[Federal Register Volume 86, Number 87 (Friday, May 7, 2021)]
[Proposed Rules]
[Pages 24573-24581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09700]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 10

[Docket No. FWS-HQ-MB-2018-0090; FF09M21200-212-FXMB1231099BPP0]
RIN 1018-BD76


Regulations Governing Take of Migratory Birds; Proposed Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: On January 7, 2021, we, the U.S. Fish and Wildlife Service 
(we, the Service, or 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. We are now proposing to revoke that rule for the reasons set 
forth below. The effect of this proposed rule would be to return to 
implementing the MBTA as prohibiting incidental take and applying 
enforcement discretion, consistent with judicial precedent.

DATES: We request public comments on this proposed rule on or before 
June 7, 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 this action. 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 published a final 
rule defining the scope of the MBTA (16 U.S.C. 703 et seq.) as it 
applies to conduct resulting in the injury or death of migratory birds 
protected by the MBTA (86 FR 1134) (hereafter referred to as the 
``January 7 rule''). The January 7 rule codified an interpretation of 
the MBTA set forth in a 2017 legal opinion of the Solicitor of the 
Department of the Interior, Solicitor's Opinion M-37050, which 
concluded that the MBTA does not prohibit incidental take.
    As initially published, the January 7 rule was to become effective 
30 days later, on February 8, 2021. However, on February 4, 2021, USFWS 
submitted a final rule to the Federal Register correcting the January 7 
rule's effective date to March 8, 2021, to conform with its status as a 
``major rule'' under the Congressional Review Act, which requires a 
minimum effective date period of 60 days, see 5 U.S.C. 801(a)(3) and 
804(2). The final rule extending the effective date of the January 7 
final rule itself became effective when it was made available for 
public inspection in the reading room of the Office of Federal Register 
on February 5, 2021 and was published in the Federal Register on 
February 9, 2021 (86 FR 8715). In that document, we also sought public 
comment to inform our review of the January 7 rule and to determine 
whether further extension of the effective date is necessary.
    After further review, we decided not to extend the effective date 
of the January 7 rule beyond March 8. We acknowledge that the January 7 
rule will remain in effect for some period of time even if it is 
ultimately determined, after notice and comment, that it should be 
revoked. But, rather than extending the effective date again, we 
believe that the most transparent and efficient path forward is instead 
to immediately propose to revoke the January 7 rule. This proposed rule 
provides the public with notice of our current intent to revoke the 
January 7 rule's interpretation of the MBTA that it does not prohibit 
incidental take, subject to our final decision after consideration of 
public comments.
    We have undertaken further review of the January 7 rule and have 
determined that the rule does not reflect the best reading of the 
MBTA's text, purpose, and history. It is also inconsistent with the 
majority of relevant court decisions addressing the issue, including 
the decision of the District Court for the Southern District of New 
York that expressly rejected the rationale offered in the rule. The 
rule's reading of the MBTA also raises serious concerns with a United 
States' treaty partner, and for the migratory bird resources protected 
by the MBTA and underlying treaties. Accordingly, we are proposing to 
revoke the January 7 rule.
    The MBTA statutory provisions at issue in the January 7 rule have 
been the subject of repeated litigation and diametrically opposed 
opinions of the Solicitors of the Department of the Interior. The 
longstanding historical agency practice confirmed in the earlier 
Solicitor M-Opinion, M-37041, and upheld by most reviewing courts, had 
been that the MBTA prohibits the incidental take of migratory birds 
(subject to certain legal constraints). The January 7 rule reversed 
these several decades of past agency practice and interpreted the scope 
of the MBTA to exclude incidental take of migratory birds. In so doing, 
the January 7 rule codified Solicitor's Opinion M-37050, which itself 
had been vacated by the United States District Court for the Southern 
District of New York. This interpretation focused on the language of 
section 2 of the MBTA, which, in relevant part, makes it ``unlawful at 
any time, by any means, or in any manner, to pursue, hunt, take, 
capture, kill'' migratory birds or attempt to do the same. 16 U.S.C. 
703(a). Solicitor's

[[Page 24574]]

Opinion M-37050 and the January 7 rule argued that the prohibited terms 
listed in section 2 all refer to conduct directed at migratory birds, 
and that the broad preceding language, ``by any means, or in any 
manner,'' simply covers all potential methods and means of performing 
actions directed at migratory birds and does not extend coverage to 
actions that incidentally take or kill migratory birds.
    As noted above, on August 11, 2020, a court rejected the 
interpretation set forth in Solicitor's Opinion M-37050 as contrary to 
the MBTA and vacated that opinion. Natural Res. Def. Council v. U.S. 
Dep't of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (``NRDC ''). 
In late January 2021, two new lawsuits were filed that challenge the 
January 7 rule. Nat'l Audubon Soc'y v. U.S. Fish & 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). At 
the time the January 7 rule was published, the United States had filed 
a notice of appeal of the NRDC decision in the U.S. Court of Appeals 
for the Second Circuit. Since that time, the United States filed a 
stipulation to dismiss that appeal on February 25, 2021, and the Deputy 
Solicitor permanently withdrew M-37050 on March 8, 2021.
    The District Court's decision in NRDC expressly rejected the basis 
for the January 7 rule's conclusion that the statute does not prohibit 
incidental take. In particular, the court reasoned that the plain 
language of the MBTA's prohibition on killing protected migratory bird 
species ``at any time, by any means, and in any manner'' shows that the 
MBTA prohibits incidental killing. See 478 F. Supp. 3d at 481. Thus, 
the statute is not limited to actions directed at migratory birds. 
After closely examining the court's holding, we are persuaded that it 
advances the better reading of the statute, including that the better 
reading of ``kill'' is that it also prohibits incidental killing.
    The interpretation contained in the January 7 rule relies heavily 
on United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) 
(CITGO). The Fifth Circuit is the only Circuit Court of Appeals to 
expressly state that the MBTA does not prohibit incidental take. In 
CITGO, the Fifth Circuit held that the term ``take'' in the MBTA does 
not include incidental taking because ``take'' at the time the MBTA was 
enacted in 1918 referred in common law to ``[reducing] animals, by 
killing or capturing, to human control'' and accordingly could not 
apply to accidental or incidental take. Id. at 489 (following Babbitt 
v. Sweet Home Chapter Cmtys. for a Great Or., 515 U.S. 687, 717 (1995) 
(Scalia J., dissenting) (Sweet Home)). While we do not agree with the 
CITGO court's interpretation of the term ``take'' under the MBTA, we 
further note that CITGO does not provide legal precedent for construing 
``kill'' narrowly. The CITGO court's analysis is limited by its terms 
to addressing the meaning of the term ``take'' under the MBTA; thus, 
any analysis of the meaning of the term ``kill'' was not part of the 
court's holding. As discussed below, however, we also disagree with the 
CITGO court's analysis of the term ``kill.''
    Although the CITGO court's holding was limited to interpreting 
``take,'' the court opined in dicta that the term ``kill'' is limited 
to intentional acts aimed at migratory birds in the same manner as 
``take.'' See 801 F.3d at 489 n.10. However, the court based this 
conclusion on two questionable premises.
    First, the court stated that ``kill'' has little if any independent 
meaning outside of the surrounding prohibitory terms ``pursue,'' 
``hunt,'' ``capture,'' and ``take,'' analogizing the list of prohibited 
acts to those of two other environmental statutes--the Endangered 
Species Act (ESA) (16 U.S.C. 1531 et seq.) and the Migratory Bird 
Conservation Act (16 U.S.C. 715 et seq.). See id. The obvious problem 
with this argument is that it effectively reads the term ``kill'' out 
of the statute; in other words, the CITGO court's reasoning renders 
``kill'' superfluous to the other terms mentioned, thus violating the 
rule against surplusage. See, e.g., Corley v. United States, 556 U.S. 
303, 314 (2009).
    Second, employing the noscitur a sociis canon of statutory 
construction (which provides that the meaning of an ambiguous word 
should be determined by considering its context within the words it is 
associated with), the Fifth Circuit argued that because the surrounding 
terms apply to ``deliberate acts that effect bird deaths,'' then 
``kill'' must also. See 801 F.3d at 489 n.10. The January 7 rule also 
relied heavily on this canon to argue that both ``take'' and ``kill'' 
must be read as deliberate acts in concert with the other referenced 
terms. Upon closer inspection though, the only terms that clearly and 
unambiguously refer to deliberate acts are ``hunt'' and ``pursue.'' 
Both the CITGO court and the January 7 final rule erroneously 
determined that ``capture'' can also only be interpreted as a 
deliberate act. This is not so. There are many examples of 
unintentional or incidental capture, such as incidental capture in 
traps intended for animals other than birds or in netting designed to 
prevent swallows nesting under bridges. Thus, the CITGO court's primary 
argument that ``kill'' only applies to ``deliberate actions'' rests on 
the fact that just two of the five prohibited actions unambiguously 
describe deliberate acts. The fact that most of the prohibited terms 
can be read to encompass actions that are not deliberate in nature is a 
strong indication that Congress did not intend those terms to narrowly 
apply only to direct actions.
    The NRDC court similarly rejected the January 7 rule's 
interpretation of the term ``kill'' and its meaning within the context 
of the list of actions prohibited by the MBTA. The court noted the 
broad, expansive language of section 2 prohibiting hunting, pursuit, 
capture, taking, and killing of migratory birds ``by any means or in 
any manner.'' 478 F. Supp. 3d at 482. The court reasoned that the plain 
meaning of this language can only be construed to mean that activities 
that result in the death of a migratory bird are a violation 
``irrespective of whether those activities are specifically directed at 
wildlife.'' Id. The court also noted that the Sweet Home decision 
relied upon by the CITGO court and the January 7 rule actually counsels 
in favor of a broad reading of the term ``kill,'' even assuming Justice 
Scalia accurately defined the term ``take'' in his dissent. The Sweet 
Home case dealt specifically with the definition of ``take'' under the 
ESA, which included the terms ``harm'' and ``kill.'' The majority in 
Sweet Home was critical of the consequences of limiting liability under 
the ESA to ``affirmative conduct intentionally directed against a 
particular animal or animals,'' reasoning that knowledge of the 
consequences of an act are sufficient to infer liability, including 
typical incidental take scenarios. Id. at 481-82.
    The NRDC court went on to criticize the use of the noscitur a 
sociis canon in Solicitor's Opinion M-37050 (a use repeated in the 
January 7 rule). The court reasoned that the term ``kill'' is broad and 
can apply to both intentional, unintentional, and incidental conduct. 
The court faulted the Solicitor's narrow view of the term and disagreed 
that the surrounding terms required that narrow reading. To the 
contrary, the court found the term ``kill'' to be broad and not at all 
ambiguous, pointedly noting that proper use of the noscitur canon is 
confined to interpreting ambiguous statutory language. Moreover, use of 
the noscitur canon deprives ``kill'' of any independent meaning, which 
runs headlong into the canon against surplusage as noted above. The 
court did not agree that an example provided

[[Page 24575]]

by the government demonstrated that ``kill'' had independent meaning 
from ``take'' under the interpretation espoused by Solicitor's Opinion 
M-37050. By analogy, the court referenced the Supreme Court's rejection 
of the dissent's use of the noscitur canon in Sweet Home, which 
similarly gave the term ``harm'' the same essential function as the 
surrounding terms used in the definition of ``take'' under the ESA, 
denying it independent meaning. See id. at 484.
    In sum, after further review of the CITGO and NRDC decisions, along 
with the language of the statute, we now conclude that the 
interpretation of the MBTA set forth in the January 7 rule and 
Solicitor's Opinion M-37050, which provided the basis for that 
interpretation, is not the construction that best accords with the 
text, purposes, and history of the MBTA. It simply cannot be squared 
with the NRDC court's holding that the MBTA's plain language 
encompasses the incidental killing of migratory birds. Even if the NRDC 
court's plain-language analysis were incorrect, the operative language 
of the MBTA is at minimum ambiguous, thus USFWS has discretion to 
implement that language in a manner consistent with the conservation 
purposes of the statute and its underlying Conventions. To the extent 
that the primary policy justifications for the January 7 rule were 
resolving uncertainty and increasing transparency through rulemaking, 
we do not consider these concerns to outweigh the legal infirmities of 
the January 7 rule or the conservation purposes of the statute and its 
underlying Conventions. Interpreting the statute to exclude incidental 
take is not the reading that best advances these purposes, which is 
underscored by the following additional reasons for revoking the 
current regulation.
    First, the January 7 rule is undermined by the 2002 legislation 
authorizing military-readiness activities that incidentally take or 
kill migratory birds. In that legislation, Congress temporarily 
exempted ``incidental taking'' caused by military-readiness activities 
from the prohibitions of the MBTA; required the Secretary of Defense to 
identify, minimize, and mitigate the adverse effect of military-
readiness activities on migratory birds; and directed USFWS to issue 
regulations under the MBTA creating a permanent exemption for military-
readiness activities. Bob Stump National Defense Authorization Act for 
Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section 315 
(2002), 116 Stat. 2509 (Stump Act). This legislation was enacted in 
response to a court ruling that had enjoined military training that 
incidentally killed migratory birds. Ctr. for Biological Diversity v. 
Pirie, 191 F. Supp. 2d 161 and 201 F. Supp. 2d 113 (D.D.C. 2002), 
vacated on other grounds sub nom. Ctr. for Biological Diversity v. 
England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003). Notably, 
Congress did not amend the MBTA to define the terms ``take'' or 
``kill.'' Instead, Congress itself uses the term ``incidental take'' 
and provides that the MBTA ``shall not apply'' to such take by the 
Armed Forces during ``military-readiness activities.'' Moreover, 
Congress limited the exemption only to military-readiness activities to 
training and operations related to combat and the testing of equipment 
for combat use; it expressly excluded routine military-support 
functions and the ``operation of industrial activities'' from the 
exemption afforded by the 2002 legislation, leaving such non-combat-
related activities fully subject to the prohibitions of the Act. Even 
then, the military-readiness incidental take carve-out was only 
temporarily effectuated through the statute itself. Congress further 
directed the Department of the Interior (DOI or the Department) ``to 
prescribe regulations to exempt the Armed Forces for the incidental 
taking of migratory birds during military readiness activities.'' This 
would be an odd manner in which to proceed to address the issue raised 
by the Pirie case if Congress' governing understanding at the time was 
that incidental take of any kind was not covered by the Act (we 
acknowledge that Congress's understanding when enacting legislation in 
2002 is relevant to, but not dispositive of, Congress's intent when it 
enacted the MBTA in 1918). Congress simply could have amended the MBTA 
to clarify that incidental take is not prohibited by the statute or, at 
the least, that take incidental to military-readiness activities is not 
prohibited. Instead, Congress limited its amendment to exempting 
incidental take only by military-readiness activities, expressly 
excluded other military activities from the exemption, and further 
directed DOI to issue regulations delineating the scope of the 
military-readiness carve-out from the prohibitions of the Act. All of 
these factors indicate that Congress understood that the MBTA's take 
and kill prohibitions included what Congress itself termed ``incidental 
take.''
    In arguing that Congress's authorization of incidental take during 
military-readiness activities did not authorize enforcement of 
incidental take in other contexts, the January 7 rule cites the CITGO 
court's conclusion that 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. It is true that the Stump Act 
clearly did not, by its terms, authorize enforcement of incidental take 
in other contexts. It clearly could not do anything of the sort, based 
on its narrow application to military-readiness activities. Rather, the 
logical explanation is that Congress considered that the MBTA already 
prohibited incidental take (particularly given USFWS's enforcement of 
incidental take violations over the prior three decades) and there was 
no comprehensive regulatory mechanism available to authorize that take. 
Thus, it was necessary to temporarily exempt incidental take pursuant 
to military-readiness activities to address the Pirie case and direct 
USFWS to create a permanent exemption. This conclusion is supported by 
the fact that Congress specifically stated in the Stump Act that the 
exemption did not apply to certain military activities that do not meet 
the definition of military readiness, including operation of industrial 
activities and routine military-support functions.
    On closer inspection, the CITGO court's analysis of the purposes 
behind enactment of the military-readiness exemption is circular. 
Assuming the military-readiness exemption is necessary because the MBTA 
otherwise prohibits incidental take only represents an implicit and 
huge expansion of coverage under the MBTA if it is assumed that the 
statute did not already prohibit incidental take up to that point. But 
Congress would have had no need to enact the exemption if the MBTA did 
not--both on its terms and in Congress's understanding--prohibit 
incidental take. The adoption of a provision to exempt incidental take 
in one specific instance is merely a narrowly tailored exception to the 
general rule, and provides clear evidence of what Congress understood 
the MBTA to prohibit.
    Second, further consideration of concerns expressed by one of our 
treaty partners counsels in favor of revoking the January 7 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 January 7 rule both during 
and after the rulemaking process, including providing comments on the 
environmental impact statement (EIS) associated with the rule.
    After the public notice and comment period had closed, Canada's 
Minister of

[[Page 24576]]

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 
voiced 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 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.'' After further 
consideration, we have similar concerns to those of our treaty partner, 
Canada.
    The protections for ``non-targeted birds'' noted by the Canadian 
Minister are part and parcel of the Canada Convention, as 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, which protects not only game birds hunted and trapped 
for sport and food, but also nongame birds and insectivorous birds. For 
instance, the preamble to the Convention declares ``saving from 
indiscriminate slaughter and of insuring the preservation of such 
migratory birds as are either useful to man or are harmless'' as its 
very purpose and declares that ``many of these species are . . . in 
danger of extermination through lack of adequate protection during the 
nesting season or while on their way to and from their breeding 
grounds.'' Convention between the United States and Great Britain (on 
behalf of Canada) for the Protection of Migratory Birds, 39 Stat. 1702 
(Aug. 16, 1916). Thus, whether one argues that the language of section 
2 of the MBTA plainly prohibits incidental killing of migratory birds 
or is ambiguous in that regard, an interpretation that excludes 
incidental killing is difficult to square with the express conservation 
purposes of the Canada Convention. Moreover, until recently there had 
been a longstanding ``mutually held interpretation'' between the two 
treaty partners that regulating incidental take is consistent with the 
underlying Convention, as stated in an exchange of Diplomatic Notes in 
2008. While Canada expressed its position before the final rule on 
January 7, upon review, we now have determined that the concerns raised 
by the United States' treaty partner counsel in favor of revocation of 
the rule.
    In addition to the Canada Convention, the January 7 rule may also 
be inconsistent with the migratory bird conventions with Mexico, Japan, 
and Russia. The Japan and Russia Conventions both broadly call for the 
parties to prevent damage to birds from pollution. See 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, Mar. 4, 1972, 25 U.S.T. 
3329 (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, Nov. 19, 1976, 
29 U.S.T. 4647 (Russia Convention). The Protocols amending the Canada 
and Mexico Conventions contain similar language calling for the parties 
to seek means to prevent damage to birds and their environment from 
pollution. 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, Dec. 14, 1995, S. Treaty Doc. No. 104-28, T.I.A.S. 
12721; Protocol Between the Government of the United States of America 
and the Government of the United Mexican States Amending the Convention 
for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S. 
Treaty Doc. No. 105-26.
    Some of the relevant provisions include Article IV of the Protocol 
with Canada, which states that each party shall use its authority to 
``take appropriate measures to preserve and enhance the environment of 
migratory birds,'' and in particular shall ``seek means to prevent 
damage to [migratory] birds and their environments, including damage 
resulting from pollution''; Article I of the Mexico Convention, which 
discusses protecting migratory birds by ``means of adequate methods[. . 
.]''; Article VI(a) of the Japan Convention, which provides that 
parties shall ``[s]eek means to prevent damage to such birds and their 
environment, including, especially, damage resulting from pollution of 
the seas''; and Articles IV(1) and 2(c) of the Russia Convention, which 
require parties to ``undertake measures necessary to protect and 
enhance the environment of migratory birds and to prevent and abate the 
pollution or detrimental alteration of that environment,'' and, in 
certain special areas, undertake, to the maximum extent possible, 
``measures necessary to protect the ecosystems in those special areas . 
. . against pollution, detrimental alteration and other environmental 
degradation.''
    The January 7 rule eliminates a source of liability for pollution 
that incidentally takes and kills migratory birds, a position that is 
difficult to square with the mutually agreed-upon treaty provisions 
agreeing to prevent damage to birds from pollution. The January 7 rule 
does not directly affect natural resource damage assessments conducted 
under the Comprehensive Environmental Response Compensation and 
Liability Act, the Oil Pollution Act, and the Clean Water Act to 
determine compensation to the public for lost natural resources and 
their services from accidents that have environmental impacts, such as 
oil spills. However, for oils spills such as the BP Deepwater Horizon 
Gulf oil spill and the Exxon Valdez oil spill in Alaska, significant 
penalties were levied in addition to those calculated under natural 
resource damage assessments based on incidental-take liability under 
the MBTA. Those fines constituted a large proportion of the total 
criminal fines and civil penalties associated with historical 
enforcement of incidental take violations. As noted in the EIS, the 
January 7 rule eliminates the Federal Government's ability to levy 
similar fines in the future, thereby reducing the deterrent effect of 
the MBTA and reducing funding for the North American Wetland 
Conservation Fund for the protection and restoration of wetland habitat 
for migratory birds.
    In sum, the issues raised by the Government of Canada raise 
significant concerns regarding whether the January 7 rule is consistent 
with the Canada Convention, and questions also remain regarding that 
rule's consistency with the other migratory bird Conventions. We note 
as well that the primary policy justifications for the January 7 rule 
were resolving uncertainty and increasing

[[Page 24577]]

transparency through rulemaking. These concerns, however, do not 
outweigh the legal infirmities of the January 7 rule or the 
conservation objectives described above. On these bases, in addition to 
the legal concerns raised above, we are proposing to revoke the MBTA 
rule.

Public Comments

    We solicit public comments on the following topics:
    1. Whether we should revoke the rule, as proposed here, and why or 
why not;
    2. The costs or benefits of revoking the rule;
    3. The costs or benefits of leaving the rule in place; and
    4. Any reliance interests that might be affected by revoking the 
rule, or not revoking the rule.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. If you provided 
comments in response to the February 9, 2021, rule (86 FR 8715) to 
extend the effective date of the January 7 rule, you do not need to 
resubmit those comments in response to this proposed rule. The USFWS 
will consider all comments pertaining to the January 7 rule that were 
submitted in response to the February 9, 2021, rule in determining 
whether to revoke the January 7 rule. Comments must be submitted to 
http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date 
specified in DATES. We will not consider mailed comments that are not 
postmarked by the date specified in DATES.
    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.

Required Determinations

National Environmental Policy Act

    Because we are proposing to revoke the January 7 MBTA rule, we will 
rely on the final EIS developed to analyze that rule in determining the 
environmental impacts of revoking it: ``Final Environmental Impact 
Statement; Regulations Governing Take of Migratory Birds,'' available 
on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The 
alternatives analyzed in that EIS cover the effects of interpreting the 
MBTA to both include and exclude incidental take. If we finalize this 
proposed rule, we will publish an amended Record of Decision that 
explains our decision to instead select the environmentally preferable 
alternative, or Alternative B, in the final EIS. If we determine that 
any additional, relevant impacts on the human environment have occurred 
subsequent to our existing Record of Decision, we will describe those 
impacts in the amended Record of Decision.

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-to government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self governance 
and Tribal sovereignty.
    We have evaluated the January 7 rule that this proposed rule would 
revoke under the criteria in Executive Order 13175 and under the 
Department's Tribal consultation policy and determined that the January 
7 rule may have a substantial direct effect on federally recognized 
Indian Tribes. We received requests from nine federally recognized 
Tribes and two Tribal councils for government-to-government 
consultation on that rule. Accordingly, the Service initiated 
government to government consultation via letters signed by Regional 
Directors and completed the consultations before issuing the January 7 
final rule.
    During these consultations, there was unanimous opposition from 
Tribes to the re-interpretation of the MBTA to exclude coverage of 
incidental take under the January 7 rule. Thus, this proposal to revoke 
the January 7 rule is consistent with the requests of federally 
recognized Tribes during those consultations.

Energy Supply Distribution

    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 the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
as a significant energy action. Therefore, no Statement of Energy 
Effects is required.

Endangered Species Act

    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 proposing the revocation of the January 7 
rule regarding the take of migratory birds will have no effect on ESA-
listed species within the meaning of ESA Section 7(a)(2).

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 proposed rule is economically 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 proposed rule in a manner 
consistent with these requirements.
    This proposed regulation would revoke the January 7 MBTA rule. The 
legal effect of this proposal would be to remove from the Code of 
Federal Regulations (CFR) the interpretation that incidental take of 
migratory birds is not prohibited under the MBTA, based on

[[Page 24578]]

the rationale explained in the preamble. As explained in the preamble, 
the Solicitor's Opinion (M-37050) that formed the basis for the January 
7 rule was overturned in court and has since been withdrawn by the 
Solicitor's Office. By removing Sec.  10.14 from subpart B of title 50 
CFR, USFWS would revert to implementing the statute without an 
interpretative regulation governing incidental take, consistent with 
judicial precedent. This would mean that incidental take can violate 
the MBTA to the extent consistent with the statute and judicial 
precedent. Enforcement discretion would be applied, subject to certain 
legal constraints.
    The Service conducted a regulatory impact analysis of the January 7 
rule, which can be viewed online at http://www.regulations.gov in 
Docket No. FWS-HQ-MB-2018-0090. In that analysis, we analyzed the 
effects of an alternative (Alternative B) where the Service would 
promulgate a regulation that interprets the MBTA to prohibit incidental 
take consistent with the Department's longstanding prior 
interpretation. By reverting to this interpretation, the Service would 
view the incidental take of migratory birds as a potential violation of 
the MBTA, consistent with judicial precedent. The Regulatory Impact 
Analysis for this proposed rule can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The primary 
benefit of this rule results from decreased incidental take. While we 
are unable to quantify the benefits, we expect this rule to result in 
increased ecosystem services and benefits to businesses that rely on 
these services. Further, benefits will accrue from increased bird 
watching opportunities. The primary cost of this rule is the compliance 
cost incurred by industry, which is also not quantifiable. Firms are 
more likely to implement best practice measures to avoid potential 
fines. Additionally, potential fines generate transfers from industry 
to the government. Using a 10-year time horizon (2022-2031), the 
present value of these transfers is estimated to be $73.6 million at a 
7-percent discount rate and $67.1 million at a 3-percent discount rate. 
This would equate to an annualized value of $15.6 million at a 7-
percent discount rate and $15.3 million at a 3-percent discount rate.

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). We 
prepared an Initial Regulatory Flexibility Analysis, briefly summarized 
below, to accompany this rule that can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.
    The proposed rule may affect industries that typically incidentally 
take substantial numbers of birds and with which the Service has worked 
to reduce those effects (Table 1). 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. It is important to 
note that many small businesses would not be affected if we ultimately 
promulgate this proposed rule. Only those businesses that reduced best 
management practices that avoid or minimize incidental take of 
migratory birds as a result of the issuance of M-37050 in January 2017 
and the January 7, 2021, rule would incur costs. If we promulgate this 
proposed rule, those businesses would presumably reinstate those best 
management practices. We are requesting public comment on the number of 
businesses that reduced best management practices and the resulting 
cost savings as a direct result of issuance of M-37050 and the January 
7 rule.

                         Table 1--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
                                                                         Small business
                                                            Number of     size standard      Number of small
       NAICS industry description          NAICS code      businesses      (number of           businesses
                                                                           employees)
----------------------------------------------------------------------------------------------------------------
Finfish Fishing........................          114111           1,210          \a\ 20                    1,185
Crude Petroleum and Natural Gas                  211111           6,878           1,250                    6,868
 Extraction............................
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             517312          15,845           1,500                   15,831
 (except Satellite)....................
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.
\a\ Note: The SBA 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 currently have a permitting system 
dedicated to authorizing incidental take of migratory birds, the 
Service does not have specific information regarding how many 
businesses in each sector implement measures to reduce incidental take 
of birds. Not all businesses in each sector incidentally take birds. In 
addition, a

[[Page 24579]]

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 Opinion M-37050 or issuance of the January 7 rule. We did 
not receive sufficient information on that issue during the public 
comment periods associated with the January 7 rule and associated NEPA 
analysis or the February 9 rule extending the effective date of the 
January 7 rule. We reiterate our request for public comment on these 
issues for this proposed rule.
    If this proposed rulemaking results in revoking the January 7 rule, 
any subsequent incidental take of migratory birds could violate the 
MBTA, consistent with the statute and judicial precedent. Some small 
entities would incur costs if they reduced best management practices 
after M-Opinion 37050 was issued in January 2017 or after promulgation 
of the January 7, 2021, rule and would need to subsequently reinstate 
those practices if the January 7 rule is revoked, assuming they did not 
already reinstate such practices after vacatur of M-Opinion 37050.

Summary

    Table 2 identifies examples of bird mitigation measures, their 
associated costs, and why available data are not extrapolated to the 
entire industry sector or small businesses. We are requesting public 
comment so we can extrapolate data, if appropriate, to each industry 
sector and any affected small businesses. Table 3 summarizes likely 
economic effects of the proposed rule on the business sectors 
identified in Table 1. In many cases, 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. We are requesting public comment regarding this estimate. As 
shown by the limited data in Table 3, we are also requesting public 
comment for the finfish fishing and solar power electric generation 
industries to determine significance. The likely economic effects 
summarized in Table 3 are based on the RFA analysis for the January 7 
rule. We solicited public comments on these issues during the public 
comment periods associated with the January 7 rule and associated NEPA 
analysis and the February 9 rule extending the effective date of the 
January 7 rule. We reiterate our request for public comment on these 
data for this proposed rule.

                            Table 2--Best Management Practices Costs by Industry \1\
----------------------------------------------------------------------------------------------------------------
                                                                                            Why data are not
                                        Example of bird                                  extrapolated to entire
          NAICS industry               mitigation measure          Estimated cost           industry or small
                                                                                               businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (NAICS 11411)....  Changes in design of        Costs are per     No data
                                    longline fishing hooks,    vessel per year.          available on fleet
                                    changes in offal           $1,400 for        size.
                                    management practices,      thawed blue-dyed bait..   No data
                                    use of flagging or         $150 for          available on how many
                                    streamers on fishing       strategic offal           measures are employed
                                    lines.                     discards..                on each vessel.
                                                               $4,600 for Tori
                                                               line..
                                                               $4,000 one-time
                                                               cost for underwater
                                                               setting chute..
                                                               $4,000 initial
                                                               and $50 annual for side
                                                               setting..
Crude Petroleum and Natural Gas     Netting of oil     $130,680 to       Infeasible to
 Extraction NAICS (211111).         pits and ponds.            $174,240 per acre to      net pits larger than 1
                                    Closed             net ponds..               acre due to sagging.
                                    wastewater systems..       Most netted       Size
                                                               pits are \1/4\ to \1/2\   distribution of oil
                                                               acre..                    pits is unknown.
                                                               Cost not          Average number
                                                               available for             of pits per business is
                                                               wastewater systems..      unknown.
                                                                                         Closed
                                                                                         wastewater systems
                                                                                         typically used for
                                                                                         reasons other than bird
                                                                                         mitigation.
Drilling Oil and Gas Wells (NAICS   Netting of oil     $130,680 to       Infeasible to
 213111).                           pits and ponds.            $174,240 per acre to      net pits larger than 1
                                    Closed loop        net ponds..               acre due to sagging.
                                    drilling fluid systems..   Cost not          Size
                                                               available for closed      distribution of oil
                                                               loop drilling fluid       pits is unknown.
                                                               systems, but may be a     Average number
                                                               net cost savings in       of pits per business is
                                                               arid areas with water     unknown.
                                                               conservation              Closed loop
                                                               requirements..            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    Pre- and post-             No public comments        New projects can vary
 (NAICS 221114).                    construction bird          received on January 7     from 100 to 5,000 acres
                                    surveys.                   rule to estimate costs.   in size, and mortality
                                                                                         surveys may not scale
                                                                                         linearly.
Wind Electric Power Generation      Pre-construction   Cost not          Data not
 (NAICS 221115).                    adjustment of turbine      available for             available for
                                    locations to minimize      adjustment of turbine     adjustment of turbine
                                    bird mortality during      construction locations.   construction locations.
                                    operations.                $100,000 to       High
                                    Pre- and post-     $500,000 per facility     variability in survey
                                    construction bird          per year for pre-         costs and high
                                    surveys..                  construction site use     variability in need to
                                    Retrofit power     and post-construction     conduct surveys.
                                    poles to minimize eagle    bird mortality surveys..  High
                                    mortality..                $7,500 per        variability in cost and
                                                               power pole with high      need to retrofit power
                                                               variability of cost.      poles.
                                                               Annual
                                                               nationwide labor cost
                                                               to implement wind
                                                               energy guidelines:
                                                               $17.6M..
                                                               Annual
                                                               nationwide non-labor
                                                               cost to implement wind
                                                               energy guidelines:
                                                               $36.9M..
Electric Bulk Power Transmission   Retrofit power poles to    $7,500 per power pole     High variability in cost
 (NAICS 221121).                    minimize eagle mortality.  with high variability     and need to retrofit
                                                               of cost.                  power poles.
Electric Power Distribution        Retrofit power poles to    $7,500 per power pole     High variability in cost
 (NAICS 221122).                    minimize eagle mortality.  with high variability     and need to retrofit
                                                               of cost.                  power poles.

[[Page 24580]]

 
Wireless Tele-communications        Extinguish non-    Industry saves   Data not available for
 Carriers (except Satellite)        flashing lights on         hundreds of dollars per   number of operators who
 (NAICS 517312).                    towers taller than 350'.   year in electricity       have implemented these
                                    Retrofit towers    costs by extinguishing    practices.
                                    shorter than 350' with     lights.
                                    LED flashing lights..      Retrofitting
                                                               with LED lights
                                                               requires initial cost
                                                               outlay, which is
                                                               recouped over time due
                                                               to lower energy costs
                                                               and reduced
                                                               maintenance..
----------------------------------------------------------------------------------------------------------------
\1\ Sources: 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 3--Summary of Economic Effects on Small Businesses
----------------------------------------------------------------------------------------------------------------
                                         Potential bird
 NAICS industry description (NAICS     mitigation measures     Economic effects on
               code)                   under this proposed      small businesses              Rationale
                                              rule
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (11411)............  Changes in design of    Likely minimal effects  Seabirds are specifically
                                      longline fishing                                excluded from the
                                      hooks, changes in                               definition of bycatch
                                      offal management                                under the Magnuson-Stevens
                                      practices, and                                  Fishery Conservation and
                                      flagging/streamers on                           Management Act and,
                                      fishing lines.                                  therefore, seabirds not
                                                                                      listed under the ESA may
                                                                                      not be covered by any
                                                                                      mitigation measures. The
                                                                                      impact of this on small
                                                                                      entities is unknown.
Crude Petroleum and Natural Gas      Using closed waste-     Likely minimal effects  Thirteen States have
 Extraction (211111).                 water systems or                                regulations governing the
                                      netting of oil pits                             treatment of oil pits such
                                      and ponds.                                      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 proposed
                                                                                      rule is unlikely to affect
                                                                                      a significant number of
                                                                                      small entities.
Drilling Oil and Gas Wells (213111)  Using closed waste-     Likely minimal effects  Thirteen States have
                                      water systems or                                regulations governing the
                                      netting of oil pits                             treatment of oil pits,
                                      and ponds.                                      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 proposed
                                                                                      rule is unlikely to affect
                                                                                      a significant number of
                                                                                      small entities.
Solar Electric Power Generation      Monitoring bird use     Likely minimal effects  Bird monitoring in some
 (221114).                            and mortality at                                States may continue to be
                                      facilities, limited                             required under State
                                      use of deterrent                                policies. The number of
                                      systems such as                                 States and the policy
                                      streamers and                                   details are unknown.
                                      reflectors.
Wind Electric Power Generation       Following Wind Energy   Likely minimal effects  Following the Wind Energy
 (221115).                            Guidelines, which                               Guidelines has become
                                      involve conducting                              industry best practice and
                                      risk assessments for                            would likely continue. In
                                      siting facilities.                              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     Following Avian Power   Likely minimal effects  Industry would likely
 (221121).                            Line Interaction                                continue to use APLIC
                                      Committee (APLIC)                               guidelines to reduce
                                      guidelines.                                     outages caused by birds
                                                                                      and to reduce the take of
                                                                                      eagles, regulated under
                                                                                      the Bald and Golden Eagle
                                                                                      Protection Act.
Electric Power Distribution          Following Avian Power   Likely minimal effects  Industry would likely
 (221122).                            Line Interaction                                continue to use APLIC
                                      Committee (APLIC)                               guidelines to reduce
                                      guidelines.                                     outages caused by birds
                                                                                      and to reduce the take of
                                                                                      eagles, regulated under
                                                                                      the Bald and Golden Eagle
                                                                                      Protection Act.
Wireless Tele-communications         Installation of         Likely minimal effects  Industry will likely
 Carriers (except Satellite)          flashing obstruction                            continue to install
 (517312).                            lighting.                                       flashing obstruction
                                                                                      lighting to save energy
                                                                                      costs and to comply with
                                                                                      recent Federal Aviation
                                                                                      Administration Lighting
                                                                                      Circular and Federal
                                                                                      Communication Commission
                                                                                      regulations.
----------------------------------------------------------------------------------------------------------------

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

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 proposed rule would not ``significantly or uniquely'' 
affect small government activities. A small government agency plan is 
not required.
    b. This proposed rule would not produce a Federal mandate on local 
or State government or private entities. Therefore, this proposed 
action is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act.

Takings

    In accordance with E.O. 12630, this proposed 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 proposed rule will not create substantial direct effects or 
compliance costs on State and local governments or preempt State law. 
Some States may choose not to enact changes in their management efforts 
and regulatory processes and staffing to develop and or implement State 
laws governing birds, likely accruing benefits for States. Therefore, 
this proposed 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 determine that this proposed rule 
will not unduly burden the judicial system

[[Page 24581]]

and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This proposed 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.

List of Subjects in 50 CFR Part 10

    Exports, Fish, Imports, Law enforcement, Plants, Transportation, 
Wildlife.

Proposed Regulation Removal

    For the reasons described in the preamble, we hereby propose to 
amend subchapter B of chapter I, title 50 of the Code of Federal 
Regulations as set forth below:

PART 10--GENERAL PROVISIONS

0
1. The authority citation for part 10 continues to read as follows:

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

0
2. Remove Sec.  10.14.

Shannon A. Estenoz,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, 
Exercising the Delegated Authority of the Assistant Secretary for Fish 
and Wildlife and Parks.
[FR Doc. 2021-09700 Filed 5-6-21; 8:45 am]
BILLING CODE 4333-15-P