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Federal Register / Vol. 86, No. 25 / Tuesday, February 9, 2021 / Rules and Regulations
be amended, rescinded, delayed pending further review by the agency, or allowed to go into effect.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 FWSHQMB20180090, 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:
FWSHQMB20180090, U.S. Fish and Wildlife Service, MS: JAO/3W, 5275 Leesburg Pike, Falls Church, VA
220413803.
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 2022081050.
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. 8042. 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. 801a3.
Notwithstanding this statutory requirement, the MBTA rule was
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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 birdscodifying Solicitors Opinion M37050 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 Solicitors Opinion M37050, as contrary to the MBTA Natural Resources Defense Council v. U.S. Department of the Interior, No. 18CV4596 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: Natl Audubon Socy v. U.S. Fish and Wildlife Serv., 1:21cv 00448 S.D.N.Y. filed Jan. 19, 2021;
State of New York v. U.S. Dept of the Interior, 1:21cv00452 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
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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 Solicitors Opinion M37050, 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. 703705, 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, Canadas Minister of Environment and Climate Change summarized the Government of Canadas concerns in a public statement issued on December 18, 2020 https
www.canada.ca/en/environmentclimate-change/news/2020/12/ministerwilkinson-expresses-concern-overproposed-regulatory-changes-to-theunited-states-migratory-bird-treatyact.html. Minister Wilkinson stated the Government of Canadas 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 Canadas interpretation of the proposed changes . . . is that they are not consistent with the objectives of the Convention for the
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