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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules 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 informationon 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.

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.

National Environmental Policy Act
Government to Government Relationship With Tribes In accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and the Department of the Interiors 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 Departments 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.

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.
FWSHQMB20180090. The alternatives analyzed in that EIS cover the effects of interpreting the MBTA to
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
Required Determinations
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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. 153144, 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. 1536a1. It further states each 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. 1536a2.
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 7a2.
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 nations 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
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