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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules Is not a significant regulatory action subject to Executive Order 13211 66 FR
28355, May 22, 2001;
Is not subject to requirements of Section 12d of the National Technology Transfer and Advancement Act of 1995 15 U.S.C. 272 note because application of those requirements would be inconsistent with the Clean Air Act;
and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898
59 FR 7629, February 16, 1994.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 65
FR 67249, November 9, 2000.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Volatile organic compounds.
Dated: May 3, 2021.
Cheryl Newton, Acting Regional Administrator, Region 5.
FR Doc. 202109686 Filed 5621; 8:45 am BILLING CODE 656050P

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service 50 CFR Part 10
Docket No. FWSHQMB20180090;
FF09M21200212FXMB1231099BPP0
RIN 1018BD76

Regulations Governing Take of Migratory Birds; Proposed Rule Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
AGENCY:

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

SUMMARY:

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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 FWSHQMB20180090, 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:
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 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, Solicitors Opinion M37050, 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 rules 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. 801a3
and 8042. 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
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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 rules 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 MBTAs 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 rules 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, M37041, 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 Solicitors Opinion M37050, 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. 703a. Solicitors
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