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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules 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 Solicitors Opinion M37050 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
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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 2BEST MANAGEMENT PRACTICES COSTS BY INDUSTRY 1
NAICS industry
Example of bird mitigation measure
Finfish Fishing NAICS
11411.

Changes in design of longline fishing hooks, changes in offal management practices, use of flagging or streamers on fishing lines.

Estimated cost

Crude Petroleum and Netting of oil pits and ponds
Natural Gas ExtracClosed wastewater systems.
tion NAICS 211111.

Costs are per vessel per year
$1,400 for thawed blue-dyed bait.
$150 for strategic offal discards.
$4,600 for Tori line.
$4,000 one-time cost for underwater setting chute.
$4,000 initial and $50 annual for side setting.
$130,680 to $174,240 per acre to net ponds..
Most netted pits are 14 to 12 acre.
Cost not available for wastewater systems.

Drilling Oil and Gas Wells NAICS
213111.

Netting of oil pits and ponds
Closed loop drilling fluid systems.

$130,680 to $174,240 per acre to net ponds..
Cost not available for closed loop drilling fluid systems, but may be a net cost savings in arid areas with water conservation requirements.

Solar Electric Power Generation NAICS
221114.
Wind Electric Power Generation NAICS
221115.

Preand post-construction bird surveys

No public comments received on January 7
rule to estimate costs.

Pre-construction adjustment of turbine locations to minimize bird mortality during operations.
Preand post-construction bird surveys.
Retrofit power poles to minimize eagle mortality.

Electric Bulk Power Transmission NAICS 221121.
Electric Power Distribution NAICS
221122.

Retrofit power poles to minimize eagle mortality.

Cost not available for adjustment of turbine construction locations.
$100,000 to $500,000 per facility per year for pre-construction site use and post-construction bird mortality surveys.
$7,500 per power pole with high variability of cost Annual nationwide labor cost to implement wind energy guidelines: $17.6M.
Annual nationwide non-labor cost to implement wind energy guidelines: $36.9M.
$7,500 per power pole with high variability of cost.

Retrofit power poles to minimize eagle mortality.

$7,500 per power pole with high variability of cost.

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Why data are not extrapolated to entire industry or small businesses No data available on fleet size.
No data available on how many measures are employed on each vessel.

Infeasible to net pits larger than 1 acre due to sagging.
Size distribution of oil pits is unknown.
Average number of pits per business is unknown.
Closed wastewater systems typically used for reasons other than bird mitigation.
Infeasible to net pits larger than 1 acre due to sagging.
Size distribution of oil pits is unknown.
Average number of pits per business is unknown.
Closed loop drilling fluid systems typically used for reasons other than bird mitigation.
High variability in number of wells drilled per year 21,200 in 2019.
New projects can vary from 100 to 5,000
acres in size, and mortality surveys may not scale linearly.
Data not available for adjustment of turbine construction locations.
High variability in survey costs and high variability in need to conduct surveys.
High variability in cost and need to retrofit power poles.

High variability in cost and need to retrofit power poles.
High variability in cost and need to retrofit power poles.

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