, implying that 

the MBTA was intended to address both 

issues. Moon Lake, 45 F. Supp. 2d at 

1080–81 (quoting H. Rep. No. 65–243, at 

2 (1918) (letter from Secretary of State 

Robert Lansing to the President)). 

However, Congress addressed hunting 

and habitat destruction in the context of 

the Migratory Bird Treaty through two 

separate acts: 

• First, in 1918, Congress adopted the 

MBTA to address the direct and 

intentional killing of migratory birds; 

• Second, in 1929, Congress adopted 

the Migratory Bird Conservation Act to 

‘‘more effectively’’ implement the 

Migratory Bird Treaty by protecting 

certain migratory bird habitats. 

The Migratory Bird Conservation Act 

provided the authority to purchase or 

rent land for the conservation of 

migratory birds, including for the 

establishment of inviolate ‘‘sanctuaries’’ 

wherein migratory bird habitats would 

be protected from persons ‘‘cut[ting], 

burn[ing], or destroy[ing] any timber, 

grass, or other natural growth.’’ 

Migratory Bird Conservation Act, Sec. 

10, 45 Stat. 1222, 1224 (1929) (codified 

as amended at 16 U.S.C. 715–715s). If 

the MBTA was originally understood to 

protect migratory bird habitats from 

incidental destruction, enactment of the 

Migratory Bird Conservation Act 11 

years later would have been largely 

superfluous. Instead, the MBTA and the 

Migratory Bird Conservation Act are 

complementary: ‘‘Together, the Treaty 

Act in regulating hunting and 

possession and the Conservation Act by 

establishing sanctuaries and preserving 

natural waterfowl habitat help 

implement our national commitment to 

the protection of migratory birds.’’ 

United States v. North Dakota, 650 F.2d 

911, 913–14 (8th Cir. 1981), aff’d on 

other grounds, 460 U.S. 300 (1983). 

Some courts have attempted to 

interpret a number of floor statements as 

supporting the notion that Congress 

intended the MBTA to regulate more 

than just hunting and poaching, but 

those statements reflect an intention to 

prohibit actions directed at birds— 

whether accomplished through hunting 

or some other means intended to kill 

birds directly. For example, some 

Members ‘‘anticipated application of the 

MBTA to children who act ‘through 

inadvertence’ or ‘through accident.’ ’’ 

What are you going to do in a case like this: 

A barefoot boy, as barefoot boys sometimes 

do, largely through inadvertence and without 

meaning anything wrong, happens to throw 

a stone at and strikes and injures a robin’s 

nest and breaks one of the eggs, whereupon 

he is hauled before a court for violation of 

a solemn treaty entered into between the 

United States of America and the Provinces 

of Canada. 

Moon Lake, 45 F. Supp. 2d at 1081 

(quoting 56 Cong. Rec. 7455 (1918) 

(statement of Rep. Mondell)). 

‘‘[I]nadvertence’’ in this statement refers 

to the boy’s mens rea. As the rest of the 

sentence clarifies, the hypothetical boy 

acted ‘‘without meaning anything 

wrong,’’ not that he acted 

unintentionally or accidentally in 

damaging the robin’s nest. This is 

reinforced by the rest of the 

hypothetical, which posits that the boy 

threw ‘‘a stone at and strikes and injures 

a robin’s nest.’’ The underlying act is 

directed specifically at the robin’s nest. 

In other statements, various members of 

Congress expressed concern about 

‘‘sportsmen,’’ people ‘‘killing’’ birds, 

‘‘shooting’’ of game birds or 

‘‘destruction’’ of insectivorous birds, 

and whether the purpose of the MBTA 

was to favor a steady supply of ‘‘game 

animals for the upper classes.’’ Moon 

Lake, 45 F. Supp. 2d at 1080–81. One 

Member of Congress even offered a 

statement that explains why the statute 

is not redundant in its use of the various 

terms to explain what activities are 

regulated: ‘‘[T]hey cannot hunt ducks in 

Indiana in the fall, because they cannot 

kill them. I have never been able to see 

why you cannot hunt, whether you kill 

or not. There is no embargo on hunting, 

at least down in South Carolina. . . .’ ’’ 

Id. at 1081 (quoting 56 Cong. Rec. 7446 

(1918) (statement of Rep. Stevenson)). 

That Congress was animated regarding 

potential restrictions on hunting and its 

impact on individual hunters is evident 

from even the statements relied upon as 

support for the conclusion that the 

statute reaches incidental take. 

Finally, in 1918, Federal regulation of 

the hunting of wild birds was a highly 

controversial and legally fraught subject. 

For example, on the floor of the Senate, 

Senator Reed proclaimed: 

I am opposed not only now in reference to 

this bill [the MBTA], but I am opposed as a 

general proposition to conferring power of 

that kind upon an agent of the 

Government. . . . 

. . . Section 3 proposes to turn these 

powers over to the Secretary of 

Agriculture. . . to make it a crime for a man 

to shoot game on his own farm or to make 

it perfectly legal to shoot it on his own 

farm. . . . 

When a Secretary of Agriculture does a 

thing of that kind I have no hesitancy in 

saying that he is doing a thing that is utterly 

indefensible, and that the Secretary of 

Agriculture who does it ought to be driven 

from office. . . . 

55 Cong. Rec. 4813 (1917) (statement of 

Sen. Reed). 

Federal regulation of hunting was also 

legally tenuous at that time. Whether 

the Federal Government had any 

authority to regulate the killing or taking 

of any wild animal was an open 

question in 1918. Just over 20 years 

earlier, the Supreme Court in Geer had 

ruled that the States exercised the 

power of ownership over wild game in 

trust, implicitly precluding Federal 

regulation. See Geer v. Connecticut, 161 

U.S. 519 (1896). When Congress did 

attempt to assert a degree of Federal 

jurisdiction over wild game with the 

1913 Weeks-McLean Law, it was met 

with mixed results in the courts, leaving 

the question pending before the 

Supreme Court at the time of the 

MBTA’s enactment. See, e.g., United 

States v. Shaver, 214 F. 154, 160 (E.D. 

Ark. 1914); United States v. McCullagh, 

221 F. 288 (D. Kan. 1915). It was not 

until Missouri v. Holland in 1920 that 

the Court, relying on authority derived 

from the Migratory Bird Treaty (Canada 

Convention) under the Treaty Clause of 

the U.S. Constitution, definitively 

acknowledged the Federal 

Government’s ability to regulate the 

taking of wild birds. 252 U.S. 416, 432– 

33 (1920). 

Given the legal uncertainty and 

political controversy surrounding 

Federal regulation of intentional 

hunting in 1918, it is highly unlikely 

that Congress intended to confer 

authority upon the executive branch to 

prohibit all manner of activity that had 

an incidental impact on migratory birds. 

The provisions of the 1916 Canada 

Convention authorize only certain 

circumscribed activities specifically 

directed at migratory birds. Articles II 

through IV of the Convention create 

closed periods during which hunting of 

migratory species covered by the 

Convention may be authorized only for 

limited purposes, such as scientific use 


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or propagation. Article VII allows taking 

to resolve conflicts under extraordinary 

conditions when birds become seriously 

injurious to agricultural or other 

interests, subject to permits issued by 

the parties under regulations prescribed 

by them respectively. Additionally, 

Article V prohibits the taking of eggs or 

nests of certain protected species, 

except for scientific and propagating 

purposes under regulations issued by 

the parties, and Article VI prohibits 

transport, import, and export of 

protected species except for scientific or 

propagating purposes. See Canada 

Convention, 39 Stat. 1702. 

Subsequent legislative history does 

not undermine a limited interpretation 

of the MBTA, as enacted in 1918. The 

‘‘fixed-meaning canon of statutory 

construction directs that ‘‘[w]ords must 

be given the meaning they had when the 

text was adopted.’’ Scalia & Garner at 

78. The meaning of written instruments 

‘‘does not alter. That which it meant 

when adopted, it means now.’’ South 

Carolina v. United States, 199 U.S. 437, 

448 (1905). 

The operative language in section 2 of 

the MBTA has changed little since its 

adoption in 1918. The current iteration 

of the relevant language—making it 

unlawful for persons ‘‘at any time, by 

any means or in any manner, to pursue, 

hunt, take, capture, kill, attempt to take, 

capture, or kill, possess’’ specific 

migratory birds—was adopted in 1935 

as part of the Mexico Treaty Act and has 

remained unchanged since then. 

Compare Mexico Treaty Act, 49 Stat. 

1555, Sec. 3 with 16 U.S.C. 703(a). As 

with the 1916 Canada Convention, the 

Mexico Convention focused primarily 

on hunting and establishing protections 

for birds in the context of take and 

possession for commercial use. See 

Convention between the United States 

of America and Mexico for the 

Protection of Migratory Birds and Game 

Mammals, 50 Stat. 1311 (Feb. 7, 1936) 

(Mexico Convention). Subsequent 

Protocols amending both these 

Conventions also did not explicitly 

address incidental take or otherwise 

broaden their scope to prohibit anything 

other than purposeful take of migratory 

birds. See Protocol between the 

Government of the United States and 

the Government of Canada Amending 

the 1916 Convention between the 

United Kingdom and the United States 

of America for the Protection of 

Migratory Birds, Sen. Treaty Doc. 104– 

28 (Dec. 14, 1995) (outlining 

conservation principles to ensure longterm conservation of migratory birds, 

amending closed seasons, and 

authorizing indigenous groups to 

harvest migratory birds and eggs 

throughout the year for subsistence 

purposes); Protocol between the 

Government of the United States of 

America and the Government of the 

United Mexican States Amending the 

Convention for Protection of Migratory 

Birds and Game Mammals, Sen. Treaty 

Doc. 105–26 (May 5, 1997) (authorizing 

indigenous groups to harvest migratory 

birds and eggs throughout the year for 

subsistence purposes). 

It was not until more than 50 years 

after the initial adoption of the MBTA 

and 25 years after the Mexico Treaty Act 

that Federal prosecutors began applying 

the MBTA to incidental actions. See 

Lilley & Firestone at 1181 (‘‘In the early 

1970s, United States v. Union Texas 

Petroleum [No, 73–CR–127 (D. Colo. Jul. 

11, 1973)] marked the first case dealing 

with the issue of incidental take.’’). This 

newfound Federal authority was not 

accompanied by any corresponding 

legislative change. The only 

contemporaneous changes to section 2 

of the MBTA were technical updates 

recognizing the adoption of a treaty with 

Japan. See Act of June 1, 1974, Public 

Law 93–300, 88 Stat. 190. Implementing 

legislation for the treaty with the Soviet 

Union also did not amend section 2. See 

Fish and Wildlife Improvement Act of 

1978, Public Law 95–616, sec. 3(h), 92 

Stat. 3110. Similar to the earlier 

Conventions, the provisions of the Japan 

and Russia Conventions authorized 

purposeful take for specific activities 

such as hunting, scientific, educational, 

and propagation purposes, and 

protection against injury to persons and 

property. However, they also outlined 

mechanisms to protect habitat and 

prevent damage from pollution and 

other environmental degradation 

(domestically implemented by the 

Migratory Bird Conservation Act and 

other applicable Federal laws). See 

Convention between the Government of 

the United States and the Government 

of Japan for the Protection of Migratory 

birds and Birds in Danger of Extinction, 

and their Environment, 25 U.S.T. 3329 

(Mar. 4, 1972) (Japan Convention); 

Convention between the United States 

of America and the Union of Soviet 

Socialist Republics Concerning the 

Conservation of Migratory Birds and 

their Environment, 29 U.S.T. 4647 (Nov. 

19, 1976) (Russia Convention). 

No changes were made to the section 

of the MBTA at issue here following the 

later conventions except that the Act 

was modified to include references to 

these later agreements. Certainly, other 

Federal laws may require consideration 

of potential impacts to birds and their 

habitat in a way that furthers the goals 

of the Conventions’ broad statements. 

See, e.g., Mahler, 927 F. Supp. at 1581 

(‘‘Many other statutes enacted in the 

intervening years also counsel against 

reading the MBTA to prohibit any and 

all migratory bird deaths resulting from 

logging activities in national forests. As 

is apparent from the record in this case, 

the Forest Service must comply with a 

myriad of statutory and regulatory 

requirements to authorize even the very 

modest type of salvage logging operation 

of a few acres of dead and dying trees 

at issue in this case. Those laws require 

the Forest Service to manage national 

forests so as to balance many competing 

goals, including timber production, 

biodiversity, protection of endangered 

and threatened species, human 

recreation, aesthetic concerns, and 

many others.’’). Given the 

overwhelming evidence that the 

primary purpose of section 2, as 

amended by the Mexico Treaty Act, was 

to control over-hunting, the references 

to the later agreements do not bear the 

weight of the conclusion reached by the 

prior Opinion (M–37041). 

Thus, the only legislative enactment 

concerning incidental activity under the 

MBTA is the 2003 appropriations bill 

that explicitly exempted militaryreadiness activities from liability under 

the MBTA for incidental takings. See 

Bob Stump National Defense 

Authorization Act for Fiscal Year 2003, 

Public Law 107–314, Div. A, Title III, 

Sec. 315, 116 Stat. 2509 (2002), 

reprinted in 16 U.S.C.A. 703, Historical 

and Statutory Notes. There is nothing in 

this legislation that authorizes the 

government to pursue incidental takings 

charges in other contexts. Rather, some 

have ‘‘argue[d] that Congress expanded 

the definition of ‘take’ by negative 

implication’’ since ‘‘[t]he exemption did 

not extend to the ‘operation of industrial 

facilities,’ even though the government 

had previously prosecuted activities 

that indirectly affect birds.’’ CITGO, 801 

F.3d at 490–91. 

This argument is contrary to the 

Supreme Court’s admonition that 

‘‘Congress . . . does not alter the 

fundamental details of a regulatory 

scheme in vague terms or ancillary 

provisions—it does not, one might say, 

hide elephants in mouseholes.’’ 

Whitman v. Am. Trucking Ass’ns, 531 

U.S. 457, 468 (2001). As the Fifth 

Circuit explained, ‘‘[a] single carve-out 

from the law cannot mean that the 

entire coverage of the MBTA was 

implicitly and hugely expanded.’’ 

CITGO, 801 F.3d at 491. Rather, it 

appears Congress acted in a limited 

fashion to preempt a specific and 

immediate impediment to militaryreadiness activities. ‘‘Whether Congress 

deliberately avoided more broadly 

changing the MBTA or simply chose to 


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address a discrete problem, the most 

that can be said is that Congress did no 

more than the plain text of the 

amendment means.’’ Id. It did not hide 

the elephant of incidental takings in the 

mouse hole of a narrow appropriations 

provision. 

Constitutional Issues 

The Supreme Court has recognized 

that ‘‘[a] fundamental principle in our 

legal system is that laws which regulate 

persons or entities must give fair notice 

of conduct that is forbidden or 

required.’’ FCC v. Fox Television 

Stations, Inc., 567 U.S. 239, 253 (2012). 

‘‘No one may be required at peril of life, 

liberty or property to speculate as to the 

meaning of penal statutes.’’ Lanzetta v. 

New Jersey, 306 U.S. 451, 453 (1939). 

Accordingly, a ‘‘statute which either 

forbids or requires the doing of an act 

in terms so vague that men of common 

intelligence must necessarily guess at its 

meaning and differ as to its application, 

violates the first essential of due process 

of law.’’ Fox Television, 567 U.S. at 253 

(quoting Connally v. General Constr. 

Co., 269 U.S. 385, 391 (1926)). Thus, 

‘‘[a] conviction or punishment fails to 

comply with due process if the statute 

or regulation under which it is obtained 

‘fails to provide a person of ordinary 

intelligence fair notice of what is 

prohibited, or is so standardless that it 

authorizes or encourages seriously 

discriminatory enforcement.’ ’’ Id. 

(quoting United States v. Williams, 553 

U.S. 285, 304 (2008)). 

Assuming, arguendo, that the MBTA 

is ambiguous, the interpretation that 

limits its application to conduct 

specifically directed at birds is 

necessary to avoid potential 

constitutional concerns. As the Court 

has advised, ‘‘where an otherwise 

acceptable construction of a statute 

would raise serious constitutional 

problems, the Court will construe the 

statute to avoid such problems unless 

such construction is plainly contrary to 

the intent of Congress.’’ Edward J. 

DeBartolo Corp. v. Fla. Gulf Coast Bldg. 

& Constr. Trades Council, 485 U.S. 568, 

575 (1988); cf. Natural Res. Defense 

Council v. U.S. Dep’t of the Interior, 

2020 WL 4605235 (S.D.N.Y. Aug. 11, 

2020) (dismissing constitutional 

concerns, but on the basis that the 

relevant language is unambiguous). 

Here, an attempt to impose liability for 

acts that are not directed at migratory 

birds raises just such constitutional 

concerns. 

The ‘‘scope of liability’’ under an 

interpretation of the MBTA that extends 

criminal liability to all persons who kill 

or take migratory birds incidental to 

another activity is ‘‘hard to overstate,’’ 

CITGO, 801 F.3d at 493, and ‘‘offers 

unlimited potential for criminal 

prosecutions.’’ Brigham Oil, 840 F. 

Supp. 2d at 1213. ‘‘The list of birds now 

protected as ‘migratory birds’ under the 

MBTA is a long one, including many of 

the most numerous and least 

endangered species one can imagine.’’ 

Mahler, 927 F. Supp. at 1576. Currently, 

over 1,000 species of birds—including 

‘‘all species native to the United States 

or its territories’’—are protected by the 

MBTA. 78 FR 65,844, 65,845 (Nov. 1, 

2013); see also 50 CFR 10.13 (list of 

protected migratory birds); Migratory 

Bird Permits; Programmatic 

Environmental Impact Statement, 80 FR 

30032, 30033 (May 26, 2015) (‘‘Of the 

1,027 currently protected species, 

approximately 8% are either listed (in 

whole or in part) as threatened or 

endangered under the Endangered 

Species Act (ESA) (16 U.S.C. 1531 et 

seq.) and 25% are designated (in whole 

or in part) as Birds of Conservation 

Concern (BCC).’’). Service analysis 

indicates that the top threats to birds 

are: 

• Cats, which kill an estimated 2.4 

billion birds per year; 

• Collisions with building glass, 

which kill an estimated 599 million 

birds per year; 

• Collisions with vehicles, which kill 

an estimated 214.5 million birds per 

year; 

• Chemical poisoning (e.g., pesticides 

and other toxins), which kill an 

estimated 72 million birds per year; 

• Collisions with electrical lines, 

which kill an estimated 25.5 million 

birds per year; 

• Collisions with communications 

towers, which kill an estimated 6.6 

million birds per year; 

• Electrocutions, which kill an 

estimated 5.6 million birds per year; 

• Oil pits, which kill an estimated 

750 thousand birds per year; and 

• Collisions with wind turbines, 

which kill an estimated 234 thousand 

birds per year. 

U.S. Fish and Wildlife Service, 

Threats to Birds: Migratory Birds 

Mortality—Questions and Answers, 

available at https://www.fws.gov/birds/ 

bird-enthusiasts/threats-to-birds.php 

(last updated September 14, 2018). 

Interpreting the MBTA to apply strict 

criminal liability to any instance where 

a migratory bird is killed as a result of 

these threats would certainly be a clear 

and understandable rule. See United 

States v. Apollo Energies, Inc., 611 F.3d 

679, 689 (10th Cir. 2010) (concluding 

that under an incidental take 

interpretation, ‘‘[t]he actions 

criminalized by the MBTA may be 

legion, but they are not vague’’). 

However, it would also turn many 

Americans into potential criminals. See 

Mahler, 927 F. Supp. 1577–78 (listing a 

litany of scenarios where normal 

everyday actions could potentially and 

incidentally lead to the death of a single 

bird or breaking of an egg in a nest)). 

Such an interpretation could lead to 

absurd results, which are to be avoided. 

See Griffin v. Oceanic Contractors, 458 

U.S. 564, 575 (1982) (‘‘interpretations of 

a statute which would produce absurd 

results are to be avoided if alternative 

interpretations consistent with the 

legislative purpose are available’’); see 

also K Mart Corp. v. Cartier, 486 U.S. 

281, 324 n.2 (1988) (Scalia, J. concurring 

in part and dissenting in part) (‘‘it is a 

venerable principle that a law will not 

be interpreted to produce absurd 

results.’’). 

These potentially absurd results are 

not ameliorated by limiting the 

definition of ‘‘incidental take’’ to ‘‘direct 

and foreseeable’’ harm as some courts 

have suggested. See U.S. Fish and 

Wildlife Service Manual, part 720, ch. 3, 

Incidental Take Prohibited Under the 

Migratory Bird Treaty Act (Jan. 11, 

2017). The court in Moon Lake 

identified an ‘‘important and inherent 

limiting feature of the MBTA’s 

misdemeanor provision: To obtain a 

guilty verdict ..., the government 

must prove proximate causation.’’ Moon 

Lake, 45 F. Supp. 2d at 1085. Quoting 

Black’s Law Dictionary, the court 

defines proximate cause as ‘‘that which, 

in a natural and continuous sequence, 

unbroken by any efficient intervening 

cause, produces the injury and without 

which the accident could not have 

happened, if the injury be one which 

might be reasonably anticipated or 

foreseen as a natural consequence of the 

wrongful act.’’ Id. (quoting Black’s Law 

Dictionary 1225 (6th ed. 1990)) 

(emphasis in original). The Tenth 

Circuit in Apollo Energies took a similar 

approach, holding ‘‘the MBTA requires 

a defendant to proximately cause the 

statute’s violation for the statute to pass 

constitutional muster’’ and quoting from 

Black’s Law Dictionary to define 

‘‘proximate cause.’’ Apollo Energies, 611 

F.3d at 690. 

Contrary to the suggestion of the 

courts in Moon Lake and Apollo 

Energies that principles of proximate 

causation can be read into the statute to 

define and limit the scope of incidental 

take, the death of birds as a result of 

activities such as driving, flying, or 

maintaining buildings with large 

windows is a ‘‘direct,’’ ‘‘reasonably 

anticipated,’’ and ‘‘probable’’ 

consequence of those actions. As 

discussed above, collisions with 

buildings and cars are the second and 


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third most common human-caused 

threat to birds, killing an estimated 599 

million and 214.5 million birds per 

year, respectively. It is eminently 

foreseeable and probable that cars and 

windows will kill birds. Thus, limiting 

incidental take to direct and foreseeable 

results does little to prevent absurd 

outcomes. 

To avoid these absurd results, the 

government has historically relied on 

prosecutorial discretion. See Ogden at 

29 (‘‘Historically, the limiting 

mechanism on the prosecution of 

incidental taking under the MBTA by 

non-federal persons has been the 

exercise of prosecutorial discretion by 

the FWS.’’); see generally FMC, 572 F.2d 

at 905 (situations ‘‘such as deaths 

caused by automobiles, airplanes, plate 

glass modern office buildings or picture 

windows in residential dwellings . . . 

properly can be left to the sound 

discretion of prosecutors and the 

courts’’). Yet, the Supreme Court has 

declared ‘‘[i]t will not do to say that a 

prosecutor’s sense of fairness and the 

Constitution would prevent a successful 

. . . prosecution for some of the 

activities seemingly embraced within 

the sweeping statutory definitions.’’ 

Baggett v. Bullitt, 377 U.S. 360, 373 

(1964); see also Mahler, 927 F. Supp. 

1582 (‘‘Such trust in prosecutorial 

discretion is not really an answer to the 

issue of statutory construction’’ in 

interpreting the MBTA.). For broad 

statutes that may be applied to 

seemingly minor or absurd situations, 

‘‘[i]t is no answer to say that the statute 

would not be applied in such a case.’’ 

Keyishian v. Bd. of Regents, 385 U.S. 

589, 599 (1967). 

Recognizing the challenge posed by 

relying upon prosecutorial discretion, 

the FMC court sought to avoid absurd 

results by limiting its holding to 

‘‘extrahazardous activities.’’ FMC, 572 

F.2d at 907. The term ‘‘extrahazardous 

activities’’ is not found anywhere in the 

statute and is not defined by either the 

court or the Service. See Mahler, 927 F. 

Supp. at 1583 n.9 (noting that the FMC 

court’s ‘‘limiting principle . . . of strict 

liability for hazardous commercial 

activity . . . ha[s] no apparent basis in 

the statute itself or in the prior history 

of the MBTA’s application since its 

enactment’’); cf. United States v. 

Rollins, 706 F. Supp. 742, 744–45 (D. 

Idaho 1989) (‘‘The statute itself does not 

state that poisoning of migratory birds 

by pesticide constitutes a criminal 

violation. Such specificity would not 

have been difficult to draft into the 

statute’’). Thus, it is unclear what 

activities are ‘‘extrahazardous.’’ In FMC, 

the concept was applied to the 

manufacture of ‘‘toxic chemicals,’’ i.e., 

pesticides. But the court was silent as to 

how far this rule extends, even in the 

relatively narrow context of pesticides. 

This type of uncertainty is 

problematic under the Supreme Court’s 

due process jurisprudence. See Rollins, 

706 F. Supp. at 745 (dismissing charges 

against a farmer who applied pesticides 

to his fields that killed a flock of geese, 

reasoning ‘‘[f]armers have a right to 

know what conduct of theirs is criminal, 

especially where that conduct consists 

of common farming practices carried on 

for many years in the community. While 

statutes do not have to be drafted with 

‘mathematical certainty,’ they must be 

drafted with a ‘reasonable degree of 

certainty.’ The MBTA fails this test. . . . 

Under the facts of this case, the MBTA 

does not give ‘fair notice as to what 

constitutes illegal conduct’ so that [the 

farmer] could ‘conform his conduct to 

the requirements of the law.’ ’’ (internal 

citations omitted)). 

While the MBTA does contemplate 

the issuance of permits authorizing the 

taking of wildlife, it requires such 

permits to be issued by ‘‘regulation.’’ 

See 16 U.S.C. 703(a) (‘‘Unless and 

except as permitted by regulations made 

as hereinafter provided . . . .’’ 

(emphasis added)). No regulations have 

been issued to create a permit scheme 

to authorize incidental take, so most 

potential violators have no formal 

mechanism to ensure that their actions 

comply with the law. There are 

voluntary Service guidelines issued for 

different industries that recommend 

best practices to avoid incidental take of 

protected birds; however, these 

guidelines provide only limited 

protection to potential violators and do 

not constitute a regulatory authorization 

or result in the issuance of permits. 

In the absence of a permit issued 

pursuant to Departmental regulation, it 

is not clear that the Service has any 

authority under the MBTA to require 

minimizing or mitigating actions that 

balance the environmental harm from 

the taking of migratory birds with other 

societal goals, such as the production of 

wind or solar energy. Accordingly, the 

guidelines do not provide enforceable 

legal protections for people and 

businesses who abide by their terms. To 

wit, the guidelines themselves state, ‘‘it 

is not possible to absolve individuals or 

companies’’ from liability under the 

MBTA. Rather, the guidelines are 

explicit that the Service may only 

consider full compliance in exercising 

its discretion whether to refer an 

individual or company to the 

Department of Justice for prosecution. 

See, e.g., U.S. Fish and Wildlife Service, 

Land-Based Wind Energy Guidelines 6 

(Mar. 23, 2012). 

Under this approach, it is literally 

impossible for individuals and 

companies to know exactly what is 

required of them under the law when 

otherwise-lawful activities necessarily 

result in accidental bird deaths. Even if 

they comply with everything requested 

of them by the Service, they may still be 

prosecuted, and still found guilty of 

criminal conduct. See generally United 

States v. FMC Corp., 572 F.2d 902, 904 

(2d Cir. 1978) (the court instructed the 

jury not to consider the company’s 

remediation efforts as a defense: 

‘‘Therefore, under the law, good will 

and good intention and measures taken 

to prevent the killing of the birds are not 

a defense.’’). In sum, due process 

‘‘requires legislatures to set reasonably 

clear guidelines for law enforcement 

officials and triers of fact in order to 

prevent ‘arbitrary and discriminatory 

enforcement.’ ’’ Smith v. Goguen, 415 

U.S. 566, 572–73 (1974). 

Reading the MBTA to capture 

incidental takings could potentially 

transform average Americans into 

criminals. The text, history, and 

purpose of the MBTA demonstrate 

instead that it is a law limited in 

relevant part to actions, such as hunting 

and poaching, that reduce migratory 

birds and their nests and eggs to human 

control by killing or capturing. Even 

assuming that the text could be subject 

to multiple interpretations, courts and 

agencies are to avoid interpreting 

ambiguous laws in ways that raise 

constitutional doubts if alternative 

interpretations are available. 

Interpreting the MBTA to criminalize 

incidental takings raises potential due 

process concerns. Based upon the text, 

history, and purpose of the MBTA, and 

consistent with decisions in the Courts 

of Appeals for the Fifth, Eighth, and 

Ninth circuits, there is an alternative 

interpretation that avoids these 

concerns. Therefore, the Service 

concludes that the scope of the MBTA 

does not include incidental take. 

Policy Analysis of Incidental Take 

Under the MBTA 

As detailed above, the Service has 

determined that the MBTA’s 

prohibitions on pursuing, hunting, 

taking, capturing, killing, or attempting 

to do the same apply only to actions 

directed at migratory birds, their nests, 

or their eggs is compelled as a matter of 

law. In addition, even if such a 

conclusion is not legally compelled, the 

Service proposes to adopt it as a matter 

of policy. 

The Service’s approach to incidental 

take prior to 2017 was implemented 

without public input and has resulted in 

regulatory uncertainty and 


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inconsistency. Prosecutions for 

incidental take occurred in the 1970s 

without any accompanying change in 

either the underlying statute or Service 

regulations. Accordingly, an 

interpretation with broad implications 

for the American public was implicitly 

adopted without public debate. 

Subsequently, the Service has sought to 

limit the potential reach of MBTA 

liability by pursuing enforcement 

proceedings only against persons who 

fail to take what the Service considers 

‘‘reasonable’’ precautions against 

foreseeable risks. 

Based upon the Service’s analysis of 

manmade threats to migratory birds and 

the Service’s own enforcement history, 

common activities such as owning and 

operating a power line, wind farm, or 

drilling operation pose an inherent risk 

of incidental take. An expansive reading 

of the MBTA that includes an 

incidental-take prohibition would 

subject those who engage in these 

common, and necessary, activities to 

criminal liability. 

This approach effectively leaves 

otherwise lawful and often necessary 

businesses to take their chances and 

hope they avoid prosecution, not 

because their conduct is or even can be 

in strict compliance with the law, but 

because the government has chosen to 

forgo prosecution. Otherwise-lawful 

economic activity should not be 

functionally dependent upon the ad hoc 

exercise of enforcement discretion. 

Further, as a practical matter, 

inconsistency and uncertainty are built 

into the MBTA enforcement regime by 

virtue of a split between Federal Circuit 

Courts of Appeals. Courts have adopted 

different views on whether section 2 of 

the MBTA prohibits incidental take, 

and, if so, to what extent. Courts of 

Appeals in the Second and Tenth 

Circuits, as well as district courts in at 

least the Ninth and District of Columbia 

Circuits, have held that the MBTA 

criminalizes some instances of 

incidental take, generally with some 

form of limiting construction. See 

United States v. FMC Corporation, 572 

F.2d 902 (2d Cir. 1978); United States v. 

Apollo Energies, Inc., 611 F.3d 679 

(10th Cir. 2010); United States v. Corbin 

Farm Serv., 444 F. Supp. 510 (E.D. Cal. 

1978); Ctr. for Biological Diversity v. 

Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002), 

vacated on other grounds sub nom. Ctr. 

for Biological Diversity v. England, 2003 

App. LEXIS 1110 (D.C. Cir. 2003). By 

contrast, Courts of Appeals in the Fifth, 

Eighth, and Ninth Circuits, as well as 

district courts in the Third and Seventh 

Circuits, have indicated that it does not. 

See United States v. CITGO Petroleum 

Corp., 801 F.3d 477 (5th Cir. 2015); 

Newton County Wildlife Ass’n v. U.S. 

Forest Serv., 113 F.3d 110 (8th Cir. 

1997); Seattle Audubon Soc’y v. Evans, 

952 F.2d 297 (9th Cir. 1991); Mahler v. 

U.S. Forest Serv., 927 F. Supp. 1559 

(S.D. Ind. 1996); Curry v. U.S. Forest 

Serv., 988 F. Supp. 541, 549 (W.D. Pa. 

1997). 

As a result of these cases, the Federal 

Government is clearly prohibited from 

enforcing an incidental take prohibition 

in the Fifth Circuit. In the Eighth 

Circuit, the Federal Government has 

previously sought to distinguish court of 

appeals rulings limiting the scope of the 

MBTA to the habitat-destruction 

context. See generally Apollo Energies, 

611 F.3d at 686 (distinguishing the 

Eighth Circuit decision in Newton 

County on the grounds that it involved 

logging that modified a bird’s habitat in 

some way). However, that argument was 

rejected by a subsequent district court. 

See United States v. Brigham Oil & Gas, 

L.P., 840 F. Supp. 2d 1202 (D.N.D. 

2012). Likewise, the Federal 

Government has sought to distinguish 

holdings in the habitat-destruction 

context in the Ninth Circuit. See United 

States v. Moon Lake Electrical Ass’n, 45 

F. Supp. 2d 1070, 1075–76 (D. Colo. 

1999) (suggesting that the Ninth 

Circuit’s ruling in Seattle Audubon may 

be limited to habitat modification or 

destruction). In the Second and Tenth 

Circuits, the Federal Government can 

apply the MBTA to incidental take, 

albeit with differing judicial limitations. 

These cases demonstrate the potential 

for a convoluted patchwork of legal 

standards; all purporting to apply the 

same underlying law. The MBTA is a 

national law. Many of the companies 

and projects that face potential liability 

under the MBTA operate across 

boundary lines for judicial circuits. Yet 

what is legal in the Fifth and Eighth 

Circuits may become illegal as soon as 

an operator crosses State lines into the 

bordering Tenth Circuit or become a 

matter of uncertainty in the Ninth 

Circuit. The Service concludes that it is 

in its own interest, as well as that of the 

public, to have and apply a national 

standard that sets a clear, articulable 

rule for when an operator crosses the 

line into criminality. The most effective 

way to reduce uncertainty and have a 

truly national standard is for the Service 

to codify and apply a uniform 

interpretation of the MBTA that its 

prohibitions do not apply to incidental 

take, based upon the Fifth Circuit’s 

ruling in CITGO Petroleum Corporation. 

Therefore, as a matter of both law and 

policy, the Service adopts a regulation 

limiting the scope of the MBTA to 

actions that are directed at migratory 

birds, their nests, or their eggs, and 

clarifying that injury to or mortality of 

migratory birds that results from, but is 

not the purpose of, an action (i.e., 

incidental taking or killing) is not 

prohibited by the Migratory Bird Treaty 

Act. 

Public Comments 

On February 3, 2020, the Service 

published in the Federal Register (85 

FR 5915) a proposed rule to define the 

scope of the MBTA as it applies to 

conduct resulting in the injury or death 

of migratory birds protected by the Act. 

We solicited public comments on the 

proposed rule for 45 days, ending on 

March 19, 2020. We received 8,398 

comments. Many comments included 

additional attachments (e.g., scanned 

letters, photographs, and supporting 

documents). These comments 

represented the views of multiple State 

and local government agencies, private 

industries, non-governmental 

organizations (NGOs), and private 

citizens. In addition to the individual 

comments received, 10 organizations 

submitted attachments representing 

individuals’ comments, form letters, and 

signatories to petition-like letters 

representing almost 180,000 signers. 

The following text presents the 

substantive comments we received and 

responses to them. 

Comment: Multiple commenters 

noted that Congress has amended the 

MBTA in multiple instances (i.e., 

narrowing scope of strict liability, 

adding knowledge requirement to felony 

violation, narrowly exempting certain 

activities from incidental take, etc.). The 

commenters noted that Congress could 

have clarified any objection to the 

enforcement of incidental take but did 

not. The commenters suggested that 

these later congressional interpretations 

should be given great weight and that 

failure to include incidental take within 

the scope of the statute would virtually 

nullify these amendments. Congress 

specifically demonstrated its familiarity 

with the development of take liability in 

1998 when it tackled the ‘‘unfairness’’ of 

strict liability in baiting cases. Rather 

than strict liability, the MBTA would 

apply a negligence standard to hunters 

who used fields with loose grain. In 

making this change, the Senate Report 

noted that the amendment was ‘‘not 

intended in any way to reflect upon the 

general application of strict liability 

under the MBTA.’’ 

Response: The operative language 

originally enacted in section 2 of the 

MBTA has not substantively changed 

since 1936. The 1936 amendment 

modified the language to clarify its 

meaning and application, but there is no 

indication those changes were intended 


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to broaden the scope of the statute 

beyond actions directed at migratory 

birds. The subsequent amendments 

have instead fine-tuned the mens rea 

required for violations directed at 

migratory birds, including commercial 

use, hunting, and baiting. Interpreting 

the statute to reach only actions directed 

at migratory birds would not nullify 

these amendments. The 1960 

amendment was enacted prior to the 

initial prosecutions for take by 

industrial activities at a time when 

Congress had no reason to believe the 

MBTA could potentially reach beyond 

hunting and commercial use of birds. 

The 1988 amendment was, as noted, 

simply a reaction to a court decision 

that added a negligence standard for 

baiting violations. As noted in the MOpinion, nothing in the referenced 

amendments disturbs Congress’s 

original intent that section 2 apply only 

to actions directed at migratory birds. 

Moreover, the views of one Congress 

regarding the construction of a statute 

adopted many years before by another 

Congress are typically given little to no 

weight, particularly where, as here, the 

amendments did not disturb the 

operative language governing the scope 

of that statute. 

Comment: Several commenters 

concluded that the Department of 

Defense Authorization Act for Fiscal 

Year 2003 demonstrates that Congress 

intended the MBTA to prohibit 

incidental take of migratory birds 

because it directed FWS and the 

Department of Defense to develop a 

regulation authorizing incidental take of 

migratory birds during military 

readiness activities. Congress enacted 

the relevant provision in the wake of a 

case in which the court enjoined 

specific U.S. Navy live-fire training 

exercises that incidentally killed 

migratory birds. The commenters 

reasoned that Congress could have 

directed the Service to issue MBTA 

regulations that achieved the same 

result as this rulemaking action by 

limiting the MBTA to direct actions 

against migratory birds. Alternatively, 

Congress could have amended the 

MBTA itself to clarify that it did not 

apply to incidental takes and kills. 

However, Congress did not do either of 

those things; instead, it temporarily 

exempted incidental taking caused by 

military-readiness activities from the 

MBTA prohibition and directed the 

Service to issue MBTA regulations to 

create a permanent authorization for 

military-readiness activities. Thus, 

Congress spoke clearly to the matter of 

whether the MBTA scope includes 

incidental takes and kills. 

Response: As explained by the Fifth 

Circuit in the CITGO case, the 2003 

Authorization Act does not require the 

conclusion that Congress interpreted the 

MBTA to apply broadly to incidental 

take. Congress was simply acting to 

preempt application of a judicial 

decision that specifically and 

immediately restricted militaryreadiness activities. Imputing 

Congressional intent beyond the plain 

text of a narrow appropriation provision 

is not warranted. We do not interpret 

that action as Congress clearly speaking 

to the broad issue of the overall scope 

of the statute as it applies to incidental 

take. Congress may simply have chosen 

to address a discrete problem without 

any intent to interpret more broadly the 

MBTA outside of that particular context. 

In any event, the views of the 2003 

Congress in a rider to an appropriation 

act that did not even explicitly amend 

any of the MBTA’s language have little 

if any significance to interpreting the 

MBTA. 

Comment: The proposed rule 

contained no information on the 

consequences of the action on migratory 

birds and the environment as a whole 

(through decreased ecosystem services). 

The commenter went on to note that 

there is no evidence presented as to the 

economic burden for implementing 

voluntary best management practices. 

Response: Per the National 

Environmental Policy Act (NEPA), the 

Service analyzed the impacts mentioned 

by the commenter within the draft 

Environmental Impact Statement (EIS) 

published June 5, 2020. Within the EIS, 

the Service analyzed impacts of the no 

action alternative and two additional 

alternatives on (1) The overall effect of 

each alternative on migratory bird 

populations, (2) the effect of any 

decrease in migratory bird populations 

on ecosystem services, (3) the potential 

effects of climate change in combination 

of each alternative, and (4) the impacts 

to industry and small business that may 

profit from migratory birds. The Service 

also asked for and provided discussion 

on what extent industry would continue 

to implement best practices when there 

is no incentive to do so. This EIS was 

open for public comments, and 

comments focused on these analyses are 

addressed within the final EIS. We have 

added additional discussion in the final 

EIS and Regulatory Impact Analysis 

regarding the types of practices and 

types of costs associated with best 

practices. 

Comment: Multiple commenters 

noted that the process being used for 

this rulemaking is unconventional. The 

commenters noted that the proposed 

rule was published with a notice of 

intent to prepare an EIS but without any 

concurrent environmental analysis of 

alternatives. This approach 

compromised the ability of commenters 

reviewing the proposed rule to 

understand fully the effects of the rule. 

Further, the subsequent publication and 

comment period on the draft EIS was 

after-the-fact, indicating a decision was 

already made regardless of the 

environmental consequences 

determined in the EIS. In addition, 

commenters noted that the 45-day 

comment period was inadequate for a 

rule that proposes to substantially 

change decades of conservation policy 

and hinder bird conservation in the 

United States, given the current 

National State of Emergency in response 

to the novel Covid–19 coronavirus. 

Many of these commenters requested an 

extended comment period. 

Response: The procedures followed in 

this rulemaking process were 

appropriate and lawful. A draft EIS, 

issued subsequent to the proposed rule, 

analyzed various alternatives, some of 

which were discussed in the public 

webinars conducted as part of the NEPA 

scoping process. One alternative in the 

draft EIS covers the expected effects of 

reverting to the Department’s prior 

interpretation of the statute. There is no 

requirement under the Administrative 

Procedure Act (APA) to consider 

alternatives in the proposed rule itself 

(Executive Order 12866 requires 

consideration of alternatives that would 

have less economic impact on regulated 

entities for economically significant 

rulemakings, as set forth in the 

regulatory impact analysis made 

available for review with the proposed 

rule). The NEPA process provides a 

broad analysis of the environmental and 

socioeconomic impacts of reasonable 

alternatives to the agency’s proposal. 

The 45-day period for commenting on 

the proposed rule and NEPA scoping 

process, along with the subsequent 45- 

day comment period for the draft EIS, 

provided sufficient time for the public 

to address this rulemaking. Moreover, 

the M-Opinion, which provided the 

original basis for this rulemaking, has 

been publicly available for more than 2 

years. 

Comment: Members of the U.S. Senate 

commented that the Department closed 

the comment period on the proposed 

rule in mid-March during the height of 

a pandemic, ignoring requests from 

some in Congress to extend the 

comment deadline, and without even 

responding to Congress until after the 

deadline ended. Since then, some of the 

Nation’s governors, State legislatures, 

and mayors jointly requested a 

suspension of public comment periods 


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during this national emergency. The 

Department should not be putting 

additional burdens on the public to 

respond at a time when the public is 

dealing with a global pandemic. The 

Department appears to be rushing 

through this entire process to meet an 

arbitrary timeline. At the very least, the 

Department should not be providing the 

minimum comment period. Rather, it 

should extend that comment period by 

45 days or more. 

Response: The procedures followed in 

this rulemaking process were 

appropriate and lawful. The Department 

provided 45-day comment periods on 

both the NEPA scoping process and the 

draft EIS and a separate 45-day 

comment period on the proposed rule. 

These three separate 45-day periods 

provided sufficient time for the public 

to address this rulemaking. Moreover, 

the M-Opinion, which provided the 

original basis for this rulemaking, has 

been publicly available for more than 2 

years. 

Comment: Multiple commenters 

noted that NEPA requires that decisions 

be analyzed in a public process before 

an agency irretrievably commits its 

resources. Specifically, an agency ‘‘shall 

commence preparation of an [EIS] as 

close as possible to the time the agency 

is developing or is presented with a 

proposal.’’ The DOI should suspend MOpinion 37050 while the Service 

considers the environmental impacts as 

required by NEPA. 

Response: The Service began the 

NEPA process at the appropriate time— 

when it first considered rulemaking 

regarding the interpretation of the 

MBTA originally set forth in M–37050. 

The Service drafted the proposed rule 

with sufficient flexibility to incorporate 

the alternatives analyzed in the draft 

EIS. The NEPA process informed our 

decision-making process culminating in 

this final rule. 

Comment: The Flyway Councils noted 

that the proposed rule was brought forth 

without the proper procedures as 

outlined by NEPA and the APA. The 

Flyways noted that there was no 

advance notice of rulemaking to assess 

the implications of the proposed rule. In 

addition, the Flyways noted that no 

alternatives were put forth and there 

was no opportunity to propose other 

alternatives. 

Response: The Service announced the 

scoping process in a notice of intent 

(NOI) to complete an EIS in the Federal 

Register on February 3, 2020 (85 FR 

5913). An advanced notice of proposed 

rulemaking is not required. The Service 

has provided three opportunities to 

submit comments through the scoping 

notice, the proposed rulemaking, and 

the publication of the draft EIS. 

Comment: One State expressed 

concern with the Service’s attempt to 

alter its previous interpretation of the 

MBTA (M–37041) in the absence of 

review pursuant to NEPA. Therefore, 

the State requested that the short- and 

long-term impacts of the proposed rule 

change be fully and accurately 

evaluated in the EIS, and that there be 

at least a 60-day comment period after 

the draft EIS is published in order to 

facilitate a thorough public review. In 

the Service’s evaluation of those 

impacts, it is critical to compare the 

proposed rule’s impacts with the prior 

interpretation of the MBTA represented 

in M–37041, which concluded that the 

MBTA prohibits incidental take. 

Response: The Service has fulfilled 

the commenter’s request through the 

publication of a draft EIS, which 

analyzed a no action alternative and two 

action alternatives. One of the 

alternatives reverts to the prior 

interpretation of the MBTA described in 

Solicitor’s Opinion M–37041. In the 

draft EIS, we compared the impacts of 

codifying M–37050 with returning to 

the prior Opinion’s interpretation. We 

established 45 days as an appropriate 

period for public comment on the draft 

EIS. We concluded a 45-day comment 

period was reasonable given the prior 

opportunity to comment on the scoping 

notice published on February 3, 2020 

(85 FR 5913), and during the associated 

public hearings, which invited input on 

the environmental effects of the 

proposed action and the potential 

alternatives we should consider. 

Comment: Multiple commenters were 

concerned about the unorthodox 

approach of simultaneously publishing 

a draft rule and a NEPA scoping 

announcement and seeking comments 

on both at the same time. The 

commenters felt this approach strongly 

suggests that the Service had already 

reached a conclusion about the outcome 

of this process and that the NEPA 

process is nothing more than a 

formality. Under the normal NEPA EIS 

process, Federal agencies would 

conduct scoping of an issue, develop 

multiple action alternatives, put those 

alternatives out for public notice and 

comment, and ultimately select an 

alternative to advance. In this case, the 

Service appears at the scoping phase to 

have already selected the outcome it 

intended to reach. 

Response: The Service began the 

NEPA process at the appropriate time— 

when it first considered rulemaking 

regarding the interpretation of the 

MBTA originally set forth in M–37050. 

The Service drafted the proposed rule 

with sufficient flexibility to incorporate 

the alternatives analyzed in the draft 

EIS. The NEPA process informed our 

decision-making process culminating in 

this final rule. 

Comment: The Service cannot 

conduct a credible NEPA process based 

on the timeline and chronology it has 

presented at this point. Completing the 

entire NEPA process and reaching a 

final record of decision (ROD) and final 

rule by fall of 2020 is an extraordinarily 

short timeline of less than 10 months to 

proceed from initial scoping to final 

rule. It is difficult to imagine any 

scenario under which the Federal 

agencies could review and give serious 

consideration to the comments it will 

receive on this proposed rule, let alone 

incorporate them into a final EIS, ROD, 

and final rule. 

Response: The Service has complied 

with the procedural requirements of 

NEPA for developing an EIS by 

publishing a scoping notice and a draft 

EIS inviting public comment before 

developing a final EIS and record of 

decision. The Service provided 

alternatives to the proposed action and 

has not predetermined any outcome of 

the NEPA process. The Service will take 

a reasonable amount of time to address 

and incorporate comments as necessary, 

deliberate on a final determination, and 

select an alternative presented in the 

final EIS. We will explain that selection 

in a record of decision at the 

appropriate time. 

Comment: Multiple commenters felt 

the manner in which this proposed 

rulemaking was announced on January 

30, 2020, by the Service’s Office of 

Public Affairs was improper and a 

violation of the APA (Pub. L. 79–404, 60 

Stat. 237). They asserted that the 

inclusion of 28 statements of support for 

this proposed rule within the 

rulemaking announcement establishes a 

record of pre-decisional collusion with 

certain interest groups by a regulatory 

agency that has tainted the entire 

rulemaking process and clouded the 

ultimate decision the Service will be 

called upon to make, once the comment 

period closes and all public testimony is 

fairly and impartially evaluated. 

Response: The Service did not collude 

with any stakeholders, industry or 

otherwise, on the contents of the 

proposed rule before it was published in 

the Federal Register. No organizations 

or persons outside of the Federal 

Government were given an advance 

copy of the proposed rule to read before 

it was published in the Federal 

Register. Interagency review limited to 

Federal agencies occurred prior to 

issuance of the proposed rule under 

procedures required by Executive Order 


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12866 and implemented by the Office of 

Management and Budget. The 

announcement of the proposed rule was 

primarily a notification to the public 

and the media summarizing the 

contents of the proposed rule and its 

availability for public comment, with 

the viewpoints of several stakeholders 

included. It is not part of the official 

APA rulemaking process or docket and 

plays no part in the agency’s ultimate 

decision. The announcement was not 

considered in developing this final rule. 

Comment: If the press release 

accepted quotes from industry and 

government entities, it should also have 

included quotes and perspectives from 

environmental NGOs or ornithologists 

to comply with APA fairness rules. 

Response: The referenced section was 

contained in a press release issued with 

the publication of the proposed rule. It 

is not part of the rulemaking record, and 

we did not consider the statements 

included in the press release as official 

public comments. The Service received 

many responses during the public 

comment period for the proposed rule 

from migratory bird experts and 

interested non-governmental 

organizations. We analyzed those 

comments, responded to any 

substantive issues presented, and 

amended the proposed rule where 

appropriate based on those comments. 

Comment: Multiple commenters 

noted that the codification of the 

Solicitor’s M-Opinion 37050 is 

premature as it has not been fully vetted 

or withstood legal challenges. These 

commenters recommended that the 

Service postpone any rulemaking 

regarding MBTA prohibitions of 

incidental take until the legal challenges 

to the M-Opinion currently pending in 

the United States District Court for the 

Southern District of New York are 

resolved. Given the uncertain future of 

M-Opinion 37050 and accompanying 

legal vulnerability of the proposed rule, 

it would be prudent for the Service to 

put the proposed rulemaking on hold 

until the courts have determined 

whether the M-Opinion on which it is 

based withstands legal scrutiny. 

Response: There is no statutory or 

other legal requirement to wait for a 

Departmental legal opinion or any other 

agency opinion to be vetted in Federal 

court before it can be codified as a 

regulation. In fact, agencies may codify 

interpretations struck down by courts 

and have subsequent courts defer to and 

uphold the later rulemaking. See Natl. 

Cable & Telecommunications Ass’n v. 

Brand X internet Svcs., 545 U.S. 967 

(2005). We note that on August 11, 

2020, a district court vacated M–37050 

and held that the plain language of the 

MBTA prohibits incidental take. See 

Natural Res. Defense Council v. U.S. 

Dep’t of the Interior, 2020 WL 4605235 

(S.D.N.Y.). We respectfully disagree 

with that court’s opinion and have 

finalized this rulemaking consistent 

with the Supreme Court’s holding in 

Brand X. 

Comment: The proposed rule 

incorrectly concludes that the terms 

‘‘kill’’ and ‘‘take’’ are ambiguous. Even 

if the terms were ambiguous, the 

proposed rule’s attempt to meld all the 

prohibited conduct into a singular 

meaning is unsupported by any canon 

of statutory interpretation. The Service 

proposes that ‘‘kill’’ and ‘‘take’’ exclude 

unintentional actions as they are listed 

among directed actions such as ‘‘hunt’’ 

or ‘‘pursue.’’ Yet this construction 

renders the list meaningless, working 

contrary to established norms of 

interpretation—if ‘‘kill’’ were limited to 

‘‘hunt’’ and ‘‘pursue,’’ then there would 

be no need to include ‘‘hunt’’ and 

‘‘pursue’’ on the list. The statutory 

context of the MBTA would make little 

sense if it merely prohibited directed 

action such as hunting because its 

purpose extends beyond conserving 

game birds. Its provisions protect nongame and insectivorous birds that are 

not—and have never been— 

intentionally pursued for game, 

poaching, or trafficking. 

Response: We disagree with the 

commenter’s interpretation of the 

MBTA. The preamble to the proposed 

rule and this final rule provides a 

detailed analysis of the language of the 

statute and why the scope of the MBTA 

does not include incidental take, 

including the best reading of the 

ambiguous terms ‘‘take’’ and ‘‘kill.’’ We 

refer the commenter to that analysis, 

which provides the basis for issuing this 

regulation. 

Comment: The plain language of this 

statute pertains to conduct directed at 

species, and nowhere in the operative 

language does the law suggest an intent 

on the part of Congress to impose 

criminal liability for the incidental 

effects of otherwise lawful activities. 

The scope of prohibited conduct covers 

actions, which require intent— 

‘‘pursue,’’ ‘‘hunt,’’ and ‘‘capture’’ are all 

actions directed at wildlife and cannot 

be performed by accident. The terms 

‘‘take’’ and ‘‘kill’’ are informed by the 

context of the rest of the statute in 

which they must be read, and by the 

legislative and historical record of the 

MBTA and other environmental laws. 

Response: We agree with the 

comment that the language of section 2 

of the MBTA pertains to conduct 

directed at migratory birds and not 

conduct that incidentally results in the 

death of migratory birds. 

Comment: The original legislative 

intent of the MBTA was the protection 

and sustainability of migratory bird 

populations. The word ‘‘protection’’ 

occurs in its first sentence. There has 

been no express delegation of lawmaking duties or authority to amend the 

MBTA. The MBTA’s legislative intent is 

to prevent needless losses, establish 

closed seasons for hunting, prohibit the 

taking of nests or eggs of migratory game 

or insectivorous nongame birds except 

for scientific or propagating purposes, 

further establish longer closures for 

certain species, and provide for the 

issuance of permits to address the 

killing of specified birds. Despite the 

phrase ‘‘incidental take’’ not appearing 

in either the MBTA or implementing 

regulations, its protective statutory 

intent remains clear, as shown by its 

common and long-time use in 

Congressional hearings and 

correspondence, and in inter- and intraagency communications. Since its intent 

has not been amended by an act of 

Congress, the agency charged by 

Congress with its administration does 

not have the authority to restrict its 

meaning and intent. 

Response: This rulemaking is based 

on the Department’s interpretation of 

ambiguous language in a statute the 

Secretary is charged with implementing 

and does not amend the language of the 

MBTA. It does not require any 

delegation from Congress other than the 

delegations to the Secretary already 

included in the terms of the statute. The 

Service disagrees that this rulemaking 

restricts the meaning and intent of the 

MBTA. The preamble to this rule 

explains our interpretation of the 

MBTA’s statutory language and 

legislative history and why the 

interpretation set forth by this rule is 

consistent with and the best reading of 

that language and history. Thus, we 

disagree with the commenter’s assertion 

that this rule restricts or alters the 

meaning or intent of the MBTA. 

Comment: Although the MBTA was 

written in large part to address the thenlargest threat to migratory birds— 

hunters and poachers—the proposed 

rule offers no evidence to show its 

passage was intended to regulate only 

the activities that threatened birds in 

1918. With ‘‘effective protection,’’ the 

drafters wanted to be able to revive and 

sustain completely decimated 

populations on behalf of the Americans 

who recognized aesthetic, economic, 

and recreational value in sustaining 

migratory bird populations. To impose a 

limit on the activities it could regulate 

under the MBTA would be to ossify this 


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broadly written protection into only 

applying to activities that existed during 

the decade immediately following its 

passage. An intention found nowhere in 

its text, legislative history, or 

subsequent interpretation and 

implementation. 

Response: Congress’s primary concern 

when enacting the MBTA in 1918 was 

hunting, poaching, and commercial 

overexploitation of migratory birds. It is 

clear from the legislative history leading 

up to the statute’s passage that Congress 

drafted language to address those 

threats. To be sure, Congress may draft 

statutory language to include potential 

future concerns not readily predicted at 

the time of enactment, but there is no 

indication that Congress intended the 

language of section 2 to encompass 

accidental or incidental deaths of 

migratory birds. Instead, the balance of 

the legislative history favors the 

opposite interpretation as explained in 

the preamble. 

Comment: A letter from some 

members of the U.S. Senate stated that 

the stakes of the proposed rule are 

considerable, and like the legal opinion, 

it will have a significant detrimental 

impact on migratory birds. This letter 

explained that birds provide 

tremendous value to our communities. 

Congress and the executive branch 

understood this fact a century ago when 

it signed the 1916 treaty and passed the 

MBTA, even in the midst of World War 

I. Congress also recognized that birds 

benefit American agriculture and 

forestry through the consumption of 

vast numbers of insect pests. This fact 

remains true today and takes on new 

importance with the spread of invasive 

species and outbreaks. The proposed 

rule contravenes the text and purpose of 

the MBTA and fails to align with the 

purpose of our migratory bird treaties 

and our international obligations. The 

rule also presents a false choice between 

regulatory certainty and implementing 

the MBTA. 

Response: This rulemaking does not 

present a false choice between 

regulatory certainty and implementing 

the MBTA. M–37050 concluded that the 

MBTA does not prohibit incidental take. 

This rulemaking codifies that 

interpretation; thus, the Service has 

ultimately determined that developing a 

framework to authorize incidental take 

is not an action that is consistent with 

the statute. The Service notes that a 

Federal regulation applies across all 

agencies of the Federal Government and 

provides a more permanent standard 

that the public and regulated entities 

can rely on for the foreseeable future, in 

contrast to continued implementation of 

the MBTA under a legal opinion. This 

difference is underscored by the recent 

Federal district court decision vacating 

the M-Opinion. The final EIS and 

Regulatory Impact Analysis analyze the 

ecosystem services, such as insect 

consumption, provided by migratory 

birds. 

Comment: Multiple commenters 

presented arguments that the Service 

has misquoted the provisions of the 

MBTA and that the proposal does not 

address the statutory authority in 

section 3 to authorize take of migratory 

birds that would otherwise violate the 

statute, which the commenters contend 

is the source of the Secretary’s authority 

to implement the statute. 

Response: This proposal does not 

authorize the taking of migratory birds; 

it defines the scope for when 

authorizations under section 2 are 

necessary and proper. Thus, it does not 

rely on the statutory language presented 

by the commenter. The authority to 

implement a statute necessarily comes 

with it the authority either to interpret 

ambiguous language in that statute or to 

correct a prior improper interpretation 

of that statute. The authority in section 

3 is also contingent on an understanding 

of what actions violate the statute in the 

first place. 

Comment: Several commenters 

suggested that the proposed rule paints 

a broad brush over incidental takes, 

treating all equally and absolving even 

grossly negligent behavior that can 

result in the large-scale death of birds. 

The commenters suggested that the 

Service modify the proposed rule to 

include a provision where incidental 

take resulting from reckless negligent 

behavior is considered a violation (i.e., 

gross negligence). This approach would 

include creating a definition of ‘‘extrahazardous activities’’ and enforcing 

incidental take when it results from 

gross negligence. The commenters 

conclude that the Service should focus 

enforcement of incidental take on largescale, high-mortality, and predictable 

situations where unintentional loss of 

migratory birds is likely to occur, based 

on the best scientific information. The 

language of the act needs to be changed 

to protect those who injure birds on a 

purely accidental basis. However, there 

needs to be language that allows for the 

prosecution of individuals who are 

grossly negligent. 

Response: During scoping for the 

associated EIS, we considered an 

alternative where the Service would 

promulgate a regulation defining what 

constitutes incidental take of migratory 

birds and develop an enforcement 

policy requiring gross negligence to 

establish a misdemeanor violation of the 

MBTA. The Service eliminated this 

alternative from further review because 

the vast majority of Federal courts have 

concluded the MBTA’s misdemeanor 

provision is a strict liability crime—in 

other words, it has no minimum mens 

rea requirement. Because the proposed 

alternative would have established a 

minimum mens rea of gross negligence 

before the Service could enforce the 

statute’s misdemeanor provision, it 

would not be legally defensible. Thus, 

codifying the Service’s interpretation of 

the scope of the MBTA under a gross 

negligence standard would only serve to 

reduce legal certainty. 

Comment: One commenter 

recommended that the Service prohibit 

incidental take that results from an 

extra-hazardous activity. The 

commenter felt that providing such a 

take threshold would allow the Service 

to address incidental take that occurs 

because of an entity’s negligence. 

Response: The proposed rule did not 

provide a threshold for prohibiting 

incidental take because it proposed to 

codify the interpretation set forth in M– 

37050 that the Act does not prohibit 

incidental take in the first place. The 

commenter is essentially proposing 

adopting an extra-hazardous activity 

requirement as a proxy for negligence or 

gross negligence. We decline to adopt 

that proposal for the same reasons we 

rejected application of a grossnegligence standard. 

Comment: One commenter 

recommended following a Safe Harbor 

approach for industry that participates 

in avoidance, minimization, and 

mitigation measures. 

Response: This approach would be 

very similar to establishing a policy to 

decline enforcement except in cases of 

gross negligence. We decline to adopt 

this proposal for the same reasons we 

rejected application of a grossnegligence standard. 

Comment: Multiple commenters felt 

that the MBTA needed to be amended 

by Congress to make the changes being 

proposed in this regulation. 

Response: The commenters are correct 

that only Congress can amend the 

language of the MBTA. The Service is 

charged with implementing the statute 

as written. The Department’s Principal 

Deputy Solicitor, exercising the 

authority of the Solicitor pursuant to 

Secretary’s Order 3345, determined in 

M–37050 that the statute as written does 

not prohibit incidental take. We are 

codifying that interpretation in this 

rulemaking. Thus, we are simply 

interpreting the existing language and 

not amending the statute or altering 

statutory language in this regulation. 

Comment: One commenter suggested 

amending the proposed regulatory 


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language by adding: ‘‘provided that the 

person, association, partnership, or 

corporation takes reasonably practicable 

precautionary measures to prevent the 

taking or killing of migratory birds. 

Owing to the diversity in operations of 

the various industries affected by this 

rule, USFW shall develop industry 

specific guidelines for developing 

precautionary measures to prevent the 

taking or killing of migratory birds.’’ 

Response: The language proposed by 

the commenter is not consistent with 

our interpretation of the MBTA. The 

proposal would essentially be adding 

language to the MBTA given our 

interpretation that it does not prohibit 

incidental take. We have no authority to 

amend the statutory language or add 

provisions that simply are not there. 

Thus, we respectfully decline to adopt 

the commenter’s proposed language. 

Comment: Multiple commenters 

opposed the proposed action because 

recent studies have demonstrated that 

North American bird populations are 

facing significant population declines. 

Birds have economic and ecosystem 

services value, and, if birds continue to 

decline, the economy and ecosystems 

will be compromised. The commenters 

called for more protections and see the 

proposed rule as weakening actions for 

the conservation of migratory birds. 

Response: The Service is aware of the 

recent science that demonstrates that 

North America has lost nearly 3 billion 

birds over the last 50 years. However, 

the proposed action is based on a legal 

interpretation of the MBTA. It is also 

noteworthy that those losses occurred 

despite the Department’s prior 

interpretation of the MBTA as 

prohibiting incidental take. The Service 

is a conservation organization and will 

continue to address bird-conservation 

priorities in a manner that provides for 

the most effective conservation of 

protected species, such as working with 

domestic and international partners to 

conserve habitat and habitat 

connectivity, addressing threats both 

anthropogenic and natural, developing 

partnerships with Federal, State, and 

Tribal agencies, industry and NGOs that 

address the greatest conservation needs, 

and effectively implementing the array 

of Federal statutes that provide 

protections for migratory birds. For 

example, the Service will continue to 

work with any partner that is interested 

in reducing their impacts on birds by 

developing voluntary practices to 

reduce mortality and providing 

technical assistance for effectively 

implementing those practices. 

Comment: Multiple commenters 

opposed the proposed rule because it 

removes the MBTA as the only 

mechanism that the Service can apply to 

require actions that avoid or minimize 

incidental take that is otherwise 

preventable. 

Response: The Service does not agree 

that the MBTA is the only mechanism 

to achieve bird conservation. The 

Service is committed to working with 

those that voluntarily seek to reduce 

their project-related impacts to 

migratory birds. In addition to the 

MBTA, other Federal and State laws 

protect birds and require specific 

actions to reduce project-related 

impacts. 

Comment: Multiple commenters 

opposed the proposed rule because, as 

written, the rule does not hold entities 

accountable for causing the incidental 

take of migratory birds. 

Response: Our interpretation set forth 

in the proposed rule is that take 

incidental to the purpose of the action 

is not prohibited under the MBTA. We 

will not hold entities accountable for 

take that does not violate the MBTA. 

The Service will continue to manage 

and enforce the provisions of the MBTA 

as they relate to activities directed at 

migratory birds, including ensuring 

those holding take permits are 

accountable for complying with these 

permits. 

Comment: Some commenters 

suggested that the interpretation of the 

MBTA set forth in the proposed rule is 

flawed and does not account for the 

mission of the Department and the 

Service. 

Response: The enforcement of the 

MBTA is just one part of how the 

Service works with others to conserve 

migratory birds. We have found that 

building partnerships domestically and 

internationally to build strategies for 

implementing measures that protect, 

manage, and conserve migratory birds is 

a more effective conservation tool than 

enforcing incidental take under the 

MBTA on a piecemeal basis with our 

limited law enforcement resources. A 

few examples of our partnership work 

include: (1) Managing and 

implementing grant programs under the 

Neotropical Migratory Bird 

Conservation Act and North American 

Wetlands Conservation Act, (2) using 

Joint Ventures to build regional 

partnerships for habitat and species 

conservation, and (3) working with 

other Federal, State, and industry 

partners to develop voluntary solutions 

for reducing impacts to migratory birds 

and their habitat. 

Comment: Multiple commenters 

supported the proposed action because 

a clarification of the scope of the MBTA 

was needed to avoid unnecessary 

regulation of industry projects. 

Response: The Service appreciates the 

perspective of the entities that support 

this rulemaking. 

Comment: Multiple commenters 

supported the proposal because, in their 

view, criminalizing incidental take does 

not advance conservation and other 

mechanisms could be used to protect 

birds. 

Response: The Service agrees with 

this comment. We will continue to work 

with any entity that seeks to reduce 

their impacts to migratory birds to 

achieve conservation outcomes. 

Comment: One commenter asked who 

would be financially responsible to 

mitigate and/or reverse the effects of an 

environmental disaster on a large or 

small scale, to prevent any further 

incidental takes of birds or their eggs 

once the disaster is under way. The 

commenter noted that under the prior 

interpretation of the MBTA, the party 

causing the disaster was clearly held 

liable and financially responsible. 

Under the new interpretation, this is no 

longer the case. The commenter asked 

whether the Service will be establishing 

a fund to step in for cleanup and 

incidental take mitigation when 

environmental mishaps occur. If not, 

where does the Service anticipate such 

needed funds will originate? 

Response: The proposed rule does not 

directly affect Natural Resource Damage 

assessments for accidents that have 

environmental impacts because 

statutory authorities that provide the 

basis for that program do not rely on the 

MBTA. Pursuant to the Comprehensive 

Environmental Response Compensation 

and Liability Act, the Oil Pollution Act, 

and the Clean Water Act, the 

Department is authorized to assess 

injury to natural resources caused by 

releases of hazardous substances and 

discharges of oil to compensate the 

public for lost natural resources and 

their services. The Department’s 

assessment of natural resource injuries 

under the Natural Resource Damage 

Assessment Program includes any 

injury to migratory birds, which in 

many cases could otherwise be 

classified as incidental take. 

Comment: One commenter asked 

whether any best management practices 

would be required under any 

circumstances and how the proposed 

rule affected both Executive Order 

13186: Responsibilities of Federal 

Agencies to Protect Migratory Birds and 

the implementation of the Land-based 

Wind Energy Guidelines. 

Response: Best management practices 

(BMPs) have never been required under 

the MBTA, other than as part of our 

occasional application of the special 

purpose permit provision to authorize 


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incidental take under certain 

circumstances, as there has never been 

a specific permit provision for 

authorizing incidental take that would 

require their implementation. The 

Service has worked with project 

proponents to encourage the voluntary 

use of BMPs and used enforcement 

discretion to determine when an 

enforcement action was appropriate. 

Under the proposed rule, the Service 

will continue to work with and 

encourage the voluntary 

implementation of BMPs when the 

entity seeks to reduce their projectrelated impacts. E.O. 13186 remains in 

place and is a valuable tool for Federal 

agencies to work cooperatively to 

implement bird conservation strategies 

within their agency missions. The Landbased Wind Energy Guidelines are a 

voluntary approach to siting windenergy facilities. This rule may reduce 

the incentive for affected parties to 

implement these guidelines. 

Comment: Several commenters stated 

that some estimates of bird mortality 

used in the rule are more than a decade 

old and out of date. In one of the 

comments, they referenced that the 

proposed rule cites 500,000 to 1,000,000 

deaths per year at oil pits as old and 

high, suggesting that new technological 

innovation and State regulations have 

caused a decrease in oil pit mortality. 

Response: The summary of mortality 

from anthropogenic sources was based 

on the best scientific information 

currently available. Often, monitoring of 

industrial projects is not conducted, and 

when it is, the Service rarely gets 

reports of the findings. The Service 

recognizes that these estimates may 

represent both over- and underestimates depending on the mortality 

source. Within our environmental 

analysis of this rulemaking conducted 

under NEPA, we acknowledge that other 

Federal or State regulations may require 

measures that reduce incidental take of 

birds. In the proposed rule and the 

NEPA notice of intent, and during the 

public scoping webinars, the Service 

requested that new information and data 

be provided to update our current 

information on sources and associated 

magnitude of incidental take. The 

Service did not receive any industryrelated information for further 

consideration. If an industry sector has 

new or different information, we 

encourage them to submit those data to 

the Service for review and 

consideration. 

Comment: A few commenters stated 

that the Department of the Interior’s 

reinterpretation of the MBTA removed a 

broad layer of protection to birds against 

industrial harms and requested that the 

Service explain in the preamble how 

such action compounds or alleviates the 

findings of certain reports and other 

available science and biological data— 

including but not limited to data from 

Partners in Flight, the State of the Birds 

report, Christmas Bird Counts, Breeding 

Bird Surveys, and project-level nesting 

and demographic information that the 

Service has on file. 

Response: The Service acknowledges 

that birds are currently in decline. 

Numerous technical reports including 

the 2019 Science paper have highlighted 

the declines in many habitat groups due 

to numerous anthropogenic sources (see 

page 26). However, this rulemaking is 

not expected to affect significantly those 

continuing declines. The Service will 

continue to work with partners to 

address migratory bird declines outside 

of a regulatory context. 

Comment: One commenter in support 

of the proposed rule noted that there are 

other statutes that protect birds, 

including NEPA; industry would still 

have to comply with some of these laws 

and thus birds would benefit. There are 

also State and local laws that would 

prevent the unnecessary killing of birds. 

Response: The Service recognizes that 

there are numerous reasons why an 

entity would continue to implement 

best practices, including other Federal 

or State laws, industry standard 

practices, public perception, etc. These 

mechanisms could reduce impacts to 

birds in some circumstances. We note, 

however, that NEPA does not provide 

substantive environmental protections 

by itself. 

Comment: Multiple commenters 

recommended the Service clarify how 

the Service will continue to collect 

project-level data on industrial impacts 

to birds. There is concern from the 

commenters that the impact of this 

proposed rule will be a long-term loss 

of data and oversight of industrial 

impacts to avian species. 

Response: Project-level information is 

still recorded when a project proponent 

engages the Service for technical 

assistance. It is not required for projects 

to submit data on incidental take; 

however, we encourage proponents 

voluntarily to submit these data so that 

we are able to track bird mortality. We 

note that even under the prior 

interpretation of the MBTA, there was 

no general mechanism to provide for the 

collection of project-level data on 

impacts to avian species. When an 

intentional take permit is issued, 

conditions of that permit request any 

information on incidental mortalities 

that are discovered. The Service will 

continue to work to develop 

partnerships with industry sectors to 

monitor incidental mortality and the 

stressors causing this mortality, as well 

as to develop voluntary best practices 

that industry sectors can implement 

when they seek to reduce their projectlevel impacts on the environment. 

Comment: One commenter focused on 

impacts of wind energy and suggested 

that the final rule should provide 

language that terminates wind-energy 

projects where the migratory bird 

mortality levels are not remediable. The 

commenter suggested that, without such 

thresholds, the MBTA will be rendered 

meaningless. 

Response: Our interpretation of the 

MBTA concludes that the statute does 

not prohibit incidental take, including 

any resulting from wind-energy 

facilities. However, the Service will 

continue to work with any industry or 

entity that is interested in voluntarily 

reducing their impacts on migratory 

birds to identify best practices that 

could reduce impacts. With respect to 

the wind industry, the Service will 

continue to encourage developers to 

follow our Land-based Wind Energy 

Guidance developed through the 

collaboration of many different 

stakeholders, including industrial and 

environmental interests. 

Comment: Multiple commenters 

recommended that the Service abandon 

the current proposed action and revert 

to the previous M-Opinion and the 2015 

MBTA proposal for developing and 

implementing a general permit program 

that works with industry to identify best 

practices to avoid or minimize avian 

mortality. The commenters noted that a 

well-designed general permit system 

will also create efficiencies for industry 

by removing regulatory uncertainty for 

developers and investors. Permit 

holders would have no risk of 

prosecution provided they comply with 

the terms of the permit. Further, it will 

discourage actors who fail to avoid, 

minimize, or mitigate for the impacts of 

their activities from gaming the system 

and taking advantage of the Service’s 

limited prosecutorial resources. 

Response: In the draft EIS, we 

considered an alternative under which 

the Service would promulgate a 

regulation defining what constitutes 

incidental take of migratory birds and 

subsequently establish a regulatory 

general-permit framework. The Service 

eliminated that alternative from further 

consideration because developing a 

general-permit system would be a 

complex process and better suited to 

analysis in a separate, subsequent 

proposal. Thus, we did not consider 

developing a general permit program as 

suggested by the commenters. 


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Comment: One commenter 

recommended imposing stricter 

regulations along main migratory routes 

where high concentrations of MBTA 

species are biologically vulnerable 

(including stopover areas along 

migration routes, and core breeding/ 

wintering areas), especially for 

threatened or endangered species or 

Species of Conservation Concern. 

Response: Given our interpretation of 

the MBTA, the commenter’s proposal is 

not a viable option. This final rule 

defines the scope of the MBTA to 

exclude incidental take, thus incidental 

take that occurs anywhere within the 

United States and its territories is not an 

enforceable violation. This rule does not 

affect the prohibitions under the ESA, 

and thus species listed under that 

statute would continue to be covered by 

all the protections accorded listed 

species under the ESA. The status of 

migratory bird populations in the areas 

described by the commenter may be 

relevant in our decision to permit take 

under the Service’s current permit 

system. 

Comment: Multiple commenters 

noted that M-Opinion 37050 and the 

proposed action will likely result in 

increased mortality of migratory birds. 

Thus, in combination with the already 

significant population declines of many 

species, the proposed rule will almost 

certainly result in the need to increase 

the number of bird species listed under 

the Endangered Species Act (ESA) and 

increase the risk of extinction. The 

commenters noted that such deleterious 

effects are a more than sufficient basis 

to withdraw the proposed rule (and the 

underlying Opinion). Given the 

Service’s recent elimination in the ESA 

regulations of automatic take protection 

for threatened species (subject to the 

adoption of species-specific 4(d) 

regulations), the proposed rule will have 

extremely deleterious impacts going 

forward as the Service increasingly lists 

species as threatened without affording 

them any protections for incidental take 

under the ESA. These entirely 

foreseeable effects of the action 

proposed by the Service must be 

analyzed in formal section 7 

consultation under the ESA. 

Response: While it is possible that 

this rule could potentially be a 

contributing factor in the future ESA 

listing of a migratory bird species, there 

is no requirement under section 7 to 

address the potential effects of an action 

on a species that may hypothetically be 

listed at some undetermined point in 

the future. Instead, section 7 requires an 

agency to analyze the effects of an 

action on currently listed or proposedto-be-listed species. This rulemaking 

will have no effect on those species. We 

also note that several Service programs 

exist that are designed to conserve 

species that are candidates for ESA 

listing, such as Candidate Conservation 

Agreements and the Prelisting 

Conservation Policy. 

Regarding the future listing of 

migratory birds as threatened species, as 

stated in the final rule rescinding the 

‘‘blanket rules’’ for threatened species 

(84 FR 44753, August 27, 2019) and 

restated here, our intention is to finalize 

species-specific section 4(d) rules 

concurrently with final listing or 

reclassification determinations. 

Finalizing a species-specific 4(d) rule 

concurrent with a listing or 

reclassification determination ensures 

that the species receives appropriate 

protections at the time it is added to the 

list as a threatened species. 

Comment: Multiple commenters 

noted that the effects of this rule on 

ESA-listed species must be seriously 

scrutinized in an EIS as well as in 

section 7 consultation under the ESA. 

The proposed rule will harm species 

that have already been listed as 

threatened and subject to broad ESA 

section 4(d) regulations. 

Response: The effects of this rule have 

been analyzed in the EIS accompanying 

this rulemaking. Under the ESA, we 

have determined that this rule regarding 

the take of migratory birds will have no 

effect on ESA-listed species. This rule 

does not alter consultation requirements 

under the ESA for migratory bird 

species also listed as endangered or 

threatened species. Any likely impacts 

of a Federal action on migratory bird 

species also listed under the ESA would 

require consultation whether or not 

incidental take of that species is 

prohibited under the MBTA. Thus, this 

proposed action would not have any 

effect on those species. 

Comment: Commenters claimed that 

the Service must examine the effect the 

proposed rule would have on certain 

ESA-listing decisions, such as a notwarranted determination or 4(d) rule, 

which may have been determined with 

the understanding that the MBTA 

incidental take protections would still 

apply. 

Response: The Service has not issued 

any 4(d) rules or not-warranted 

determinations with the understanding 

that MBTA protections stemming from 

an interpretation that it prohibits 

incidental take would still apply. 

Comment: Multiple States commented 

that the proposed rule would lead to 

further declines in migratory bird 

populations. The States voiced concerns 

that this rule would increase their 

species-management burden 

substantially as further declines in 

migratory bird populations could result 

in additional management requirements 

and protections for declining species, 

including additional listings under State 

endangered species protection laws 

implemented by State fish and wildlife 

agencies. This series of events would 

lead to further restrictions and require 

substantial resources to manage and 

ensure conservation and recovery. This 

rulemaking may violate federalism 

rules, as States will be required to use 

their budgets to implement migratory 

bird protection actions, including 

regulation development and permit 

systems. The limitation of State 

protections to projects within State 

borders, coupled with the absence of the 

Service providing necessary leadership 

and coordination would severely hinder 

migratory bird management and 

recovery efforts nationwide. 

Response: This rule would not violate 

any laws or executive branch policy 

regarding unfunded mandates. 

Unfunded mandates occur when 

Congress enacts Federal law that 

includes directives that must be carried 

out by States and does not also provide 

funding for the States to fulfill those 

Federal requirements. This rule would 

alter the Service’s interpretation of the 

MBTA to exclude incidental take from 

its scope. Thus, it removes what had 

been a Federal requirement for States to 

avoid engaging in or authorizing 

activities that incidentally take 

migratory birds. This rule effectively 

removes that directive. State partners 

are critical to the conservation of 

migratory birds, and we encourage 

States to continue to conserve and 

manage migratory bird species 

consistent with the MBTA and would be 

happy to engage with and assist our 

State partners in their management and 

conservation of MBTA species. The 

Service acknowledged in the EIS that 

this rule may result in incremental 

declines in bird populations as 

companies learn they are not required to 

implement best management practices 

to decrease incidental take. Enforcement 

actions have been few since the 2017 MOpinion, so it would be speculative to 

assert that this change in policy will 

result in further significant population 

declines. However, States may decide to 

expend resources for conservation and 

recovery of these species due to this 

rulemaking. 

Comment: How is the Service going to 

monitor bird populations to ensure that 

this proposal does not lead to increased 

population declines? If significant 

declines are noted, how will the Service 

respond if declines are attributed to 

incidental take? The commenter 


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recommended including a clause to stop 

the implementation of this proposed 

rule if populations are negatively 

impacted by incidental take from 

anthropogenic sources. 

Response: Monitoring bird 

populations is outside the scope of this 

action. However, the Service continues 

to work with the bird conservation 

community to identify, support, and 

implement bird-monitoring programs. 

The Service is partner to multiple efforts 

to track migratory bird populations (e.g., 

Partners in Flight Landbird Plan, Avian 

Conservation Assessment Database, 

etc.). These efforts and partnerships are 

not impacted by this rulemaking, and 

data will continue to drive the actions 

of the Service to protect migratory birds. 

The clause proposed by the commenter 

would be inconsistent with our 

interpretation of the Act and would 

essentially add a requirement to the 

MBTA. Only Congress can amend 

statutory language. 

Comment: Multiple commenters 

suggested that compliance with the 

MBTA was not a burden to State and 

local governments and has 

straightforward and minimal impacts on 

capital-improvement projects. The 

commenters noted there is a successful 

history of the Federal, State, and local 

governments along with industry 

working in coordination to implement 

measures to reduce impacts to migratory 

birds and that the proposed rule would 

dismantle the extraordinary and 

successful history of this cooperation. 

Given the success of the MBTA to date, 

the commenter felt the proposed action 

was unnecessary. 

Response: This rulemaking codifies 

our interpretation of the MBTA as 

prohibiting only conduct directed at 

migratory birds. It should not be viewed 

as standing in the way of the successful 

actions the commenter notes. The 

Service will continue to work with State 

and local governments as well as 

industry to implement voluntary 

measures to reduce impacts to migratory 

birds. This rulemaking should increase 

that cooperation and coordination by 

removing the specter of a potential 

criminal prosecution, which has often 

acted as a deterrent for private parties to 

share information with the Service on 

their impact on migratory birds and 

work with the Service on conserving 

migratory bird species. Economic effects 

on government entities are examined for 

each alternative in the RIA. 

Comment: Multiple commenters 

noted that the proposed action removes 

all incentives for industry to work with 

the Service. The commenters noted that 

through judicious enforcement and by 

working directly with industries to 

develop and implement best 

management practices, the MBTA has 

provided a key incentive for adopting 

common-sense practices that protect 

birds. The commenters suggested that, 

without any legal obligations, industries 

no longer need to consider how their 

activities may harm migratory birds or 

take action to prevent any harm. Thus, 

it is unlikely that the Service’s 

implementation of voluntary measures 

will result in benefits to birds. 

Response: There are many other 

factors that influence an entity’s 

decision to implement measures that 

may protect migratory birds from 

incidental take. In some cases, there are 

other Federal, State, Tribal, or local laws 

and regulations that directly or 

indirectly require actions to benefit or 

otherwise reduce impacts on migratory 

birds. Federal statutes such as the 

Endangered Species Act and the Bald 

and Golden Eagle Protection Act require 

entities to take steps to reduce 

incidental take and protect habitat, 

which may in turn benefit migratory 

birds and other wildlife. Many other 

Federal statutes include provisions that 

require implementing agencies to assess 

and mitigate potential environmental 

impacts, including impacts to migratory 

birds and their habitat. In addition, 

Federal agencies are required to 

evaluate their impacts to the 

environment under NEPA. NEPA 

compliance requires Federal entities to 

identify impacts to the environment 

affected by a proposal, including 

impacts to migratory birds and 

socioeconomic impacts if they are likely 

to occur. NEPA also requires Federal 

entities to assess potential mitigation of 

unavoidable adverse environmental 

impacts, which may include analysis of 

project design or mitigation measures 

that reduce potential impacts to 

migratory birds. 

Some States have statutes with 

procedural requirements similar to 

those found in NEPA (e.g., California 

Environmental Quality Act) and a 

variety of provisions regulating some 

form of incidental, indirect, or 

accidental take, or potentially allowing 

commissions or agencies to make 

applicable rules. In 2019, in response to 

M-Opinion 37050, California passed the 

Migratory Bird Protection Act, which 

makes it unlawful to take or possess any 

migratory nongame bird protected under 

the MBTA. Additional States may create 

new regulations to clarify that they have 

jurisdiction to regulate or otherwise 

oversee incidental take of migratory 

birds. Other factors entities consider 

include public perception, status as a 

green company, size of company, cost of 

implementation, perceived risk of 

killing migratory birds, or availability of 

standard industry practices. Some 

entities may continue to implement 

practices that reduce take for any of 

these reasons or simply to reduce their 

perceived legal risk due to short- or 

long-term uncertainty concerning future 

application of laws and regulations 

governing take of migratory birds. 

Comment: One commenter stated that 

the removal of Federal authority to 

regulate incidental take of migratory 

birds could strongly affect offshorewind siting and management decisions. 

One of the most important ways to 

minimize avian impacts from windenergy development and make it ‘‘birdfriendly’’ is to site projects properly and 

implement measures to avoid impacts. 

The commenter noted that many 

stakeholders are engaged in identifying 

common-sense mitigation measures to 

minimize remaining impacts from the 

construction and operation of windenergy facilities. Without a Federal 

mechanism for incorporating 

consideration of incidental take of 

migratory birds into decision-making, it 

will be much more difficult to make 

informed decisions that benefit bird 

populations. 

Response: The Service works with 

offshore-wind-energy companies and 

Federal and State agencies responsible 

for regulating this industry. The Service 

will continue to work to provide 

recommendations for voluntary 

measures and siting locations based on 

sound science. 

Comment: One commenter noted that 

the MBTA has not been used against 

many businesses in court because it has 

encouraged businesses to self-regulate, 

to the benefit of people and birds alike, 

as well as those businesses. This 

approach has long-term financial benefit 

as it focuses on prevention rather than 

reparations in the future. 

Response: The Service has provided 

in the past and will continue to provide 

in the future technical assistance to 

interested parties to implement 

measures to reduce negative effects on 

migratory birds. 

Comment: One commenter suggested 

that in some cases incidental take by 

industry should be considered 

purposeful since some of this mortality 

is well studied, predictable, and there 

are easy low-cost mitigation options 

available to reduce these takes. The 

commenter contended that entities that 

choose not to implement known 

measures are purposefully taking 

migratory birds. 

Response: Incidental take refers to 

mortality that occurs in the course of an 

activity that is not directed at birds and 

often does not relate to birds in any 


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way—for example, the intent of building 

a wind turbine is generating energy not 

killing birds. Though knowledge of the 

likely results of a suspect’s conduct may 

be relevant to determine whether a 

suspect has the requisite intent to 

violate a criminal statute, it is not 

relevant under the MBTA for two 

reasons: First, because criminal 

misdemeanor violations under the 

MBTA are a strict-liability crime, they 

do not require proof of intent. Second, 

the MBTA only prohibits actions that 

are directed at migratory birds. An 

activity that causes incidental take will 

never be directed at migratory birds 

regardless of the actor’s knowledge of 

the potential consequences. 

Comment: The analysis under the 

Regulatory Flexibility Act shows likely 

minimal economic benefit to all of the 

affected businesses. If anything, this 

finding argues that the proposed rule is 

a solution in search of a problem. In the 

commenters’ experience the expenses of 

taking measures to minimize incidental 

take are minor and even the fines are 

minor to small businesses. This analysis 

really shows that the benefits of the 

proposed rule are overblown and 

targeted to a few companies that just do 

not want to be regulated. 

Response: The purpose of this action 

is to provide an official regulatory 

definition of the scope of the statute as 

it relates to incidental take of migratory 

birds. This action is necessary to 

improve consistency in enforcement of 

the MBTA’s prohibitions across the 

country and inform the public, 

businesses, government agencies, and 

other entities what is and is not 

prohibited under the MBTA. 

Comment: Multiple commenters 

noted that the purpose and need of the 

rule is to create legal certainty and that 

this rulemaking removes a patchwork of 

court decisions that create uncertainty 

for MBTA compliance. The commenters 

noted that there is currently a 

patchwork of legal standards that 

protect migratory birds in each of the 

States. In the absence of national 

protection against incidental take, each 

State may seek to enforce or embolden 

existing State rules, thereby creating 

additional regulatory uncertainty for 

industry. The inconsistency among 

States in State code may complicate 

industry understanding of expectations 

across the many States in which they 

operate, potentially requiring multiple 

State permits to conduct business. 

Response: It is appropriate for 

individual States to determine whether 

and how to regulate incidental take of 

migratory birds, given that the MBTA 

does not prohibit incidental take. 

Although we conclude on balance that 

this correct interpretation of the MBTA 

will reduce regulatory uncertainty 

created by the prior agency practice of 

reliance on enforcement discretion, we 

acknowledged in our draft EIS that 

different State laws may create 

difficulties for national companies that 

must navigate those differences. We also 

note that this problem already exists in 

large part and do not expect this 

rulemaking to significantly contribute to 

inconsistencies in State laws. We will 

continue to cooperate with States that 

request our assistance in developing 

best management practices for various 

industries that minimize incidental take 

of migratory birds. In fact, such 

partnerships will likely become 

increasingly important to promote 

conservation of migratory birds and lead 

to greater consistency in both 

conservation and regulation nationwide. 

Comment: One commenter stated that 

in an international forum the United 

States agreed that the MBTA is a strictliability statute covering incidental take. 

The commenter noted that in 1999, 

several environmental groups from 

Mexico, Canada, and the United States 

filed a submission under the North 

American Agreement on Environmental 

Cooperation asserting that the United 

States was failing to enforce 

environmental laws, including the 

MBTA. The United States disputed the 

allegations, but acknowledged that the 

MBTA is a strict-liability statute 

covering incidental take, writing: 

‘‘Under the MBTA, it is unlawful by any 

means or manner, to pursue, hunt, take, 

capture [or] kill any migratory birds 

except as permitted by regulation 16 

U.S.C. 703–704. Except for the baiting of 

game birds, the MBTA is a strict liability 

statute that allows for the imposition of 

criminal penalties.’’ This is clear 

evidence of the longstanding U.S. 

position under international law, and in 

agreement with its treaty partners, that 

the MBTA is a strict-liability statute 

covering incidental take. The United 

States must honor its obligations under 

international law or change them 

through an act of Congress. 

Response: The language cited by the 

commenter simply refers to the language 

of the MBTA and asserts that it is a 

strict-liability statute. As described in 

the preamble to this rulemaking, the 

Service continues to view the 

misdemeanor provision as a strictliability crime consistent with the 

majority of Federal courts that have 

ruled on the issue. Any statements made 

by the United States in prior 

international meetings regarding 

whether the MBTA prohibits incidental 

take would have been consistent with 

the Department’s interpretation of the 

MBTA at that time, but we have since 

changed our position as reflected by this 

rulemaking. 

Comment: Multiple commenters 

stated that the rule sends a message to 

industry that companies do not need to 

implement even modest measures to 

prevent entirely foreseeable bird 

mortality. The commenters claimed that 

the rule communicates that for even the 

most egregious and demonstrably 

deliberate violations, violators’ realworld liability will still be limited by 

Service funding, investigatory resources 

and expertise, and political will with 

respect to enforcement. In all three 

categories, the Service is presently ill 

suited to fulfill the role envisioned by 

the proposed rule. To pretend otherwise 

ignores the agency’s own established 

practices and guidance and constitutes 

another failure of the Federal 

Government’s trust responsibilities. 

Response: We disagree with the 

commenters’ assertion that this rule 

signals that industry should not 

implement best management practices. 

The Service continues to be willing and 

able to work with any entity that is 

interested in developing and 

implementing voluntary measures that 

will avoid or minimize impacts to 

migratory birds. For example, the 

Service is working proactively with both 

the communication tower industry and 

with Federal agencies, cities, and other 

municipalities to address tower and 

glass collisions. The Service will 

continue to investigate instances of 

unauthorized taking or killing directed 

at migratory birds. This rulemaking will 

not affect those investigations. 

Comment: A commenter noted that 

deaths of birds that are preventable and 

foreseeable are, in the context of the 

MBTA, negligent. Deliberate implies an 

intentional act, where foreseeable means 

consequences that may be reasonably 

anticipated. Nevertheless, the proposed 

rule attempts to parse the difference 

between definitions of the terms 

‘‘deliberate’’ and ‘‘foreseeable.’’ 

Regardless of the scale and scope of 

destruction, the rule proposes to make 

deliberateness in the form of passive 

negligence consequence-free. By 

specifying that entities should be held 

liable only if they can be proven to have 

set out to purposefully kill birds, the 

proposed rule flips the burden from 

regulated entities to the government. If 

promulgated, the rule would force 

Service employees to act as private 

detectives with the nearly (and from all 

appearances, deliberately) impossible 

task of proving what was in the hearts 

and minds of violators. 

Response: The rule does not attempt 

to parse the difference between 


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‘‘deliberate’’ and ‘‘foreseeable.’’ Those 

terms are not relevant to our 

interpretation of the MBTA. We 

currently authorize, and will continue 

to authorize, various activities that 

directly take migratory birds through 

our permit regulations at 50 CFR part 

21. The Service’s Office of Law 

Enforcement will continue to investigate 

unauthorized taking and killing of 

migratory birds resulting from actions 

directed at migratory birds. The 

rulemaking will not change those 

investigations in any way or require our 

officers to prove anything in addition to 

what they already would have to prove. 

In some sense, actions directed at 

migratory birds are deliberate in nature, 

but the concept of foreseeability is not 

relevant. Regarding the commenter’s 

statements on enforcing a negligence 

standard, the misdemeanor provision of 

the MBTA contains no mental state 

requirement and is a strict-liability 

crime. For this reason, we cannot 

introduce a mental-state requirement 

such as negligence to the MBTA’s 

misdemeanor provision. 

Comment: Multiple commenters 

noted issues with how the proposed 

rule and associated NEPA document 

define a ‘‘Federal action.’’ The 

commenters noted that fundamental to 

this rulemaking effort is to identify 

properly the major Federal action. Major 

Federal actions include policy changes 

like M-Opinion 37050. The commenters 

stated that the rule ignores the real 

major Federal action and agency 

decision of greatest consequence: The 

Service’s reliance on Interior’s MOpinion 37050 to reverse course on 

decades of protections for migratory 

birds against incidental take. The 

environmental consequences of the 

underlying sweeping policy change, 

which occurred in M-Opinion 37050, 

have yet to be held up to the mandates 

of NEPA. The commenters stated that, to 

proceed in any defensible fashion, the 

agency must reckon with the 

consequence of adopting M-Opinion 

37050 in the first place. 

Response: The EIS associated with 

this rulemaking analyzes the difference 

between adopting an interpretation of 

the MBTA that excludes incidental take 

and the prior interpretation that the 

MBTA prohibits incidental take. Thus, 

in our view, the M-Opinion was neither 

final agency action nor major Federal 

action. It was simply the initial stage of 

a process to alter agency practice to 

conform to the correct reading of the 

MBTA regarding incidental take. We 

conducted the NEPA analysis at the 

appropriate time to analyze the 

environmental effects of this rulemaking 

to codify that interpretation. That 

analysis includes comparing the effects 

of both interpretations. 

Comment: A comment stated that an 

agency charged with administering a 

statute cannot restrict, amend, repeal or 

expand it without congressional 

approval. An agency has no authority to 

remove statutory protections without 

congressional approval. A rulemaking 

cannot violate a statute or make it 

inoperable and must be consistent with 

the legislative intent of the law. The 

proposed rule impermissibly excludes 

requirements of foreseeability and 

negligence by arguing that the statute 

only prohibits actions directed at birds 

to exempt industries whose projects kill 

birds incidentally. The proposed rule 

would largely make the statute 

inoperable, thus violating its 

congressional intent by removing its 

purpose. 

Response: The preamble to this 

rulemaking explains in detail our 

interpretation of the language of the 

MBTA, including applicable legislative 

history and why our interpretation is 

consistent with that history. Nothing in 

this rulemaking changes the language or 

purpose of the MBTA. Only Congress 

can enact or amend statutory language. 

The proposed rule uses the commonly 

understood definition of ‘‘incidental’’ 

and does not purport to redefine that 

term in any way. As stated on numerous 

occasions throughout this rule, the 

MBTA’s criminal misdemeanor 

provision is a strict-liability crime and 

we have no authority to insert a mental 

state such as negligence into that 

provision. That approach would require 

congressional action. The MBTA will 

continue to operate as Congress 

intended it to operate. The Service will 

continue to implement the full suite of 

regulations authorizing conduct 

directed at migratory birds. 

Comment: Multiple commenters 

suggest that the Service’s choice to 

release a proposed rule based on a 

policy change it is already 

implementing, and conduct a NEPA 

analysis after-the-fact, turns NEPA on its 

head. This confused order of events also 

hampers a fair public understanding of 

the agency’s proposed action, 

alternatives, and likely impacts. The 

agency in essence has already been 

implementing the underlying policy 

change that is reflected in the 

rulemaking without the benefit of public 

review and comment at the time it made 

that policy change. 

Response: The procedures followed in 

this rulemaking process were 

appropriate and lawful. The Service 

engaged the NEPA process at the time 

it began to consider rulemaking to 

codify the M-Opinion (the reasonable 

alternatives include potential outcomes 

of the proposed rulemaking), and that 

process will be complete before any 

final formal agency decision is made. A 

draft EIS, issued subsequent to the 

proposed rule on June 5, 2020, analyzed 

various alternatives, some of which 

were discussed in the public webinars 

conducted as part of the NEPA scoping 

process. Those alternatives analyze the 

environmental effects of both 

prohibiting incidental take under the 

MBTA and excluding incidental take 

under the MBTA and gave the public 

opportunity to comment on those 

effects. 

Comment: Multiple Tribes stated that 

this proposed action violates multiple 

Tribal-specific treaties, dating back to 

the mid-1800s. These treaties 

established the Federal Government’s 

trust responsibility to Federally 

Recognized Tribes. The Federal Indian 

trust responsibility is a continuing 

fiduciary duty and legal obligation owed 

by the Federal Government to Tribes as 

beneficiaries. Under the trust 

responsibility, the United States is 

legally responsible for the protection of 

Tribal lands, assets, resources, and 

treaty rights for the benefit of Tribes. 

Government-to-government consultation 

is one facet of effectuation of the trust 

responsibility. Several Tribes stated that 

they have no record of receiving any 

communication or outreach from the 

Service or DOI regarding the proposed 

regulation revisions or associated draft 

EIS, much less an invitation to consult 

on either. The Tribes recommended that 

the rulemaking process be paused so 

that intelligent and respectful 

consultation with any Tribe that 

expresses interest in response to the 

invitation to consult can proceed. 

Response: The Service takes its Tribal 

trust responsibilities seriously and 

completed government-to-government 

consultation when requested. Prior to 

the publication of the proposed rule, the 

Service held six public scoping 

webinars in March 2019, which were 

open to any members of the public, 

including members of Federal and State 

agencies, Tribes, non-governmental 

organizations, private industries, and 

American citizens. On March 16, 2020, 

the Service held a webinar that was 

restricted in attendance to allow only 

Tribal members to attend, with the sole 

purpose of informing Tribes of the 

proposed action. Tribal representatives 

were allowed to ask questions and seek 

clarifications. In addition, a letter was 

sent through our regional offices to 

invite Tribes to engage in this proposed 

action via the government-togovernment consultation process. Nine 

Tribes requested government-toVerDate Sep<11>2014 18:43 Jan 06, 2021 Jkt 253001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\07JAR2.SGM 07JAR2

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government consultation. The Service 

completed these consultations prior to 

publication of this final rule. 

Comment: Contrary to the Service’s 

position, the proposed definition of 

incidental take would not improve the 

implementation of the MBTA. This 

definition still requires law enforcement 

to prove intent, which can be just as 

difficult to prove, just as legally 

uncertain, and equally burdensome to 

law enforcement. 

Response: This rulemaking has no 

effect on investigations into conduct 

directed at migratory birds or the 

MBTA’s criminal felony and baiting 

provisions that require a specific mental 

state. We will continue to interpret the 

misdemeanor provision of the MBTA as 

a strict-liability provision with no 

mental-state requirement, including 

intent. 

Comment: One commenter noted that 

the recent Supreme Court ruling in 

Bostock v. Clayton County, Georgia, 140 

S. Ct. 1731 (2020), does not support this 

rulemaking. In Bostock v. Clayton 

County, the Supreme Court relied on the 

‘‘ordinary’’ meaning of title VII of the 

Civil Rights Act of 1964, to hold that it 

is unlawful to discriminate in 

employment decisions based on 

individuals’ sexual orientation. Id. at 

1754. In reaching this result, the Court 

squarely rejected the argument that the 

Court’s reading of the statute’s 

expansive terms ‘‘ignore[d] the 

legislature’s purpose in enacting Title 

VII’’ and that ‘‘few in 1964 would have 

expected Title VII to apply to 

discrimination against homosexual and 

transgender persons.’’ Id. at 1745. The 

Court reaffirmed the longstanding 

principle that ‘‘ ‘the fact that [a statute] 

has been applied in situations not 

expressly anticipated by Congress’ does 

not demonstrate ambiguity, instead, it 

simply ‘demonstrates [the] breadth’ of a 

legislative command.’’ Id. at 1749 

(citation omitted). The Supreme Court’s 

result and reasoning are impossible to 

square with a central justification for the 

proposed rule and M-Opinion 37050 on 

which it is based. According to the 

proposed rule, Congress’s purpose in 

enacting the MBTA was to ‘‘regulate the 

hunting of migratory birds,’’ and thus 

the broad prohibitions on any taking or 

killing of migratory birds without 

authorization from the Service should 

be construed so as not to encompass any 

taking or killing other than that 

specifically directed at migratory birds. 

85 FR at 5918, February 3, 2020. This, 

however, is exactly the mode of 

statutory construction rebuffed by the 

Supreme Court in Bostock. 

Response: The Supreme Court’s 

decision in Bostock is not applicable to 

our interpretation of the MBTA. Justice 

Gorsuch in Bostock was quite clear that 

legislative intent is only irrelevant if the 

language of the statute is plain, as he 

found the applicable language of the 

Civil Rights Act to be. He noted that a 

statute’s application may reach 

‘‘ ‘beyond the principle evil’ legislators 

may have intended or expected to 

address,’’ Bostock, 140 S. Ct. 1731, 

1749, but only where no ambiguity 

exists in the broadness of that statutory 

language. We do not rely on an 

argument that section 2’s application to 

incidental take would demonstrate 

ambiguity simply because Congress 

could not have foreseen that application 

in 1918. Instead, the language of 

MBTA’s section 2 is inherently 

ambiguous in nature as it relates to 

incidental take for the reasons stated in 

the preamble to this rulemaking and as 

evidenced by the split in Federal 

appellate courts that have addressed the 

issue. Therefore, the Supreme Court’s 

holding in Bostock does not apply here. 

Comment: The same commenter also 

noted that the recent Supreme Court 

ruling in Dep’t of Homeland Security v. 

Regents of the University of California, 

207 L. Ed. 2d 353 (2020), similarly does 

not support moving forward with this 

rulemaking. In Homeland Security, the 

Supreme Court rejected the Trump 

Administration’s effort to rescind the 

Deferred Action for Childhood Arrivals 

(‘‘DACA’’) program, partly because the 

Department of Homeland Security 

(‘‘DHS’’) had sought to justify its 

rescission of the entire program on the 

basis that certain affirmative benefits 

should not be extended to DACA 

recipients while failing to consider the 

policy alternative of decoupling the 

extension of benefits from the deferral of 

deportation action. Id. at 375. The Court 

held that ‘‘when an agency rescinds a 

prior policy its reasoned analysis must 

consider the ‘alternative[s]’ that are 

‘within the ambit of the existing 

[policy].’ ’’ Id. at 374, 375 (citation 

omitted). The Court held that this 

‘‘omission alone renders [the agency’s] 

decision arbitrary and capricious.’’ Id. at 

375. 

The commenter stated that this ruling 

and analysis further undermine the 

Service’s justification for reversing 

course on many decades of prior policy 

and practice in implementing the 

MBTA. The Service has sought to justify 

the reversal on the grounds that, 

‘‘[w]hile the MBTA does contemplate 

the issuance of permits authorizing the 

taking of wildlife . . . [n]o regulations 

have been issued to create a permit 

scheme to authorize incidental take, so 

most potential violators have no formal 

mechanism to ensure that their actions 

comply with the law.’’ 85 FR at 5922. 

According to the Service, this absence of 

regulations designed to address 

incidental take, and the reliance instead 

on discretionary enforcement, ‘‘has 

resulted in regulatory uncertainty and 

inconsistency,’’ thus necessitating a 

‘‘truly national standard’’ and a 

‘‘uniform’’ approach to implementation 

of the MBTA. Id. at 5922–23; see also 

draft EIS at 3 (stating that the ‘‘purpose 

and need’’ for the action is to ‘‘improve 

consistency in enforcement of the 

MBTA’s prohibitions’’). This refusal to 

scrutinize an otherwise viable 

alternative that would further the 

agency’s own purported objective—i.e., 

increasing certainty and consistency in 

enforcement—while also promoting the 

conservation of migratory birds, 

constitutes precisely the kind of 

arbitrary and capricious conduct that 

the Supreme Court denounced in its 

ruling on the DACA rescission. 

Response: The Court’s holding in 

Homeland Security does not apply to 

this rulemaking because the Service has 

considered the prior Departmental 

interpretation and agency practice in 

developing this rulemaking. Both the 

underlying M-Opinion and the 

preamble to this rule analyzed the prior 

interpretation and explained both why 

it is incorrect and why it does not 

provide the same level of certainty or 

consistency in enforcement. The EIS 

examined the impacts of this 

rulemaking and specifically compared 

the environmental impacts of adopting 

each interpretation of the MBTA to 

inform the decisionmaker of the 

consequences of adopting either 

alternative. Thus, the Service 

scrutinized alternatives to the preferred 

action of codifying our interpretation 

that the MBTA does not prohibit 

incidental take. 

Comment: A commenter stated that 

the prosecution of incidental take under 

the MBTA does not violate due process. 

The Solicitor’s M-Opinion and the 

proposed rule cite due process concerns 

as one justification for rolling back 

critical protections for migratory birds 

under the MBTA. The commenter noted 

that as the Courts have advised, ‘‘where 

an otherwise acceptable construction of 

a statute would raise serious 

constitutional problems, the Court will 

construe the statute to avoid such 

problems unless such construction is 

plainly contrary to the intent of 

Congress.’’ The commenter claimed the 

Service appears concerned that strict 

liability for incidental takes of migratory 

birds does not provide adequate notice 

of what constitutes a violation and 

would lead to absurd results. However, 

the interpretation of the MBTA applying 


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strict liability to the law’s criminal 

misdemeanor provision covering 

incidental take raises no constitutional 

problems, nor is it contrary to the intent 

of Congress. Rather, it is the only 

possible reading of the MBTA that 

accomplishes its intended purpose. 

Response: The commenter 

misconstrues our interpretation of the 

MBTA’s criminal misdemeanor 

provision in section 6. We agree that 

strict liability applies to misdemeanor 

violations of the MBTA. The due 

process concerns we raise in the 

preamble to this regulation apply to the 

Department’s prior interpretation of 

section 2 of the MBTA, rather than the 

criminal provisions of section 6. The 

Service determines the relevant 

language in section 2 to be ambiguous, 

which is consistent with the views of 

most Federal courts. Potential due 

process concerns are relevant when the 

language of a statute is ambiguous and 

assist in divining its proper meaning. 

We do not base our current 

interpretation solely on those due 

process concerns; instead, they reinforce 

our current interpretation as the correct 

construction of section 2’s ambiguous 

language. 

Comment: Multiple commenters 

claimed that because the new Solicitor’s 

Opinion rests on but does not resolve 

the Circuit court split indicates that 

courts are not obligated to adhere to its 

interpretation. The fact that no permit 

program has ever existed for incidental 

take demonstrates established 

precedent. The Department and the 

Service cannot ethically, legally, or 

morally make enforcement of Federal 

law a moving target for the convenience 

of the regulated industry. 

Response: The commenters are correct 

that whether the Service interprets the 

MBTA to prohibit or exclude incidental 

take, that interpretation will not by itself 

resolve the current split in the circuit 

courts. However, Federal courts are 

obliged to defer to an agency’s 

reasonable interpretation of ambiguous 

statutory language if that interpretation 

is codified in a regulation that 

undergoes public notice and comment 

under the Administrative Procedure 

Act. See Chevron, U.S.A. v. Natural 

Resources Defense Council, 467 U.S. 

837 (1984). Application of judicial 

Chevron deference to this rulemaking 

would provide more certainty than any 

prior position of the Department by 

increasing the likelihood that Federal 

courts will defer to the Service’s 

interpretation. We do not understand 

the point of the commenter’s statement 

that the absence of a prior permit 

program established precedent on 

whether or not the MBTA prohibits 

incidental take. The opposite would 

seem to be true. Regarding enforcement 

of Federal law, the Department and the 

Service are obligated to interpret and 

follow the law established by Congress. 

This rulemaking will establish a firm 

position on enforcement of the MBTA as 

it applies to incidental take and will not 

provide a moving target. The 

commenter’s assertion would be better 

applied to the Service’s prior exercise of 

enforcement discretion under the former 

interpretation, which left many 

regulated entities uncertain whether 

their conduct violated the MBTA and 

would be investigated by the Service. A 

primary reason for engaging in this 

rulemaking is to remove any uncertainty 

in application of the statute to alleviate 

precisely the concern voiced by this 

comment. 

Comment: Multiple Tribes stated that 

the United Nations ‘‘Declaration on the 

Rights of Indigenous Peoples’’ (2007) 

(‘‘UNDRIP’’), endorsed by the United 

States in 2010, recognizes that 

indigenous people must give Free, Prior 

and Informed Consent for projects 

affecting their interests, prior to 

approval of any project affecting their 

land or territories. Multiple federally 

recognized Tribes expect DOI to honor 

this policy in order to ensure no 

unilateral actions are taken that affect 

Tribal land, territories or people without 

Tribal consent. 

Response: The UNDRIP—while not 

legally binding or a statement of current 

international law—has both moral and 

political force. The United States 

Government announced its support of 

the UNDRIP in 2010. In its 

announcement, the United States 

explained that it recognizes the 

significance of the Declaration’s 

provisions on free, prior-and-informed 

consent, which the United States 

understands to call for a process of 

meaningful consultation with Tribal 

leaders—but not necessarily the 

agreement of those leaders—before the 

actions addressed in those consultations 

are taken. 

To this end, the United States 

supports these aspirations of the 

UNDRIP through the government-togovernment consultation process when 

agency actions may affect the interests 

of federally recognized Tribes. The 

Service has sought to involve and 

consult with Tribes regarding this 

rulemaking. Prior to the publication of 

the proposed rule, the Service held a 

NEPA scoping webinar on March 16, 

2020, that we allowed only Tribal 

members to attend, with the sole 

purpose of informing Tribes of the 

proposed action. The Service sought 

feedback from Tribal representatives to 

inform the rulemaking process and 

address Tribal concerns. We also sent a 

letter through our regional offices 

inviting Tribes to engage in this 

proposed action via the government-togovernment consultation process. Nine 

Tribes and two Tribal councils 

requested government-to-government 

consultation. The Service has completed 

these consultations with all interested 

parties. 

Comment: One commenter suggested 

that the proposed rule should be 

abandoned because the meanings of 

‘‘take’’ and ‘‘kill’’ need to be given broad 

interpretations to achieve the remedial 

purpose of protecting wildlife and 

remain consistent with the common law 

definitions of these terms. The 

commenter stated that the Department 

and the Service misinterprets the Fifth 

Circuit’s narrow decision in CITGO, 801 

F.3d 477 (5th Cir. 2015), which only 

holds that the MBTA does not impose 

strict liability for nonculpable 

omissions. Further, the commenter 

noted that the notice of the proposed 

rule acknowledges that Congress 

intended to adopt the common law 

definition of statutory terms such as 

‘‘take.’’ 

Response: The preamble to this 

rulemaking exhaustively explains our 

interpretation of the terms ‘‘kill’’ and 

‘‘take’’ in MBTA section 2. We disagree 

with the commenter’s conclusions and 

refer readers to our analysis in the 

preamble. 

Comment: One commenter stated that 

the proposed rule does not address the 

Service’s statutory authority to change 

the interpretation of the MBTA. The 

commenter stated that the proposed rule 

does not facilitate the Service’s only 

authorized action under the statute, 

which is the authority ‘‘to determine 

when, to what extent, if at all, and by 

what means, it is compatible with the 

terms of the conventions to allow’’ 

hunting, etc., of such birds, or any part, 

nest, or egg thereof. The Service’s 

proposal does not even address its 

actual statutory authority. 

Response: This proposal does not 

authorize the taking of migratory birds; 

it defines the scope for when 

authorizations under section 703 are 

necessary and appropriate. Thus, it does 

not rely on the statutory language 

quoted by the commenter. The authority 

to implement a statute necessarily 

comes with it the authority both to 

interpret ambiguous language in that 

statute and to correct a prior improper 

interpretation of that language. 

Comment: Multiple commenters 

stated that Solicitor’s M-Opinion 37050 

stands in direct conflict with Executive 

Order 13186 executed by President 


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Clinton in 2001. The commenters noted 

that the Executive Order defines ‘‘take’’ 

consistent with the Service’s general 

definition applicable to all wildlife 

statutes in 50 CFR 10.12. The Executive 

Order further states without any 

uncertainty that the MBTA and its 

implementing regulations apply to both 

intentional and unintentional takings of 

migratory birds. Because E.O. 13186 has 

not to date been revoked, M-Opinion 

37050 and this rulemaking directly 

conflict with that standing presidential 

directive. The Service must explain how 

the proposed rule meets and affects its 

own responsibilities and those of other 

Federal agencies under this Executive 

Order. 

Response: We do not agree with the 

commenters that this rulemaking 

conflicts with Executive Order 13186. 

This rulemaking does not directly affect 

how Federal agencies manage incidental 

take as set forth in memoranda of 

understanding (MOUs) developed under 

the Executive Order. E.O. 13186 was not 

designed to implement the MBTA per 

se, but rather was intended to govern 

Federal efforts to conserve migratory 

birds more broadly. In any case, each 

Federal agency should continue to 

comply with the Executive Order, and 

each agency with an MOU should 

continue to carry out that MOU, 

including any conservation measures 

that reduce incidental take, even though 

that take does not violate the MBTA. 

Comment: The Service must complete 

a full analysis of the impacts of the 

Solicitor’s M-Opinion itself, not just the 

incremental impacts of codifying the MOpinion. 

Response: The EIS analyzes the 

incremental impact of codifying M– 

37050 and the alternative of returning to 

the interpretation of the MBTA 

espoused by the prior Opinion, M– 

37041, which concluded the MBTA 

does prohibit incidental take. The EIS 

compares the environmental effects of 

both alternatives. Thus, the Service has 

analyzed the environmental impacts of 

adopting either opposing interpretation 

of the MBTA. 

Comment: The Service must reconcile 

how this action aligns with other legal 

statutes that protect birds and 

demonstrate how the rule aligns with 

other statutory obligations such as the 

Fish and Wildlife Conservation Act, 

which obligates monitoring for bird 

populations. 

Response: The Service’s 

implementation of the Fish and Wildlife 

Conservation Act is not directly relevant 

to this rulemaking. The Service will 

continue to monitor migratory bird 

species, particularly species of concern 

and candidates for listing under the 

ESA. This rulemaking will not 

significantly affect the Service’s 

obligations under other legal statutes 

that protect migratory birds. 

Comment: Only a few years ago, the 

United States exchanged formal 

diplomatic notes with Canada 

reaffirming our countries’ common 

interpretation that the treaty prohibited 

the incidental killing of birds. The 

Service must consider how its proposed 

interpretation is consistent with that 

diplomatic exchange and seek Canada’s 

views on the Service’s new 

interpretation in light of that exchange. 

Response: The exchange of diplomatic 

notes the commenter references 

occurred in 2008 and did not amount to 

an agreement that prohibiting incidental 

take was required by the Convention. 

Therefore, we do not regard our current 

approach to be inconsistent with the 

2008 diplomatic exchange. 

Comment: Numerous commenters 

requested that the Service return to the 

previous interpretation of the MBTA 

and publish a proposed rule that 

codifies the former interpretation that 

the MBTA prohibits incidental take. 

Response: We have chosen to codify 

the interpretation set forth in Solicitor’s 

Opinion M–37050 and interpret the 

scope of the MBTA to exclude 

incidental take. Thus, we decline the 

commenter’s request to codify the prior 

interpretation as set forth in M–37041, 

which would achieve the opposite 

effect. 

Comment: One commenter stated that 

it is notable that no additional 

alternatives were in the proposed rule. 

The commenter further noted that the 

Service failed to disclose the thought 

process followed in the selection of the 

proposed course of action in the 

proposed rule. Therefore, the 

commenter requested that the proposed 

rule be revised to include the three 

alternatives described in NEPA scoping 

and detailed information about the 

implementation of each, ensuring all 

affected parties are aware of the 

alternatives, through proper notice of 

rulemaking, as well as how the Service 

made its choice. The rule should be 

reissued in proposed form, allowing the 

public to weigh in on the alternatives 

and on the Service’s choice. 

Response: An analysis of reasonable 

alternatives to a proposed action is a 

requirement of the NEPA process. There 

is no requirement under the APA to 

consider alternatives in a proposed rule. 

The Service proposed to codify the 

interpretation set forth in Solicitor’s 

Opinion M–37050 and presented 

reasonable alternatives to that proposal 

in the associated draft EIS. The public 

comment period for the scoping notice 

and the draft EIS provided opportunities 

to weigh in on the alternatives to the 

proposed action. Both the M-Opinion 

and the preamble to the proposed rule 

provide detailed background and 

analysis that explain why the Solicitor 

concluded the MBTA does not prohibit 

incidental take and why the Service 

adopted that analysis and conclusion. 

The Service has provided a Regulatory 

Impact Analysis with the proposed rule, 

which provides a cost-benefit analysis 

of the rule along with reasonable 

alternatives, to comply with Executive 

Order 12866 and certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities to comply with the Regulatory 

Flexibility Act. 

Comment: A commenter stated that 

the proposed rule will result in a 

dangerous slippery slope, making intent 

difficult to prove because if there is no 

regulation for ‘‘unintentional’’ take, then 

anything could be classified as 

‘‘incidental take.’’ The proposed rule 

change puts the burden of proof on the 

Service of determining ‘‘intent,’’ which 

can be difficult or impossible to truly 

establish. Without retaining the legal 

responsibility by individuals and/or 

companies under the existing MBTA, 

there would be far less money available 

for mitigation of preventable 

environmental damage. 

Response: The proposed rule does not 

alter the burden of proof for intentional 

take under the MBTA. Over 100 years of 

case law and amendments to the statute 

have provided extensive guidance on 

the requirements to prove intent under 

the criminal provisions of the MBTA. 

This rulemaking will not disturb that 

case law or change our enforcement of 

the statute in that context. An analysis 

of the amount of funding available for 

mitigation of environmental damage, 

including incidental take of migratory 

birds, would be largely speculative at 

this point and not directly relevant to 

this rulemaking. To the extent there are 

economic impacts associated with this 

rulemaking or the alternatives 

considered in the associated NEPA 

analysis, those are described in the EIS 

and the regulatory impact analysis 

conducted to comply with Executive 

Orders 12866, 13563, and 13771. 

Comment: Some commenters noted 

that the application of the MBTA as 

restricting anything other than 

intentional take of covered species 

offends canons of American criminal 

law and is perhaps most absurd when 

viewed in this light. The U.S. Supreme 

Court has held: ‘‘Under a long line of 

our decisions, the tie must go to the 

defendant. The rule of lenity requires 

ambiguous criminal laws to be 


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interpreted in favor of the defendants 

subjected to them. . . . This venerable 

rule not only vindicates the 

fundamental principle that no citizen 

should be held accountable for a 

violation of a statute whose commands 

are uncertain, or subjected to 

punishment that is not clearly 

prescribed. It also places the weight of 

inertia upon the party that can best 

induce Congress to speak more clearly 

and keeps courts from making criminal 

law in Congress’s stead.’’ United States 

v. Santos, 553 U.S. 507, 514 (2008) 

(internal citations omitted). 

Response: We agree with this 

comment. 

Comment: Some commenters noted 

that the prosecution of individual 

citizens or companies for the incidental 

take of migratory birds does not benefit 

conservation efforts. A few commenters 

noted that their industry sectors will 

continue to work with Federal and State 

agencies and help them fulfill their 

mission to conserve, protect, and 

enhance wildlife and their habitat for 

the continuing benefit of all people. The 

commenters noted that despite efforts to 

prevent incidental take, such take is not 

one-hundred-percent preventable and 

criminalizing incidental take does not 

advance conservation efforts. Removing 

the threat of unwarranted legal attacks 

under the MBTA will allow businesses 

to continue operating under good faith 

efforts to limit impacts to migratory 

birds. 

Response: We appreciate that the 

commenters have engaged with the 

Service to advance conservation efforts 

that protect and enhance wildlife, 

including migratory birds, and that 

commenters advocate continued use of 

good faith efforts to limit impacts to 

migratory birds. 

Comment: One commenter noted that 

the proposed codification differentiates 

between wanton acts of destruction and 

criminal negligence, on the one hand, 

and the accidental or incidental take of 

a protected bird, however regrettable, on 

the other. U.S. law has long 

differentiated between harm caused by 

intent and harm caused by accident. 

The proposed rulemaking extends that 

practice to the MBTA. 

Response: We agree with the 

commenter that this rulemaking will 

continue to authorize criminal 

enforcement of intentional take while 

codifying that the MBTA does not 

prohibit incidental take. 

Comment: One industry commenter 

claimed that an extreme application of 

the MBTA imposes criminal liability 

any time a migratory bird is killed 

incidental to another activity and would 

create an absurd and likely disastrous 

scenario in which the majority of 

Americans could be considered 

potential criminals. The commenter 

notes that enforcement of the MBTA 

under such an extreme interpretation 

would have devastating consequences 

for American businesses and 

communities, particularly in rural 

communities in close proximity to 

migratory bird habitat. As described in 

the proposed rule, millions of birds are 

killed every year from accidents such as 

collisions with glass windows, power 

lines, and vehicles. These are 

unfortunately realities of modern life 

and beyond the scope of the MBTA. The 

U.S. Supreme Court has ruled that the 

interpretation of a statute that would 

lead to absurd results must be avoided 

in favor of other interpretations 

‘‘consistent with the legislative 

purpose.’’ 

Response: We agree with the 

commenter that interpreting the MBTA 

to prohibit incidental take could 

potentially lead to some of the cited 

absurd results. We refer the commenter 

to the analysis of the economic impacts 

of interpreting the scope of the statute 

to prohibit incidental take in the EIS 

and regulatory impact analysis 

conducted to comply with Executive 

Orders 12866, 13563, and 13771. 

Comment: One commenter stated that 

as a result of the Federal Circuit Court 

split and dueling Solicitor’s opinions, 

and without MBTA regulations 

addressing what activities are 

prohibited under the MBTA, the same 

activities that are entirely lawful in 

some parts of the country could give rise 

to strict criminal liability in parts of the 

country in which Federal Circuit Courts 

have held that unintentional take is 

prohibited under the MBTA. The 

commenter noted that the MBTA should 

be given a uniform interpretation across 

all regions of the country and is 

appreciative that the Service is engaging 

in a rulemaking process to achieve this 

result. 

Response: We agree with this 

comment. 

Comment: One commenter questioned 

the evidence suggesting that this rule 

change is warranted. The commenter 

questions what economic progress has 

been halted due to the protections of the 

MBTA and how this action is in the best 

interest of the American people. 

Response: We refer the commenter to 

the EIS and the regulatory impact 

analysis for our conclusions regarding 

the environmental and economic 

impacts of this rulemaking and its 

reasonable alternatives on migratory 

birds and regulated entities. 

Comment: A commenter stated that 

the Service has done little to 

demonstrate how this proposed rule 

actually benefits birds, instead focusing 

almost exclusively on economic 

interests of previously regulated 

industries. The commenter notes there 

is little mention in either notice of 

biological impacts or assessment of bird 

species protected by the Act. Interior 

and the Service fail to recognize that the 

MBTA’s singular statutory purpose is to 

protect and conserve migratory birds. 

The U.S. Supreme Court described this 

purpose as ‘‘a national interest of very 

nearly the first magnitude,’’ and the 

origin of the statute to implement the 

international treaties signed for 

migratory bird conservation must not be 

overlooked. This environmental review 

should focus on the biological impacts 

and benefits to birds of the proposed 

rule and any authorization program that 

the Service is considering. It is 

misleading and simply false to suggest, 

as Interior does, that any regulation of 

incidental take under the MBTA is 

unduly burdensome. 

Response: We constructed the 

purpose and need in the draft EIS to 

reflect our proposal to codify the correct 

interpretation of the MBTA as it relates 

to incidental take. Developing an 

authorization program was not within 

the scope of our proposal. We disagree 

with the commenter’s interpretation of 

the MBTA and our nondiscretionary 

and discretionary duties to implement 

the MBTA. We refer the commenter to 

the EIS for analysis and discussion of 

the environmental impacts of the 

proposal and reasonable alternatives. 

The Service will continue to ensure that 

migratory birds are protected from 

direct take. We will also continue to 

work with other Federal agencies and 

stakeholders to promote conservation 

measures that reduce incidental take 

and protect migratory bird habitat, 

consistent with the Federal statutes we 

implement to manage, conserve, and 

protect migratory birds and other 

wildlife. 

Comment: As a policy matter, the 

Service has not justified its departure 

from its prior interpretation of the Act, 

which was effective in protecting 

migratory birds without undue 

regulatory burden. 

Response: We respectfully disagree 

that the Service has not justified its 

current interpretation of the MBTA. M– 

37050 and the preamble to the proposed 

rule explained the basis for the 

interpretation of the MBTA we are 

codifying in this rulemaking in great 

detail referencing the language of the 

statute itself, the international 

Conventions underlying the MBTA, its 

legislative history, and subsequent case 

law. As part of our duty as the agency 


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responsible for implementing the 

MBTA, we are obliged to present to the 

public our interpretation of any 

ambiguous language that affects public 

rights or obligations. 

Comment: One commenter noted that 

the Service should not rely on other 

statutes or regulations to absolve itself 

from addressing incidental take. The 

commenter noted that the current 

administration is relaxing a number of 

regulations such as the Clean Water Act 

and the Endangered Species Act. 

Collectively, the change in 

interpretation of these foundational 

laws and rules will undoubtedly remove 

any motivation for regulated entities to 

mitigate the harm caused by their 

actions on birds and their eggs and will 

increase incidental take. 

Response: A wide array of statutory 

mandates provide protections to 

wildlife, including migratory birds. In 

this rulemaking, the Service describes 

these various protections, but does not 

rely on them to address incidental take 

of migratory birds in the absence of 

MBTA protection. Our interpretation of 

the MBTA is primarily governed by the 

language of the statute, its legislative 

history, and subsequent case law. 

Whether other statutes provide 

protection to migratory birds is not 

directly relevant to codifying our 

current interpretation. The Service also 

notes that the motivation to implement 

conservation measures to mitigate harm 

to migratory birds is not simply driven 

by the threat of enforcement. Many 

other factors are often at play for 

companies engaged in actions that may 

affect migratory birds, including public 

perception, green business credentials, 

economic factors, State law, and 

pressure from investors and lenders. 

Comment: One commenter requested 

that the Service remember their treaty 

obligation to protect birds that are 

shared with other countries that as 

independent nations could not ensure 

the protection of species that migrate 

across borders. 

Response: We acknowledge this 

comment and submit that we will 

continue to implement relevant 

domestic laws and regulations and 

provide technical advice and assistance 

to our treaty partners and encourage 

continued conservation and protection 

of migratory birds to the extent 

authorized by their domestic laws. 

Comment: Multiple commenters 

stated that the proposed rule is likely to 

facilitate a substantial increase in the 

number of migratory birds killed, in 

direct conflict with the amended treaty 

with Canada. The commenters noted 

that the proposed rule change is 

extremely limited in scope as it fails to 

address the evolution of threats to 

migratory birds or to ensure the 

sustainability of healthy bird 

populations. While unregulated 

harvesting is no longer a primary threat 

to migratory birds, declines in bird 

populations continue to remain a 

serious international issue. The 

commenters noted that international 

partners would suffer the loss of the 

many benefits of migratory birds as the 

United States rolls back its protective 

policies. 

Response: We disagree that this 

rulemaking will result in a substantial 

increase in the number of migratory 

birds killed. The EIS notes that it may 

result in a measurable increase, but we 

do not expect it to be substantial. In 

other words, there may be a measurable 

difference but we do not expect it to 

substantially affect the existing 

trajectory of the number of migratory 

birds killed. It is important to note that 

the MBTA should not be relied upon by 

itself to reduce large-scale impacts on 

migratory bird populations, whether or 

not it is interpreted to prohibit 

incidental take. It is simply one tool in 

what must be a multifaceted approach. 

Voluntary efforts and development of 

industry best practices are an 

indispensable part of this approach, 

particularly given that the substantial 

decreases in migratory bird populations 

over the last 50 years have occurred 

despite the prior agency practice of 

enforcing the MBTA with respect to 

incidental take. We will continue to 

work with our domestic and 

international partners, the regulated 

community, and the public at large to 

uphold our commitment to ensure the 

long-term conservation of migratory 

birds under the migratory bird 

Conventions. 

Comment: The proposed rule ignores 

article IV of the amended Canada treaty 

that the United States is to ‘‘seek means 

to prevent damage to such birds and 

their environments, including damage 

resulting from pollution.’’ Under the 

new interpretation of the MBTA, 

pollution is no longer a considered 

factor as pollution is almost never a 

direct, purposeful act. This failure to 

address threats beyond harvesting 

undermines the United States’ 

commitment under the amended 

Canada treaty to ensure the long-term 

conservation of shared migratory bird 

species. 

Response: Our commitment to our 

treaty partners to prevent and mitigate 

damage to migratory birds from 

pollution is implemented by several 

domestic laws. For example, pursuant to 

the Comprehensive Environmental 

Response Compensation and Liability 

Act (CERCLA), the Oil Pollution Act, 

and the Clean Water Act, the 

Department is authorized to assess 

injury to natural resources caused by 

releases of hazardous substances and 

discharges of oil to compensate the 

public for lost natural resources and 

their services. The Department’s 

assessment of natural resource injuries 

under the Natural Resource Damage 

Assessment Program includes any 

injury to migratory birds, which in 

many cases could otherwise be 

classified as incidental take. We will 

continue to implement these programs 

consistent with our treaty obligations. 

Comment: One commenter stated that 

the proposed rule is not consistent with 

section 2(a) of the Migratory Bird Treaty 

Act, which states that ‘‘it shall be 

unlawful at any time, by any means or 

in any manner, to pursue, hunt, take, 

capture, kill . . . any migratory bird.’’ 

The key words regarding the prohibition 

of incidental take are ‘‘at any time, by 

any means or in any manner.’’ The 

words ‘‘in any manner’’ means 

regardless of whether it is purposeful or 

not. 

Response: We disagree with the 

commenter on the import and context of 

the language ‘‘at any time, by any means 

or in any manner’’ in section 2 of the 

MBTA. The preamble to this regulation 

explains the correct context for that 

language and its relevance to whether 

the MBTA prohibits incidental take. 

Comment: Multiple commenters 

suggested that reinterpretation of the 

MBTA will cause tension with Canada, 

whose migratory bird populations will 

also be affected by rules that are more 

lenient. 

Response: The Service has met with 

its counterparts in Canada regarding the 

proposed rule. The Government of 

Canada submitted comments on the 

draft EIS associated with this 

rulemaking. We summarized and 

addressed substantive comments 

received from the Government of 

Canada in Appendix C of the final EIS. 

Any impacts to migratory birds that we 

share with Canada are also discussed in 

the EIS. 

Additionally, after publication of the 

final EIS, the Government of Canada 

submitted a further comment expressing 

concern regarding this rule. Regarding 

the comments from the Government of 

Canada, the Service identified the 

impacts to migratory birds to the extent 

it was able in the final EIS, based on the 

information available. 

Comment: Multiple comments stated 

that this proposed major shift in policy 

and regulation in the MBTA will have 

international implications. The 

commenters note that migratory birds 


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are a shared hemispheric resource, for 

which we are only custodians and 

stewards while they are within the 

borders of the United States. Any 

attempt to permanently weaken the 

MBTA, which will perpetuate, and 

almost certainly increase, the level of 

injury and death of migratory birds, 

needs concurrence by Canada, Mexico, 

Japan, and Russia if our treaty 

obligations are to have any true 

meaning. The Service has not addressed 

this international aspect in its planning 

and has not worked with the State 

Department on the issue. With this 

proposed change, the Service is making 

a unilateral change that will later be 

deemed an abrogation of our 

international agreements with these 

other sovereign nations. 

Response: The MBTA, along with 

several other statutes, implements the 

migratory bird Conventions. The parties 

to those Conventions may meet to 

amend and update the provisions of the 

Conventions, but enactment, 

amendment, and implementation of 

domestic laws that implement those 

Conventions do not require concurrence 

by the other parties. We have undergone 

interagency review of this rulemaking at 

the proposed and final stages facilitated 

by the Office of Management and 

Budget, which included input from the 

State Department. We will not speculate 

on the views of our Convention partners 

beyond the public comments reflected 

here. 

Comment: One commenter stated that 

this rule represents a fundamental 

abdication of the Service’s mission to 

protect native wild birds. There is 

simply no question that the Service’s 

history of interpretation (until 2017) of 

the MBTA as applying to incidental take 

has been the bulwark protecting tens of 

millions of birds from unnecessary 

deaths. 

Response: We do not agree with the 

commenter’s assessment of this 

rulemaking or that available data 

supports the commenter’s analysis of 

the Service’s prior interpretation. 

Comment: One commenter 

recommended that the Service consider 

to what extent the proposed rule may 

increase regulatory uncertainty for 

industrial entities and other 

stakeholders. This administration’s 

sudden policy change has thrown 

decades of practice and policy into 

upheaval for all entities, including 

industry, Federal, State, local, and 

international agencies, conservation 

groups, and more. Legal observers have 

also suggested that this policy may not 

be permanent, and one analysis noted 

that entities ‘‘would be wise to keep a 

long-term perspective of MBTA-related 

risk.’’ The commenters noted that rather 

than providing certainty into the 

enforcement of the law, the M-Opinion 

and this rulemaking may have increased 

uncertainty about what will be expected 

for industries, especially as many 

development decisions need to be made 

considering many years and decades 

into the future. Additionally, the MOpinion and the proposed rule may 

inject more uncertainty about what is 

considered ‘‘take’’ compared to the 

previous decades of enforcement. For 

example, the removal of active nests 

when the purpose of the underlying 

activity is not to harm birds but related 

to another activity, such as construction 

or cleaning, has created confusion and 

a major loophole. Documents released 

under the Freedom of Information Act 

reveal numerous questions from entities 

since publication of the M-Opinion 

about what constitutes prohibited take. 

This legal uncertainty also leads to 

scientific uncertainty about future 

impacts on birds. This additional 

uncertainty should be considered by the 

Service going forward. 

Response: We note that a primary 

purpose of codifying the interpretation 

presented in M–37050 is to provide 

more certainty and permanence 

regarding the Department’s position on 

the scope of the MBTA as it relates to 

incidental take. Adopting the prior 

interpretation through regulation would 

not provide any more long-term 

certainty in this regard. Codification in 

the Code of Federal Regulations 

provides the maximum certainty and 

permanence possible absent new 

legislation, over which we have no 

control. To a certain extent, some degree 

of short-term uncertainty is to be 

expected when a change in agency 

practice occurs. We continue to provide 

technical advice when requested 

regarding application of the MBTA in 

specific situations. The example 

provided by the commenter regarding 

active nest removal is a clear case of 

incidental take that is not prohibited by 

the MBTA, although it may violate other 

Federal, State, Tribal, or local laws and 

regulations. If the purpose of the 

referenced activity were specifically to 

remove active bird nests, then that 

activity would still be a violation of the 

MBTA and a permit would be required 

before any removal could lawfully 

proceed. We will also continue to 

monitor bird populations in partnership 

with State wildlife agencies and other 

stakeholders. 

Comment: The proposed rule would 

harm States by depriving them of the 

MBTA’s protections for migratory birds 

that nest in, winter in, or pass through 

their territories. The States own and 

hold migratory birds in trust for their 

citizenry. Moreover, the States and their 

citizens benefit from the role that 

migratory birds play in maintaining 

ecological balance and the valuable 

ecological services that they provide. 

The critically important ecological 

services these species provide include 

insect and rodent control, pollination, 

and seed dispersal. As the U.S. Supreme 

Court recognized 100 years ago, Statelevel protections are insufficient to 

protect transient species that travel 

outside of a State’s territorial bounds. In 

a landmark decision upholding the 

constitutionality of the MBTA, Justice 

Holmes wrote that migratory birds, 

which ‘‘yesterday had not arrived, 

tomorrow may be in another State and 

in a week a thousand miles away’’ can 

be ‘‘protected only by national action.’’ 

Missouri v. Holland, 252 U.S. 416, 434– 

35 (1920). If left to the States, the result 

would be a patchwork of legal 

approaches, reducing consistency 

nationwide. Individual States therefore 

rely on Federal law (and the 

international treaties implemented by 

Federal law) to protect their own bird 

populations when individual birds 

migrate beyond their boundaries. 

Interior’s elimination of longstanding 

Federal protection harms State interests. 

Response: The intent of this 

rulemaking is not to harm States, but to 

interpret the MBTA in the manner 

Congress intended when it drafted and 

enacted the statute. States remain free to 

prohibit, manage, or regulate incidental 

take of migratory birds as they see fit 

under State law, and nothing in this 

regulation or the MBTA prevents them 

from doing so. The EIS associated with 

this rulemaking analyzes the broader 

effects of codifying our interpretation. 

Though we conclude that this rule will 

have some negative effects on 

populations of some species, we do not 

find that those effects will be 

substantial. 

Comment: A commenter noted that 

the proposed rule fails to provide 

adequate justification under Executive 

Orders 12866 and 13563 with regard to 

providing flexible approaches consistent 

with scientific integrity and protecting 

the environment. Simply stating that the 

Service has used the best available 

science is not sufficient. The commenter 

recommends the Service review its own 

web pages and the scientific literature to 

show that incidental take of birds is a 

significant problem. Adopting this 

regulation ignores that science and fails 

to protect the environment. It also fails 

the intent of the treaties. Providing a 

regulatory approach such as a 

permitting program or a program based 

upon a gross negligence approach 


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would fulfill the Treaty obligations 

while also satisfying the intent of E.O.s 

12866 and 13563. The commenter called 

for the Office of Information and 

Regulatory Affairs to review the 

justification for consistency with these 

Executive Orders. 

Response: The regulatory impact 

analysis developed for the proposed 

rule documents compliance with 

Executive Orders 12866 and 13563 and 

was reviewed and approved by OMB’s 

Office of Information and Regulatory 

Affairs. We acknowledge that incidental 

take of migratory birds has a negative 

impact on many migratory bird 

populations and have assessed any 

incremental impact caused by this 

rulemaking and its reasonable 

alternatives in the EIS. We disagree that 

this rulemaking will have a substantial 

impact on migratory bird populations 

when compared to prior agency 

practice. 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order (E.O.) 12866 provides 

that the Office of Information and 

Regulatory Affairs (OIRA) in the Office 

of Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this rule is significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Codifying our interpretation that the 

MBTA does not prohibit incidental take 

into Federal regulations would provide 

the public, businesses, government 

agencies, and other entities legal clarity 

and certainty regarding what is and is 

not prohibited under the MBTA. It is 

anticipated that some entities that 

currently employ mitigation measures to 

reduce or eliminate incidental migratory 

bird take would reduce or curtail these 

activities given the legal certainty 

provided by this regulation. Others may 

continue to employ these measures 

voluntarily for various reasons or to 

comply with other Federal, State, and 

local laws and regulations. The Service 

has conducted a cost-benefit analysis 

which can be viewed online at https:// 

beta.regulations.gov/docket/FWS-HQMB-2018-0090/document and https:// 

www.fws.gov/regulations/mbta/. 

Regulatory Flexibility Act and Small 

Business Regulatory Enforcement 

Fairness Act 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996 (Pub. L. 

104–121)), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effects of the rule on small businesses, 

small organizations, and small 

government jurisdictions. However, in 

lieu of an initial or final regulatory 

flexibility analysis (IRFA or FRFA) the 

head of an agency may certify on a 

factual basis that the rule would not 

have a significant economic impact on 

a substantial number of small entities. 

SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that a rule 

would not have a significant economic 

impact on a substantial number of small 

entities. Thus, for an initial/final 

regulatory flexibility analysis to be 

required, impacts must exceed a 

threshold for ‘‘significant impact’’ and a 

threshold for a ‘‘substantial number of 

small entities.’’ See 5 U.S.C. 605(b). This 

analysis first estimates the number of 

businesses impacted and then estimates 

the economic impact of the rule. 

Table 1 lists the industry sectors 

likely impacted by the rule. These are 

the industries that typically incidentally 

take substantial numbers of birds and 

that the Service has worked with to 

reduce those effects. In some cases, 

these industries have been subject to 

enforcement actions and prosecutions 

under the MBTA prior to the issuance 

of M–37050. The vast majority of 

entities in these sectors are small 

entities, based on the U.S. Small 

Business Administration (SBA) small 

business size standards. Not all small 

businesses will be impacted by this rule. 

Only those businesses choosing to 

reduce best management practices will 

accrue benefits. 

TABLE 1—DISTRIBUTION OF BUSINESSES WITHIN AFFECTED INDUSTRIES

NAICS industry description NAICS code Number of 

businesses 

Small 

business 

size 

standard 

(employees) 

Number 

of small 

businesses 

Finfish Fishing .................................................................................................. 114111 1,210 20 (a) 1,185 

Crude Petroleum and Natural Gas Extraction ................................................. 211111 6,878 1,250 6,868 

Drilling Oil and Gas Wells ................................................................................ 213111 2,097 1,000 2,092 

Solar Electric Power Generation ..................................................................... 221114 153 250 153 

Wind Electric Power Generation ...................................................................... 221115 264 250 263 

Electric Bulk Power Transmission ................................................................... 221121 261 500 214 

Electric Power Distribution ............................................................................... 221122 7,557 1,000 7,520 

Wireless Telecommunications Carriers (except Satellite) ............................... 517312 15,845 1,500 15,831 

Source: U.S. Census Bureau, 2012 County Business Patterns. 

a Note: The Small Business Administration size standard for finfish fishing is $22 million. Neither Economic Census, Agriculture Census, nor 

the National Marine Fisheries Service collect business data by revenue size for the finfish industry. Therefore, we employ other data to approximate the number of small businesses. Source: U.S. Census Bureau, 2017 Economic Annual Survey. 

Since the Service does not have a 

permitting system authorizing 

incidental take of migratory birds, the 

Service does not have specific 

information regarding how many 

businesses in each sector implement 


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measures to reduce incidental take of 

birds. Not all businesses in each sector 

incidentally take birds. In addition, a 

variety of factors would influence 

whether, under the previous 

interpretation of the MBTA, businesses 

would implement such measures. It is 

also unknown how many businesses 

continued or reduced practices to 

reduce the incidental take of birds since 

publication of the Solicitor’s MOpinion. We did not receive any 

information on that issue during the 

public comment period for this rule. 

This rule is deregulatory in nature 

and is thus likely to have a positive 

economic impact on all regulated 

entities, and many of these entities 

likely qualify as small businesses under 

the Small Business Administration’s 

threshold standards (see Table 1). By 

codifying the Service’s interpretation, 

first outlined in Solicitor’s Opinion, M– 

37050, this rulemaking would remove 

legal uncertainty for any individual, 

government entity, or business entity 

that undertakes any activity that may 

kill or take migratory birds incidental to 

otherwise lawful activity. Such small 

entities would benefit from this rule 

because it would remove uncertainty 

about the potential impacts of proposed 

projects. Therefore, these entities will 

have better information for planning 

projects and achieving goals. 

However, the economic impact of the 

rule on small entities is likely not 

significant. As shown in Table 6, the 

costs of actions businesses typically 

implement to reduce effects on birds are 

small compared to the economic output 

of business, including small businesses, 

in these sectors. In addition, many 

businesses will continue to take actions 

to reduce effects on birds because these 

actions are best management practices 

for their industry or are required by 

other Federal or State regulations, there 

is a public desire to continue them, or 

the businesses simply desire to reduce 

their effects on migratory birds. For 

example, 13 States have oil pit covering 

requirements. 

This analysis examines the potential 

effect of the rule on small businesses in 

selected industries. Following this 

discussion is a summary of mitigation 

measures and costs (Table 6) and a 

summary of the economic effects of the 

rule on the business sectors identified in 

Table 1 (Table 7). 

Finfish (NAICS 114111) 

Although longline fishing is regulated 

under the Magnuson–Stevens Act, 

seabirds are not afforded protection as 

they do not fall under that statute’s 

definition of bycatch. See 16 U.S.C. 

1802. Therefore, it is probable these 

finfish businesses may reduce bird 

mitigation measures such as changes in 

design of longline fishing hooks, change 

in offal management practices, and 

flagging or streamers on fishing lines. 

Table 6 shows example costs of some of 

the mitigation measures. 

Data are unavailable regarding fleet 

size and how many measures are 

employed on each vessel. Because data 

are unavailable about the distribution of 

possible range of measures and costs, 

we do not extrapolate cost data to small 

businesses. Table 2 shows the 

distribution of businesses by 

employment size and average annual 

payroll. 

TABLE 2—FINFISH NAICS 14111: EMPLOYMENT SIZES AND PAYROLL 1

Employment size Number of 

businesses 

Average 

annual payroll 

per business 2

Less than 5 employees ........................................................................................................................................... 1,134 $62,000 

5 to 9 employees ..................................................................................................................................................... 45 372,000 

10 to 19 employees ................................................................................................................................................. 23 639,000 

20 to 49 employees ................................................................................................................................................. 20 2,837,000 

50 to 99 employees ................................................................................................................................................. 5 4,333,000 

100 to 249 employees ............................................................................................................................................. 4 13,941,000 

1 2017 Economic Census. 

2Sales data are not available by employment size. 

Crude Petroleum and Natural Gas 

Extraction (NAICS 211111) 

The degree to which these small 

businesses may be impacted by the rule 

is variable and is dependent on location 

and choice. Thirteen States (Illinois, 

Arkansas, Oklahoma, Texas, North 

Dakota, South Dakota, Nebraska, 

Montana, Wyoming, Colorado, Utah, 

New Mexico, and California) have 

regulations governing the treatment of 

oil pits such as netting or screening of 

reserve pits, including measures 

beneficial to birds. The remaining States 

represent approximately 24 percent of 

businesses in the crude petroleum and 

natural gas extraction industry. Since 

the Small Business Size Standard is less 

than 1,250 employees, we assume all 

businesses are small. Table 3 shows the 

distribution of businesses by 

employment size and sales. 

Businesses located in the States that 

do not have existing regulations would 

have the option to reduce or eliminate 

best management practices without 

potential litigation. As Table 6 shows, 

oil pit nets range in cost from about 

$131,000 to $174,000 per acre, where 

most netted pits are about 1⁄4 to 1⁄2 acre. 

The distribution and number of oil pits 

across the United States or across the 

remaining States is unknown. 

Furthermore, the average number of oil 

pits per business is unknown. An 

estimate for the number of pits is 

unknown because some are ephemeral, 

present only while a well is being 

drilled, and others last for the life of the 

well. The replacement timeline for 

netting is also variable because 

hurricanes, strong winds, and strong 

sun all have deleterious impacts on 

nets. Because data are unavailable about 

the distribution or possible range of oil 

pits per business, we do not extrapolate 

netting cost data to small businesses. 

TABLE 3—CRUDE PETROLEUM AND NATURAL GAS EXTRACTION NAICS 21111: EMPLOYMENT SIZES AND SALES 1

Employment size Number of 

businesses 

Number of 

impacted 

businesses 

(37 states) 

Average 

sales per 

business 

Less than 5 employees ............................................................................................................... 3,957 966 $1,473,000 


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TABLE 3—CRUDE PETROLEUM AND NATURAL GAS EXTRACTION NAICS 21111: EMPLOYMENT SIZES AND SALES 1— 

Continued 

Employment size Number of 

businesses 

Number of 

impacted 

businesses 

(37 states) 

Average 

sales per 

business 

5 to 9 employees ......................................................................................................................... 723 177 9,291,000 

10 to 19 employees ..................................................................................................................... 632 154 22,386,000 

20 to 49 employees ..................................................................................................................... 552 135 72,510,000 

50 to 99 employees ..................................................................................................................... 203 50 180,065,000 

100 to 249 employees ................................................................................................................. 156 38 344,694,000 

250 employees or more ............................................................................................................... 84 21 839,456,000 

1 2017 Economic Census. 

Drilling Oil and Gas Wells (NAICS 

213111) 

The degree to which these small 

business in NAICS 213111 may be 

impacted by the rule is variable and is 

dependent on location and choice. 

Thirteen States (Illinois, Arkansas, 

Oklahoma, Texas, North Dakota, South 

Dakota, Nebraska, Montana, Wyoming, 

Colorado, Utah, New Mexico, and 

California) have regulations governing 

the treatment of oil pits such as netting 

or screening of reserve pits, including 

measures beneficial to birds. The 

remaining States represent 

approximately 32 percent of businesses 

in the crude petroleum and natural gas 

extraction industry. Since the Small 

Business Size Standard is less than 

1,000 employees, we assume all 

businesses are small. Table 4 shows the 

distribution of businesses by 

employment size and sales. 

Businesses located in the States that 

do not have existing regulations would 

have the option to reduce or eliminate 

best management practices without 

potential litigation. As Table 6 shows, 

oil pit nets range in cost from about 

$131,000 to $174,000 per acre, where 

most netted pits are about 1⁄4 to 1⁄2 acre. 

The distribution and number of oil pits 

across the United States or across the 

remaining States is unknown. 

Furthermore, the average number of oil 

pits per business is unknown. An 

estimate for the number of pits is 

unknown because some are ephemeral, 

present only while a well is being 

drilled, and others last for the life of the 

well. The replacement timeline for 

netting is also variable because 

hurricanes, strong winds, and strong 

sun all have deleterious impacts on 

nets. Because data are unavailable about 

the distribution or possible range of oil 

pits per business, we do not extrapolate 

netting cost data to small businesses. 

TABLE 4—DRILLING OIL AND GAS WELLS NAICS 213111: EMPLOYMENT SIZES AND SALES 1

Employment size Number of 

businesses 

Number of 

impacted 

businesses 

(37 states) 

Average sales 

per business 

Less than 5 employees ............................................................................................................... 1,217 393 $312,000 

5 to 9 employees ......................................................................................................................... 289 93 1,674,000 

10 to 19 employees ..................................................................................................................... 299 97 3,300,000 

20 to 49 employees ..................................................................................................................... 330 107 11,791,000 

50 to 99 employees ..................................................................................................................... 150 48 17,454,000 

100 to 249 employees ................................................................................................................. 85 27 38,874,000 

250 employees or more ............................................................................................................... 52 17 140,769,000 

1Economic Census 2017. 

Solar Electric Power Generation (NAICS 

221114) 

The degree to which these small 

businesses may be impacted by the rule 

is variable and is dependent on location 

and choice. Some States may have 

regulations that require monitoring bird 

use and mortality at facilities; however, 

the number of States with regulations is 

unknown. Table 5 shows the 

distribution of businesses by 

employment size and sales. 

Businesses located in States that do 

not have existing regulations would 

have the option to reduce or eliminate 

best management practices without 

potential litigation. As Table 6 shows, 

the cost of pre- and post-construction 

bird surveys is unknown because data 

are not publicly available and public 

comments were not received to estimate 

costs. Due to these unknowns, we do 

not extrapolate cost data to small 

businesses. 

TABLE 5—SOLAR ELECTRIC POWER GENERATION NAICS 221114: EMPLOYMENT SIZES AND SALES 1

Employment size Number of 

businesses 

Average 

sales per 

business 

Less than 5 employees ........................................................................................................................................... 91 $6,792,000 

5 to 9 employees ..................................................................................................................................................... 28 4,518,000 

10 to 19 employees ................................................................................................................................................. 21 5,806,000 

20 to 49 employees ................................................................................................................................................. 14 19,754,000 

50 to 99 employees ................................................................................................................................................. 6 64,296,000 


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TABLE 5—SOLAR ELECTRIC POWER GENERATION NAICS 221114: EMPLOYMENT SIZES AND SALES 1—Continued 

Employment size Number of 

businesses 

Average 

sales per 

business 

100 to 249 employees ............................................................................................................................................. 5 51,170,000 

1 2017 Economic Census. 

Other Industries (NAICS 221115, 

221121, 221122, and 517312) 

For the selected industries, we do not 

provide further analysis because 

minimal effects are expected on small 

businesses relative to an environmental 

baseline based on current regulations 

and voluntary conservation measures, 

due to the fact that mitigation costs are 

small relative to the cost of projects (see 

Table 7). Because there is not now, nor 

has there previously been a large-scale 

permit program for incidental take, the 

baseline does not include the potential 

costs of complying with such a program, 

including the regulatory uncertainty 

associated with permit approval, 

compliance with other statutes (e.g., the 

National Environmental Policy Act), 

and potential litigation. 

Summary 

Table 6 identifies examples of bird 

mitigation measures and their 

associated cost. Table 7 summarizes 

likely economic effects of the rule on 

the business sectors identified in Table 

1. 

TABLE 6—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1

NAICS industry Example of bird mitigation measure Estimated cost Why data are not extrapolated to entire 

industry or small businesses 

Finfish Fishing 

(NAICS 11411).

Changes in design of longline fishing 

hooks, change in offal management 

practices, flagging or streamers on fishing lines.

• Costs are per vessel per 

year.

• $1,400 for thawed blue-dyed 

bait.

• $150 for strategic offal discards.

• $4,600 for Tori line ................

• $4,000 one-time cost for underwater setting chute.

• $4,000 initial and $50 annual 

for side setting.

• No data available on fleet size. 

• No data available on how many measures are employed on each vessel. 

Crude Petroleum and 

Natural Gas Extraction NAICS 

(211111).

• Netting of oil pits and ponds ..................

• Closed wastewater systems ..................

• $130,680 to $174,240 per 

acre to net ponds.

• Most netted pits are 1⁄4 to 1⁄2

acre.

• Cost not available for wastewater systems.

• Infeasible to net pits larger than 1 acre 

due to sagging. 

• Size distribution of oil pits is unknown. 

• Average number of pits per business is 

unknown. 

• Closed wastewater systems typically 

used for reasons other than bird mitigation. 

Drilling Oil and Gas 

Wells (NAICS 

213111).

• Netting of oil pits and ponds ..................

• Closed loop drilling fluid systems ..........

• $130,680 to $174,240 per 

acre to net ponds.

• Cost not available for closed 

loop drilling fluid systems, but 

may be a net cost savings in 

arid areas with water conservation requirements.

• Infeasible to net pits larger than 1 acre 

due to sagging. 

• Size distribution of oil pits is unknown. 

• Average number of pits per business is 

unknown. 

• Closed loop drilling fluid systems typically used for reasons other than bird 

mitigation. 

• High variability in number of wells 

drilled per year (21,200 in 2019). 

Solar Electric Power 

Generation 

(NAICS 221114).

Pre- and post-construction bird surveys ... No public comments received 

to estimate costs.

New projects can vary from 100 to 5,000 

acres in size, and mortality surveys may 

not scale linearly. 

Wind Electric Power 

Generation 

(NAICS 221115).

• Pre-construction adjustment of turbine 

locations to minimize bird mortality during operations.

• Pre- and post-construction bird surveys 

• Retrofit power poles to minimize eagle 

mortality.

• Cost not available for adjustment of turbine construction 

locations.

• $100,000 to $500,000 per facility per year for pre-construction site use and postconstruction bird mortality 

surveys.

• $7,500 per power pole with 

high variability of cost.

• Annual nationwide labor cost 

to implement wind energy 

guidelines: $17.6M.

• Annual nationwide non-labor 

cost to implement wind energy guidelines: $36.9M.

• Data not available for adjustment of turbine construction locations. 

• High variability in survey costs and high 

variability in need to conduct surveys. 

• High variability in cost and need to retrofit power poles. 


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TABLE 6—BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1—Continued 

NAICS industry Example of bird mitigation measure Estimated cost Why data are not extrapolated to entire 

industry or small businesses 

Electric Bulk Power 

Transmission 

(NAICS 221121).

Retrofit power poles to minimize eagle 

mortality.

$7,500 per power pole with 

high variability of cost.

High variability in cost and need to retrofit 

power poles. 

Electric Power Distribution (NAICS 

221122).

Retrofit power poles to minimize eagle 

mortality.

$7,500 per power pole with 

high variability of cost.

High variability in cost and need to retrofit 

power poles. 

Wireless Telecommunications 

Carriers (except 

Satellite) (NAICS 

517312).

• Extinguish non-flashing lights on towers 

taller than 350′.

• Retrofit towers shorter than 350′ with 

LED flashing lights.

• Industry saves hundreds of 

dollars per year in electricity 

costs by extinguishing lights.

• Retrofitting with LED lights 

requires initial cost outlay, 

which is recouped over time 

due to lower energy costs 

and reduced maintenance.

Data not available for number of operators 

who have implemented these practices. 

1Sources: FWS personnel, National Oceanic and Atmospheric Administration Revised Seabird Regulations Amendment, eccnetting.com, 

statista.com, aerion.com, FWS Wind Energy Guidelines, FWS Public Records Act data, FWS Eagle Conservation Plan Guidance. 

TABLE 7—SUMMARY OF ECONOMIC EFFECTS ON SMALL BUSINESSES

NAICS 

industry description NAICS code Bird mitigation measures with no action 

Economic effects on 

small businesses Rationale 

Finfish Fishing ................ 11411 Changes in design of 

longline fishing 

hooks, change in offal 

management practices, and flagging/ 

streamers on fishing 

lines.

Likely minimal effects .... Seabirds are specifically excluded from the definition of bycatch under the Magnuson-Stevens Fishery Conservation and Management 

Act, and therefore seabirds not listed under 

the Endangered Species Act may not be covered by any mitigation measures. The impact 

of this on small entities is unknown. 

Crude Petroleum and 

Natural Gas Extraction.

211111 Using closed wastewater systems or netting of oil pits and 

ponds.

Likely minimal effects .... Thirteen States have regulations governing the 

treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. In addition, much of the industry 

is increasingly using closed systems, which 

do not pose a risk to birds. For these reasons, this rule is unlikely to affect a significant 

number of small entities. 

Drilling Oil and Gas 

Wells.

213111 Using closed wastewater systems or netting of oil pits and 

ponds.

Likely minimal effects .... Thirteen States have regulations governing the 

treatment of oil pits, such as netting or 

screening of reserve pits, including measures 

beneficial to birds. In addition, much of the industry is increasingly using closed systems, 

which do not pose a risk to birds. For these 

reasons, this rule is unlikely to affect a significant number of small entities. 

Solar Electric Power 

Generation.

221114 Monitoring bird use and 

mortality at facilities, 

limited use of deterrent systems such as 

streamers and reflectors.

Likely minimal effects .... Bird monitoring in some States may continue to 

be required under State policies. The number 

of States and the policy details are unknown. 

Wind Electric Power 

Generation.

221115 Following Wind Energy 

Guidelines, which involve conducting risk 

assessments for 

siting facilities.

Likely minimal effects .... Following the Wind Energy Guidelines has become industry best practice and would likely 

continue. In addition, the industry uses these 

guidelines to aid in reducing effects on other 

regulated species like eagles and threatened 

and endangered bats. 

Electric Bulk Power 

Transmission.

221121 Following Avian Power 

Line Interaction Committee (APLIC) guidelines.

Likely minimal effects .... Industry would likely continue to use APLIC 

guidelines to reduce outages caused by birds 

and to reduce the take of eagles, regulated 

under the Bald and Golden Eagle Protection 

Act. 

Electric Power Distribution.221122 Following Avian Power 

Line Interaction Committee (APLIC) guidelines.

Likely minimal effects .... Industry would likely continue to use APLIC 

guidelines to reduce outages caused by birds 

and to reduce the take of eagles, regulated 

under the Bald and Golden Eagle Protection 

Act. 


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1164 Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations 

TABLE 7—SUMMARY OF ECONOMIC EFFECTS ON SMALL BUSINESSES—Continued 

NAICS 

industry description NAICS code Bird mitigation measures with no action 

Economic effects on 

small businesses Rationale 

Wireless Telecommunications Carriers (except Satellite).517312 Installation of flashing 

obstruction lighting.

Likely minimal effects .... Industry will likely continue to install flashing obstruction lighting to save energy costs and to 

comply with recent Federal Aviation Administration Lighting Circular and Federal Communication Commission regulations. 

As explained above and in the 

rationale set forth in Regulatory 

Planning and Review, the economic 

effects on most or all regulated entities 

will be positive and this rule is not a 

major rule under SBREFA (5 U.S.C. 

804(2)). The head of the agency 

therefore certifies that the rule would 

not have a significant economic impact 

on a substantial number of small 

entities. 

Executive Order 13771—Reducing 

Regulation and Controlling Regulatory 

Costs 

This rule is an E.O. 13771 (82 FR 

9339, February 3, 2017) deregulatory 

action. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we have determined the following: 

a. This rule would not ‘‘significantly 

or uniquely’’ affect small government 

activities. A small government agency 

plan is not required. 

b. This rule would not produce a 

Federal mandate on local or State 

government or private entities. 

Therefore, this action is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. 

Takings 

In accordance with E.O. 12630, this 

rule does not contain a provision for 

taking of private property, and would 

not have significant takings 

implications. A takings implication 

assessment is not required. 

Federalism 

This rule will not create substantial 

direct effects or compliance costs on 

State and local governments or preempt 

State law. Some States may choose to 

enact changes in their management 

efforts and regulatory processes and 

staffing to develop and or implement 

State laws governing birds, likely 

increasing costs for States. These efforts 

would require increased expenditure of 

funds, but would not constitute direct 

compliance costs. Therefore, this rule 

would not have sufficient federalism 

effects to warrant preparation of a 

federalism summary impact statement 

under E.O. 13132. 

Civil Justice Reform 

In accordance with E.O. 12988, we 

determined that this rule will not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor, and 

you are not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act 

We evaluated this regulation in 

accordance with the criteria of the 

National Environmental Policy Act 

(NEPA), the Department of the Interior 

regulations on Implementation of the 

National Environmental Policy Act (43 

CFR 46.10–46.450), and the Department 

of the Interior Manual (516 DM 8). We 

completed an environmental impact 

statement (EIS) analyzing the potential 

impacts of a reasonable range of 

alternatives for this action. Based on the 

analysis contained within the final EIS, 

the Service selected Alternative A— 

Promulgate regulations that define the 

scope of the MBTA to exclude 

incidental take. Under Alternative A, 

the Service hereby promulgates a 

regulation that defines the scope of the 

MBTA take prohibitions to include only 

actions directed at migratory birds. This 

regulatory change is not expected to 

change current implementation or 

enforcement of the MBTA. The Service 

selected this alternative because it 

clarifies our interpretation of the MBTA 

and reduces the regulatory burden on 

the public without significantly 

affecting the conservation of migratory 

bird species protected by the MBTA. 

The Service’s selection of this 

alternative and the basis for that 

selection are provided in the Record of 

Decision signed by the Director of the 

U.S. Fish and Wildlife Service. 

Compliance with Endangered Species 

Act Requirements 

Section 7 of the Endangered Species 

Act of 1973, as amended (ESA; 16 

U.S.C. 1531–44), requires that ‘‘The 

Secretary [of the Interior] shall review 

other programs administered by him 

and utilize such programs in 

furtherance of the purposes of this Act.’’ 

16 U.S.C. 1536(a)(1). It further states 

‘‘[e]ach Federal agency shall, in 

consultation with and with the 

assistance of the Secretary, insure that 

any action authorized, funded, or 

carried out by such agency . . . is not 

likely to jeopardize the continued 

existence of any endangered species or 

threatened species or result in the 

destruction or adverse modification of 

[critical] habitat.’’ 16 U.S.C. 1536(a)(2). 

We have determined that this rule 

regarding the take of migratory birds 

will have no effect on species listed 

under the provisions of the ESA. This 

rule does not lessen the requirements 

under the ESA and thus, species listed 

under the ESA continue to be afforded 

the full protection of the ESA. 

Therefore, this action will not have any 

effect on these species. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175, ‘‘Consultation and Coordination 

with Indian Tribal Governments,’’ and 

the Department of the Interior’s manual 

at 512 DM 2, we considered the possible 

effects of this rule on federally 

recognized Indian Tribes. The 

Department of the Interior strives to 

strengthen its government-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance and Tribal sovereignty. We 

have evaluated this rule under the 

criteria in Executive Order 13175 and 

under the Department’s Tribal 

consultation policy and have 

determined that this rule may have a 

substantial direct effect on federally 

recognized Indian Tribes. We received 


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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations 1165 

requests from nine federally recognized 

Tribes and two Tribal councils for 

government-to-government 

consultation. Accordingly, the Service 

initiated government-to-government 

consultation via letters signed by 

Regional Directors and completed the 

consultations before issuing this final 

rule. The results of these consultations 

are summarized in the NEPA Record of 

Decision associated with this 

rulemaking, published at http:// 

www.regulations.gov in Docket No. 

FWS–HQ–MB–2018–0090. 

Energy Supply, Distribution, or Use 

(E.O. 13211) 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions. As 

noted above, this rule is a significant 

regulatory action under E.O. 12866, but 

the rule is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. The 

action has not been otherwise 

designated by the Administrator of 

OIRA as a significant energy action. No 

Statement of Energy Effects is required. 

List of Subjects in 50 CFR Part 10 

Exports, Fish, Imports, Law 

enforcement, Plants, Transportation, 

Wildlife. 

Regulation Promulgation 

For the reasons described in the 

preamble, we amend subchapter B of 

chapter I, title 50 of the Code of Federal 

Regulations, as set forth below: 

PART 10—GENERAL PROVISIONS 

■ 1. The authority citation for part 10 

continues to read as follows: 

Authority: 16 U.S.C. 668a–d, 703–712, 

742a–j–l, 1361–1384, 1401–1407, 1531–1543, 

3371–3378; 18 U.S.C. 42; 19 U.S.C. 1202. 

■ 2. Add § 10.14 to subpart B to read as 

follows: 

§ 10.14 Scope of the Migratory Bird Treaty 

Act. 

The prohibitions of the Migratory Bird 

Treaty Act (16 U.S.C. 703) that make it 

unlawful at any time, by any means or 

in any manner, to pursue, hunt, take, 

capture, or kill migratory birds, or 

attempt to engage in any of those 

actions, apply only to actions directed at 

migratory birds, their nests, or their 

eggs. Injury to or mortality of migratory 

birds that results from, but is not the 

purpose of, an action (i.e., incidental 

taking or killing) is not prohibited by 

the Migratory Bird Treaty Act. 

George Wallace, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2021–00054 Filed 1–5–21; 11:15 am] 

BILLING CODE 4333–15–P 


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