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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules
the rationale explained in the preamble.
As explained in the preamble, the Solicitors Opinion M37050 that formed the basis for the January 7 rule was overturned in court and has since been withdrawn by the Solicitors Office. By removing 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.
FWSHQMB20180090. 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 Departments 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. FWSHQMB20180090. 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 20222031, 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.
104121, 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. 605b. 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.
FWSHQMB20180090.
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 M37050. 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 M37050 and the January 7
rule.

TABLE 1DISTRIBUTION OF BUSINESSES WITHIN AFFECTED INDUSTRIES

NAICS industry description
NAICS code
Finfish Fishing
Crude Petroleum and Natural Gas Extraction
Drilling Oil and Gas Wells
Solar Electric Power Generation
Wind Electric Power Generation
Electric Bulk Power Transmission
Electric Power Distribution
Wireless Telecommunications Carriers except Satellite

114111
211111
213111
221114
221115
221121
221122
517312

Number of businesses
Small business size standard number of employees
1,210
6,878
2,097
153
264
261
7,557
15,845

a 20
1,250
1,000
250
250
500
1,000
1,500

Number of small businesses 1,185
6,868
2,092
153
263
214
7,520
15,831

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
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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
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