[Federal Register Volume 86, Number 136 (Tuesday, July 20, 2021)]
[Notices]
[Pages 38354-38355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15368]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-HQ-MB-2018-0090; FF09M22000-212-FXMB1231099BPP0]
RIN 1018-BD76
Economic Analysis for Proposed Regulations Governing the Take of
Migratory Birds
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; document availability.
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SUMMARY: We announce the opportunity to review and comment on two
economic analysis documents prepared during development of the proposed
rule to revoke the January 7, 2021, rule governing the prohibitions on
incidental take under the Migratory Bird Treaty Act. This document
announces the availability of an initial regulatory flexibility
analysis and a regulatory impact analysis for public review.
DATES: Submit comments by August 19, 2021.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov/docket/FWS-HQ-MB-2018-0090/document. You may submit
a comment by clicking on ``Comment.'' 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: FWS-HQ-MB-2018-0090, U.S. Fish and Wildlife Service,
MS: JAO/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
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 202-208-1050.
SUPPLEMENTARY INFORMATION:
Background
On January 7, 2021, the Service published a final rule defining the
scope of the Migratory Bird Treaty Act (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, Solicitor's Opinion M-37050, which
concluded that the MBTA does not prohibit incidental take.
Following Council on Environmental Quality regulations that
implement the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), the Service prepared a final environmental impact statement
(EIS) for the January 7 rule: ``Final Environmental Impact Statement;
Regulations Governing Take of Migratory Birds,'' available on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 (https://www.regulations.gov/document/FWS-HQ-MB-2018-0090-14242). The
alternatives analyzed in that EIS cover the effects of interpreting the
MBTA both to include and exclude incidental take. We issued a record of
decision based on the final EIS. The Service also prepared a regulatory
impact analysis (RIA) to support the January 7 rule, available on
http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 (https://www.regulations.gov/document/FWS-HQ-MB-2018-0090-14241). That RIA
analyzed the economic impacts of three alternatives: A No Action
Alternative--Retain the existing legal interpretation under M-37050
that the MBTA excludes incidental take; Alternative A--Promulgate
regulations that define the scope of the MBTA to exclude incidental
take; and Alternative B--Promulgate regulations that define the scope
of the MBTA to include incidental take.
On May 7, 2021, the Service published in the Federal Register (86
FR 24573) a proposed rule seeking public comment on whether the Service
should revoke the January 7 rule, which defined the scope of the MBTA
as it applies to conduct resulting in the injury or death of migratory
birds protected by the MBTA. This proposed rule is available on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 (https://www.regulations.gov/document/FWS-HQ-MB-2018-0090-18943). For the May 7,
2021, proposed rule, we modified the analysis in the RIA for the
January 7 rule, given that the January 7 rule went into effect on March
8, 2021. The regulatory impact analysis presented for the proposed rule
revises the alternatives to reflect the current baseline with the
January 7 rule in effect. While the proposed rule does not itself
propose codification of a new regulation that interprets the MBTA to
prohibit incidental take, the effects of the removal of the January 7
rule are substantially similar to those described in Alternative B of
the RIA for the January 7 rule. Revoking the January 7 rule would have
the effect of reverting the government's interpretation of the MBTA to
prohibit incidental take consistent with longstanding agency practice
prior to publication of M-37050, subject to the exercise of enforcement
discretion and the applicable judicial precedent in a given
jurisdiction. Consistent with Alternative B, the Service will consider
further steps to implement the MBTA consistent with an interpretation
that it prohibits incidental take if it finalizes the proposed
revocation rule.
The Regulatory Flexibility Act of 1980 (RFA; 5 U.S.C. 601 et seq.)
requires agencies to evaluate the potential effects of their proposed
and final rules on small businesses, small organizations, and small
governmental jurisdictions. Section 603 of the RFA requires agencies to
prepare and make available for public comment an initial regulatory
flexibility analysis (IRFA) describing the impact of proposed rules on
small entities unless the agency can certify under section 605(b) that
the proposed rule, if promulgated, will not have a significant economic
impact on a substantial number of small entities. Section 603(b) of the
Act specifies that each IRFA must contain:
[ssquf] A description of the reasons why action by the agency is
being considered;
[ssquf] A succinct statement of the objectives of, and legal basis
for, the proposed rule;
[ssquf] A description--and, where feasible, an estimate of the
number--of small entities to which the proposed rule will apply;
[ssquf] A description of the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record; and
[ssquf] An identification, to the extent practicable, of all
relevant Federal rules
[[Page 38355]]
that may duplicate, overlap, or conflict with the proposed rule.
While the Service believes that certification under section 605(b)
of the RFA is likely appropriate in regard to the May 7, 2021, proposed
rule and consistent with our analysis of economic impacts under the
January 7 rule, we have developed an IRFA out of an abundance of
caution to ensure that economic impacts on small entities are fully
accounted for in this rulemaking process.
The Service is making available to the public for review and
comment both the revised RIA and the IRFA for the May 7, 2021, proposed
rule (86 FR 24573) to revoke the January 7, 2021, rule (86 FR 1134). As
noted above, the proposed rule is also available in the same docket for
reference when reviewing the RIA and IRFA. Comments on the RIA and IRFA
and any additional comments on the proposed rule will be addressed in
the final rule.
Public Comments
You may submit your comments and materials by one of the methods
listed in ADDRESSES. We will post your entire comment-- including your
personal identifying information--on 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.
Authority: This document is published under the authority of the
MBTA and section 603 of the RFA.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-15368 Filed 7-19-21; 8:45 am]
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