[Federal Register Volume 86, Number 25 (Tuesday, February 9, 2021)]
[Rules and Regulations]
[Pages 8715-8717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02667]


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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; Delay of Effective 
Date

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; delay of effective date and request for public 
comments.

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SUMMARY: On January 7, 2021, we, the U.S. Fish and Wildlife Service, 
published a final rule (``MBTA rule'') defining the scope of the 
Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in 
the injury or death of migratory birds protected by the MBTA. We are 
delaying the MBTA rule's effective date until March 8, 2021, in 
conformity with the Congressional Review Act (CRA). We request public 
comments to inform our review of this final rule and to determine 
whether the further extension of the effective date is necessary.

DATES: 
    Effective Date: As of February 5, 2021, the effective date of the 
rule that published on January 7, 2021, at 86 FR 1134, is delayed until 
March 8, 2021.
    Written Comments: We request public comments on issues of fact, 
law, and policy raised by the MBTA rule published on January 7, 2021 
(86 FR 1134), and on whether that rule should

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be amended, rescinded, delayed pending further review by the agency, or 
allowed to go into effect. Public comments must be received or 
postmarked on or before March 1, 2021.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-MB-2018-0090, 
which is the docket number for the rule. Then, click on the Search 
button. You may submit a comment by clicking on ``Comment Now!'' Please 
ensure you have located the correct document before submitting your 
comments.
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-HQ-MB-2018-0090, U.S. Fish and Wildlife Service, 
MS: JAO/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, at 202-208-1050.

SUPPLEMENTARY INFORMATION: On January 7, 2021, we, the U.S. Fish and 
Wildlife Service (USFWS), published a final rule defining the scope of 
the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting 
in the injury or death of migratory birds protected by the MBTA. During 
the course of review, the Office of Information and Regulatory Affairs 
(OIRA) of the Office of Management and Budget (OMB), based on 
information provided by the USFWS, determined that the MBTA rule was 
economically significant under Executive Order 12866, because it was 
likely to have an annual effect on the economy of $100 million or more, 
and that it was therefore a ``major rule'' under subtitle E of the 
Small Business Regulatory Enforcement Fairness Act (the ``Congressional 
Review Act'' or ``CRA''), 5 U.S.C. 804(2). See OIRA Conclusion of E.O. 
12866 Regulatory Review of the MBTA, available at https://www.reginfo.gov/public/do/eoDetails?rrid=131383 (designating the MBTA 
rule as a major rule under the CRA). The CRA provides that major rules 
shall not take effect for at least 60 days after publication in the 
Federal Register (5 U.S.C. 801(a)(3)).
    Notwithstanding this statutory requirement, the MBTA rule was 
published in the Federal Register without the requisite delay. This 
final rule corrects the effective date to March 8, 2021, in accordance 
with the CRA.
    The statutory provisions at issue in the MBTA rule have been the 
subject of repeated litigation. The final rule interpreted the scope of 
the MBTA to exclude incidental take of migratory birds--codifying 
Solicitor's Opinion M-37050 and rejecting several decades of past 
agency practice concluding that the MBTA prohibits the incidental take 
of migratory birds. However, in August 2020, a court vacated 
Solicitor's Opinion M-37050, as contrary to the MBTA (Natural Resources 
Defense Council v. U.S. Department of the Interior, No. 18-CV-4596 
(VEC), 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020)). In late January 2021, 
two new lawsuits were filed that challenge the legal basis for the 
final rule: Nat'l Audubon Soc'y v. U.S. Fish and Wildlife Serv., 1:21-
cv-00448 (S.D.N.Y. filed Jan. 19, 2021); State of New York v. U.S. 
Dep't of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021).
    In addition, on January 20, 2021, the White House issued a 
memorandum (86 FR 7424, January 28, 2021) instructing Federal agencies 
to consider postponing the effective date of any rules that have 
published in the Federal Register but not yet taken effect, for the 
purpose of reviewing any questions of fact, law, and policy they may 
raise. The memorandum directs that, for rules postponed in this manner, 
where appropriate and consistent with applicable law, agencies consider 
opening a comment period to allow interested parties to provide 
comments about issues of fact, law, and policy raised by those rules, 
and consider any petitions for reconsideration involving such rules.
    For the reasons explained above, in accordance with the 
Congressional Review Act, we are delaying the effective date of the 
MBTA rule we published on January 7, 2021 (86 FR 1134). The original 
effective date of the rule was February 8, 2021; with this document, we 
are changing the effective date of the rule to March 8, 2021, 60 days 
from its initial publication.
    Immediate implementation of the MBTA rule on March 8, 2021, 
significantly impacts the public interest. Specifically, the public has 
a strong interest in conserving the migratory bird resource and 
fulfilling shared objectives and obligations with a treaty partner, 
Canada. These interests could be harmed by allowing this regulation to 
take effect on its current effective date.
    First, as noted in the environmental impact statement (EIS) 
developed to analyze the impacts of the MBTA rule (85 FR 76077, 
November 27, 2020), its implementation may have significant impacts on 
migratory bird species and other resources. The EIS concluded that 
implementing the MBTA rule may have significant impacts on migratory 
birds, vegetation, other wildlife, and associated ecosystem services 
and other economic activities, but admitted that data are not readily 
quantifiable and available to determine the magnitude of those impacts. 
Neither the EIS nor the associated record of decision (``ROD'') set 
forth a monitoring plan to ascertain the magnitude of those impacts 
after implementation of the final rule. Thus, there is a high 
likelihood that the public interest in these resources will be harmed 
given that the magnitude of the impacts is likely significant but 
unknown and no monitoring plan is in place to determine that magnitude.
    Second, further delay of the effective date may make it possible to 
avoid costly and unnecessary litigation. As noted above, the District 
Court for the Southern District of New York, in vacating Solicitor's 
Opinion M-37050, has already expressly rejected the legal rationale of 
the MBTA rule, and two additional suits have been filed challenging the 
MBTA rule itself.
    Third, further consideration of concerns expressed by one of our 
treaty partners may counsel in favor of further delay of the effective 
date of the MBTA rule. The MBTA implements four bilateral migratory 
bird Conventions with Canada, Mexico, Russia, and Japan. See 16 U.S.C. 
703-705, 712. The Government of Canada communicated its concerns with 
the MBTA rule both during and after the rulemaking process, including 
providing comments on the EIS associated with the rule.
    After the public notice and comment period had closed, Canada's 
Minister of Environment and Climate Change summarized the Government of 
Canada's concerns in a public statement issued on December 18, 2020 
(https://www.canada.ca/en/environment-climate-change/news/2020/12/minister-wilkinson-expresses-concern-over-proposed-regulatory-changes-to-the-united-states-migratory-bird-treaty-act.html). Minister 
Wilkinson stated the Government of Canada's concern regarding ``the 
potential negative impacts to our shared migratory bird species'' of 
allowing the incidental take of migratory birds under the MBTA rule and 
``the lack of quantitative analysis to inform the decision.'' He noted 
that the ``Government of Canada's interpretation of the proposed 
changes . . . is that they are not consistent with the objectives of 
the Convention for the

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Protection of Migratory Birds in the United States and Canada.'' 
Additionally, in its public comments on the draft EIS for the MBTA 
rule, Canada stated that it believes the rule ``is inconsistent with 
previous understandings between Canada and the United States (U.S.), 
and is inconsistent with the long-standing protections that have been 
afforded to non-targeted birds under the Convention for the Protection 
of Migratory Birds in the United States and Canada . . . as agreed upon 
by Canada and the U.S. through Article I. The removal of such 
protections will result in further unmitigated risks to vulnerable bird 
populations protected under the Convention.''
    Therefore, we invite public comments on the MBTA rule to allow 
interested parties to provide comments about issues of fact, law, and 
policy raised by that rule, and so that we can consider any petitions 
for reconsideration involving the rule. We also invite public comments 
on whether the rule should be amended, rescinded, delayed pending 
further review by the agency, or allowed to go into effect. In 
particular, the USFWS would appreciate comments on the scope of the 
MBTA as it applies to conduct resulting in the injury or death of 
migratory birds protected by the MBTA, the impact of the MBTA rule on 
our treaty partners, the impact of the MBTA rule on regulated entities, 
the effect of the pending litigation on the MBTA rule, and the 
appropriateness of delaying the effective date of the MBTA rule beyond 
March 8, 2021. The USFWS will consider these comments in reviewing the 
MBTA rule. See DATES and ADDRESSES, above, and Public Comments, below, 
for more information on submitting comments.

Public Comments

    You may submit your comments and materials concerning the rule by 
one of the methods listed in ADDRESSES. Comments must be submitted to 
http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date 
specified under Written comments in DATES. We will not consider mailed 
comments that are not postmarked by the date specified under Written 
comments in DATES. Comments previously submitted need not be 
resubmitted and will be fully considered in our review of the rule.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. 
Comments and materials we receive will be available for public 
inspection on http://www.regulations.gov.

Administrative Procedure Act

    Our implementation of this action delaying the effective date of 
the MBTA rule from February 8, 2021, to March 8, 2021, without 
opportunity for public comment, effective immediately upon filing for 
publication in the Federal Register, is based on the good cause 
exceptions provided in the Administrative Procedure Act. Pursuant to 5 
U.S.C. 553(b)(B), we have determined that good cause exists to forgo 
the requirement to provide prior notice and an opportunity for public 
comment thereon for this rule as such procedures are unnecessary where 
the agency lacks discretion to choose an alternative course of action. 
As discussed above, the change of the effective date to March 8, 2021, 
is being made to comply with the 60-day effective date delay for major 
rules provided for in the Congressional Review Act. 5 U.S.C. 801(a)(3). 
For the same reasons discussed above, USFWS finds that there is good 
cause to waive the effective date delay under 5 U.S.C. 553(d)(3) and 5 
U.S.C. 808(2).

    Authority: The authorities for this action are 16 U.S.C. 668a-d, 
703-712, 742a-j-l, 1361-1384, 1401-1407, 1531-1543, 3371-3378; 18 
U.S.C. 42; and 19 U.S.C. 1202.

Shannon A. Estenoz,
Senior Advisor to the Secretary, Exercising the Delegated Authority of 
the Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-02667 Filed 2-5-21; 11:15 am]
BILLING CODE 4333-15-P