Regulations Governing Take of Migratory Birds; Revocation of Provisions, 54642-54656 [2021-21473]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 86, Number 189 (Monday, October 4, 2021)]
[Rules and Regulations]
[Pages 54642-54656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21473]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 10

[Docket No. FWS-HQ-MB-2018-0090; FF09M22000-212-FXMB1231099BPP0]
RIN 1018-BD76


Regulations Governing Take of Migratory Birds; Revocation of 
Provisions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: On January 7, 2021, we, the U.S. Fish and Wildlife Service 
(we, the Service, or USFWS), published a final rule (January 7 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 now revoke that rule for the reasons set 
forth below. The immediate effect of this final rule is to return to 
implementing the MBTA as prohibiting incidental take and applying 
enforcement discretion, consistent with judicial precedent and 
longstanding agency practice prior to 2017.

DATES: This rule is effective December 3, 2021.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, at 202-208-1050.

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, Solicitor's Opinion M-37050 (also referred 
to as the Jorjani Opinion), 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 
rule's 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. 801(a)(3) and 
804(2). 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 the Federal 
Register on February 5, 2021, and was published in the Federal Register 
on February 9, 2021 (86 FR 8715). In that 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 was 
necessary.
    After further review, we decided not to extend the effective date 
of the January 7 rule beyond March 8. We acknowledged that the January 
7 rule would 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 
determined that the most transparent and efficient path forward was 
instead to immediately propose to revoke the January 7 rule. The 
proposed rule provided the public with notice of our intent to revoke 
the January 7 rule, subject to our final decision after consideration 
of public comments.
    We have undertaken further review of the January 7 rule and 
considered public comments on our proposed revocation rule and 
determine that the January 7 rule does not reflect the best reading of 
the MBTA's 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 on August 11, 2020 that expressly rejected the rationale offered 
in the rule. The January 7 rule's reading of the MBTA also raises 
serious concerns with Canada, a United States' treaty partner, and for 
the migratory bird resources protected by the MBTA and underlying 
treaties. Accordingly, we revoke the January 7 rule and remove the 
regulation codifying the interpretation set forth in the January 7 rule 
at 50 CFR 10.14.
    At this time, we have not proposed replacement language for the 
Code of Federal Regulations. This rulemaking simply removes the current 
regulatory language. A Director's Order clarifying our current 
enforcement position was issued at the time of this final rule's 
publication and will come into effect on the effective date of this 
final rule (see DATES). We will introduce new policies in the future, 
including a proposed regulation codifying an interpretation of the MBTA 
that prohibits incidental take and potentially a regulatory framework 
for the issuance of permits to authorize incidental take. Concurrent 
with this final rule, we have also published an advance notice of 
proposed rulemaking requesting public input on potential alternatives 
for authorizing incidental take of migratory birds and a Director's 
Order clarifying our current enforcement position. These new policies 
and regulatory actions will fully implement the new National 
Environmental Policy Act (NEPA) Record of Decision (ROD) associated 
with this revocation rule, which is available at https://www.fws.gov/regulations/mbta/resources.
    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, M-37041, 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 
several decades of past agency practice and interpreted the scope of 
the MBTA to exclude any prohibition on the incidental take of migratory 
birds. In so doing, the January 7 rule codified Solicitor's Opinion M-
37050, 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. 703(a). Solicitor's Opinion M-37050 and the January 
7 rule argued that the prohibited terms listed in section 2 all refer 
to conduct directed at migratory birds, and that the broad preceding 
language, ``by any means, or in any manner,'' simply covers all 
potential methods and means of performing actions directed at

[[Page 54643]]

migratory birds and does not extend coverage to actions that 
incidentally take or kill migratory birds.
    As noted above, on August 11, 2020, a court rejected the 
interpretation set forth in Solicitor's Opinion M-37050 as contrary to 
the MBTA and vacated that opinion. Natural Res. Def. Council v. U.S. 
Dep't of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (``NRDC''). 
In late January 2021, two new lawsuits were filed that challenge the 
January 7 rule. Nat'l Audubon Soc'y v. U.S. Fish & Wildlife Serv., 
1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021); State of New York v. U.S. 
Dep't of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021). At 
the time the January 7 rule was published, the United States had filed 
a notice of appeal of the NRDC decision in the U.S. Court of Appeals 
for the Second Circuit. Since that time, the United States filed a 
stipulation to dismiss that appeal on February 25, 2021, and the Deputy 
Solicitor permanently withdrew M-37050 on March 8, 2021.
    The District Court's decision in NRDC expressly rejected the basis 
for the January 7 rule's conclusion that the statute does not prohibit 
incidental take. In particular, the court reasoned that the plain 
language of the MBTA's prohibition on killing protected migratory bird 
species ``at any time, by any means, and in any manner'' shows that the 
MBTA prohibits incidental killing. See 478 F. Supp. 3d at 481. Thus, 
the statute is not limited to actions directed at migratory birds as 
set forth in the January 7 rule. After closely examining the court's 
holding, we are persuaded that it advances the better reading of the 
statute, including that the most natural reading of ``kill'' is that it 
also prohibits incidental killing.
    The interpretation contained in the January 7 rule relies heavily 
on United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) 
(CITGO). The Fifth Circuit is the only Circuit Court of Appeals to 
expressly state that the MBTA does not prohibit incidental take. In 
CITGO, the Fifth Circuit held that the term ``take'' in the MBTA does 
not include incidental taking because ``take'' at the time the MBTA was 
enacted in 1918 referred in common law to ``[reducing] animals, by 
killing or capturing, to human control'' and accordingly could not 
apply to accidental or incidental take. Id. at 489 (following Babbitt 
v. Sweet Home Chapter Cmtys. for a Great Or., 515 U.S. 687, 717 (1995) 
(Scalia J., dissenting) (Sweet Home)). While we do not agree with the 
CITGO court's interpretation of the term ``take'' under the MBTA, we 
further note that CITGO does not provide legal precedent for construing 
``kill'' narrowly. The CITGO court's analysis is limited by its terms 
to addressing the meaning of the term ``take'' under the MBTA; thus, 
any analysis of the meaning of the term ``kill'' was not part of the 
court's holding.
    Moreover, as discussed below and even though it was dicta, we also 
disagree with the CITGO court's analysis of the term ``kill.''
    Although the CITGO court's holding was limited to interpreting 
``take,'' the court opined in dicta that the term ``kill'' is limited 
to intentional acts aimed at migratory birds in the same manner as 
``take.'' See 801 F.3d at 489 n.10. However, the court based this 
conclusion on two questionable premises.
    First, the court stated that ``kill'' has little if any independent 
meaning outside of the surrounding prohibitory terms ``pursue,'' 
``hunt,'' ``capture,'' and ``take,'' analogizing the list of prohibited 
acts to those of two other environmental statutes--the Endangered 
Species Act (ESA) (16 U.S.C. 1531 et seq.) and the Migratory Bird 
Conservation Act (16 U.S.C. 715 et seq.). See id. The obvious problem 
with this argument is that it effectively reads the term ``kill'' out 
of the statute; in other words, the CITGO court's reasoning renders 
``kill'' superfluous to the other terms mentioned, thus violating the 
rule against surplusage. See, e.g., Corley v. United States, 556 U.S. 
303, 314 (2009).
    Second, employing the noscitur a sociis canon of statutory 
construction (which provides that the meaning of an ambiguous word 
should be determined by considering its context within the words it is 
associated with), the Fifth Circuit argued that because the surrounding 
terms apply to ``deliberate acts that effect bird deaths,'' then 
``kill'' must also. See 801 F.3d at 489 n.10. The January 7 rule also 
relied heavily on this canon to argue that both ``take'' and ``kill'' 
must be read as deliberate acts in concert with the other referenced 
terms. Upon closer inspection though, the only terms that clearly and 
unambiguously refer to deliberate acts are ``hunt'' and ``pursue.'' 
Both the CITGO court and the January 7 final rule erroneously 
determined that ``capture'' can also only be interpreted as a 
deliberate act. This is not so. There are many examples of 
unintentional or incidental capture, such as incidental capture in 
traps intended for animals other than birds or in netting designed to 
prevent swallows nesting under bridges. Thus, the CITGO court's primary 
argument that ``kill'' only applies to ``deliberate actions'' rests on 
the fact that just two of the five prohibited actions unambiguously 
describe deliberate acts. The fact that most of the prohibited terms 
can be read to encompass actions that are not deliberate in nature is a 
strong indication that Congress did not intend those terms to narrowly 
apply only to direct actions.
    The NRDC court similarly rejected the January 7 rule's 
interpretation of the term ``kill'' and its meaning within the context 
of the list of actions prohibited by the MBTA. The court noted the 
broad, expansive language of section 2 prohibiting hunting, pursuit, 
capture, taking, and killing of migratory birds ``by any means or in 
any manner.'' 478 F. Supp. 3d at 482. The court reasoned that the plain 
meaning of this language can only be construed to mean that activities 
that result in the death of a migratory bird are a violation 
``irrespective of whether those activities are specifically directed at 
wildlife.'' Id. The court also noted that the Sweet Home decision 
relied upon by the CITGO court and the January 7 rule actually counsels 
in favor of a broad reading of the term ``kill,'' even assuming Justice 
Scalia accurately defined the term ``take'' in his dissent. The Sweet 
Home case dealt specifically with the definition of ``take'' under the 
ESA, which included the terms ``harm'' and ``kill.'' The majority in 
Sweet Home was critical of the consequences of limiting liability under 
the ESA to ``affirmative conduct intentionally directed against a 
particular animal or animals,'' reasoning that knowledge of the 
consequences of an act are sufficient to infer liability, including 
typical incidental take scenarios. Id. at 481-82.
    The NRDC court went on to criticize the use of the noscitur a 
sociis canon in Solicitor's Opinion M-37050 (a use repeated in the 
January 7 rule). The court reasoned that the term ``kill'' is broad and 
can apply to both intentional, unintentional, and incidental conduct. 
The court faulted the Solicitor's narrow view of the term and disagreed 
that the surrounding terms required that narrow reading. To the 
contrary, the court found the term ``kill'' to be broad and not at all 
ambiguous, pointedly noting that proper use of the noscitur canon is 
confined to interpreting ambiguous statutory language. Moreover, use of 
the noscitur canon deprives ``kill'' of any independent meaning, which 
runs headlong into the canon against surplusage as noted above. The 
court did not agree that an example provided by the government 
demonstrated that ``kill'' had independent meaning from ``take'' under 
the interpretation espoused by Solicitor's Opinion M-37050. By analogy, 
the court referenced

[[Page 54644]]

the Supreme Court's rejection of the dissent's use of the noscitur 
canon in Sweet Home, which similarly gave the term ``harm'' the same 
essential function as the surrounding terms used in the definition of 
``take'' under the ESA, denying it independent meaning. See id. at 484.
    The CITGO court, M-37050, and the January 7 rule also cited 
potential constitutional concerns in rejecting an interpretation of the 
MBTA that prohibits incidental take--specifically that this 
interpretation results in implementing the MBTA in a vague and 
overbroad manner thus violating the constitutional right to due 
process. Although the NRDC court did not address these concerns because 
it found the language of the MBTA unambiguous in the context of its 
application to incidental take, these concerns also do not counsel in 
favor of rejecting that interpretation even if the relevant language is 
considered ambiguous. The constitutional concerns cited in the January 
7 rule can be addressed simply by noting that the Act's reach within 
the context of incidental take is limited by applying the standard 
legal tools of proximate causation and foreseeability--as explained by 
the Tenth Circuit in United States v. Apollo Energies, 611 F.3d 679 
(10th Cir. 2010) and in M-37041--and by adopting policies and 
regulations that eliminate potential prosecutorial overreach and absurd 
results. Upon revocation of this rule, we issued a Director's Order 
clarifying our current enforcement position and will consider 
developing a regulatory authorization framework, as explained below. 
These policies will eliminate any potential constitutional concerns by 
providing the public with adequate notice of the scope of potential 
liability under the MBTA and how any potential violations may be 
avoided or authorized.
    In sum, after further review of the January 7 rule and the CITGO 
and NRDC decisions, along with the language of the statute, we now 
conclude that the interpretation of the MBTA set forth in the January 7 
rule and Solicitor's Opinion M-37050, which provided the basis for that 
interpretation, is not the construction that best accords with the 
text, purposes, and history of the MBTA. It simply cannot be squared 
with the NRDC court's holding that the MBTA's plain language 
encompasses the incidental killing of migratory birds. Even if the NRDC 
court's plain-language analysis were incorrect, the operative language 
of the MBTA is at minimum ambiguous, thus USFWS has discretion to 
implement that language in a manner consistent with the conservation 
purposes of the statute and its underlying Conventions that avoids any 
potential constitutional concerns. Reference to case law in general or 
legislative history can be interpreted to bolster either interpretation 
as demonstrated by the relevant analysis in the January 7 rule versus 
that of the initial Solicitor's Opinion, M-37041, thus is of limited 
assistance if the relevant language is indeed ambiguous. In any case, 
the Service certainly has discretion to revoke the January 7 rule given 
the legal infirmities raised by the NRDC court and the rule's reliance 
on the CITGO decision.
    To the extent that the primary policy justifications for the 
January 7 rule were resolving uncertainty and increasing transparency 
through rulemaking, we do not consider these concerns to outweigh the 
legal infirmities of the January 7 rule or the conservation purposes of 
the statute and its underlying Conventions. Interpreting the statute to 
exclude incidental take is not the reading that best advances these 
purposes or provides the most natural reading of section 2, which is 
underscored by the following additional reasons for revoking the 
current regulation.
    First, the January 7 rule is undermined by the 2002 legislation 
authorizing military-readiness activities that incidentally take or 
kill migratory birds. In that legislation, Congress temporarily 
exempted ``incidental taking'' caused by military-readiness activities 
from the prohibitions of the MBTA; required the Secretary of Defense to 
identify, minimize, and mitigate the adverse effect of military-
readiness activities on migratory birds; and directed USFWS to issue 
regulations under the MBTA creating a permanent exemption for military-
readiness activities. Bob Stump National Defense Authorization Act for 
Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section 315 
(2002), 116 Stat. 2509 (Stump Act). This legislation was enacted in 
response to a court ruling that had enjoined military training that 
incidentally killed migratory birds. Ctr. for Biological Diversity v. 
Pirie, 191 F. Supp. 2d 161 and 201 F. Supp. 2d 113 (D.D.C. 2002), 
vacated on other grounds sub nom. Ctr. for Biological Diversity v. 
England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003). Notably, 
Congress did not amend the MBTA to define the terms ``take'' or 
``kill.'' Instead, Congress itself uses the term ``incidental take'' 
and provides that the MBTA ``shall not apply'' to such take by the 
Armed Forces during ``military-readiness activities.'' Moreover, 
Congress limited the exemption only to military-readiness activities, 
i.e., training and operations related to combat and the testing of 
equipment for combat use. It expressly excluded routine military-
support functions and the ``operation of industrial activities'' from 
the exemption afforded by the 2002 legislation, leaving such non-
combat-related activities fully subject to the prohibitions of the Act. 
Even then, the military-readiness incidental take carve-out was only 
temporarily effectuated through the statute itself. Congress further 
directed the Department of the Interior (DOI or the Department) ``to 
prescribe regulations to exempt the Armed Forces for the incidental 
taking of migratory birds during military readiness activities.''
    This would be an odd manner in which to proceed to address the 
issue raised by the Pirie case if Congress' governing understanding at 
the time was that incidental take of any kind was not covered by the 
Act. Congress simply could have amended the MBTA to clarify that 
incidental take is not prohibited by the statute or, at the least, that 
take incidental to military-readiness activities is not prohibited. 
Instead, Congress limited its amendment to exempting incidental take 
only by military-readiness activities, expressly excluded other 
military activities from the exemption, and further directed DOI to 
issue regulations delineating the scope of the military-readiness 
carve-out from the incidental-take prohibitions of the Act. All of 
these factors indicate that Congress understood that the MBTA's take 
and kill prohibitions included what Congress itself termed ``incidental 
take.''
    In arguing that Congress's authorization of incidental take during 
military-readiness activities did not authorize enforcement of 
incidental take in other contexts, the January 7 rule cites the CITGO 
court's conclusion that a ``single carve-out from the law cannot mean 
that the entire coverage of the MBTA was implicitly and hugely 
expanded.'' CITGO, 801 F.3d at 491. It is true that the Stump Act did 
not, by its terms, authorize enforcement of incidental take in other 
contexts. It clearly could not do anything of the sort, based on its 
narrow application to military-readiness activities. Rather, the 
logical explanation is that Congress considered that the MBTA already 
prohibited incidental take (particularly given USFWS's enforcement of 
incidental take violations over the prior three decades) and there was 
no comprehensive regulatory mechanism available to authorize that take. 
Thus, it was necessary to temporarily exempt incidental take pursuant 
to military-readiness activities to address the Pirie

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case and direct USFWS to create a permanent exemption. This conclusion 
is supported by the fact that Congress specifically stated in the Stump 
Act that the exemption did not apply to certain military activities 
that do not meet the definition of military readiness, including 
operation of industrial activities and routine military-support 
functions.
    On closer inspection, the CITGO court's analysis of the purposes 
behind enactment of the military-readiness exemption is circular. 
Assuming the military-readiness exemption is necessary because the MBTA 
otherwise prohibits incidental take only represents an implicit and 
huge expansion of coverage under the MBTA if it is assumed that the 
statute did not already prohibit incidental take up to that point. But 
Congress would have had no need to enact the exemption if the MBTA did 
not--both on its terms and in Congress's understanding--prohibit 
incidental take. The adoption of a provision to exempt incidental take 
in one specific instance is merely a narrowly tailored exception to the 
general rule and provides clear evidence of what Congress understood 
the MBTA to prohibit.
    Second, further consideration of concerns expressed by one of our 
treaty partners counsels in favor of revoking the January 7 rule. The 
MBTA implements four bilateral migratory bird Conventions with Canada, 
Mexico, Russia, and Japan. See 16 U.S.C. 703-705, 712. The Government 
of Canada communicated its concerns with the January 7 rule both during 
and after the rulemaking process, including providing comments on the 
environmental impact statement (EIS) associated with the rule.
    After the public notice and comment period had closed, Canada's 
Minister of Environment and Climate Change summarized the Government of 
Canada's concerns in a public statement issued on December 18, 2020 
(https://www.canada.ca/en/environment-climate-change/news/2020/12/minister-wilkinson-expresses-concern-over-proposed-regulatory-changes-to-the-united-states-migratory-bird-treaty-act.html). Minister 
Wilkinson voiced the Government of Canada's concern regarding ``the 
potential negative impacts to our shared migratory bird species'' of 
allowing the incidental take of migratory birds under the MBTA rule and 
``the lack of quantitative analysis to inform the decision.'' He noted 
that the ``Government of Canada's interpretation of the proposed 
changes . . . is that they are not consistent with the objectives of 
the Convention for the Protection of Migratory Birds in the United 
States and Canada.'' Additionally, in its public comments on the draft 
EIS for the MBTA rule, Canada stated that it believes the rule ``is 
inconsistent with previous understandings between Canada and the United 
States (U.S.), and is inconsistent with the long-standing protections 
that have been afforded to non-targeted birds under the Convention for 
the Protection of Migratory Birds in the United States and Canada . . . 
as agreed upon by Canada and the U.S. through Article I. The removal of 
such protections will result in further unmitigated risks to vulnerable 
bird populations protected under the Convention.'' After further 
consideration, we have similar concerns to those of our treaty partner, 
Canada.
    The protections for ``non-targeted birds'' noted by the Canadian 
Minister are part and parcel of the Canada Convention, as amended by 
the Protocol between the United States and Canada Amending the 1916 
Convention for the Protection of Migratory Birds in Canada and the 
United States, which protects not only game birds hunted and trapped 
for sport and food, but also nongame birds and insectivorous birds. For 
instance, the preamble to the Convention declares ``saving from 
indiscriminate slaughter and of insuring the preservation of such 
migratory birds as are either useful to man or are harmless'' as its 
very purpose and declares that ``many of these species are . . . in 
danger of extermination through lack of adequate protection during the 
nesting season or while on their way to and from their breeding 
grounds.'' Convention between the United States and Great Britain (on 
behalf of Canada) for the Protection of Migratory Birds, 39 Stat. 1702 
(Aug. 16, 1916). Thus, whether one argues that the language of section 
2 of the MBTA plainly prohibits incidental killing of migratory birds 
or is ambiguous in that regard, an interpretation that excludes 
incidental killing is difficult to square with the express conservation 
purposes of the Canada Convention. Moreover, until recently there had 
been a longstanding ``mutually held interpretation'' between the two 
treaty partners that regulating incidental take is consistent with the 
underlying Convention, as stated in an exchange of Diplomatic Notes in 
2008. While Canada expressed its position before the final rule 
published on January 7, upon review, we now have determined that the 
concerns raised by the United States' treaty partner counsel in favor 
of revocation of the rule.
    In addition to the Canada Convention, the January 7 rule may also 
be inconsistent with the migratory bird conventions with Mexico, Japan, 
and Russia. The Japan and Russia Conventions both broadly call for the 
parties to prevent damage to birds from pollution. See Convention 
between the Government of the United States of America and the 
Government of Japan for the Protection of Migratory Birds and Birds in 
Danger of Extinction, and Their Environment, Mar. 4, 1972, 25 U.S.T. 
3329 (Japan Convention); Convention between the United States of 
America and the Union of Soviet Socialist Republics Concerning the 
Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, 
29 U.S.T. 4647 (Russia Convention). The Protocols amending the Canada 
and Mexico Conventions contain similar language calling for the parties 
to seek means to prevent damage to birds and their environment from 
pollution. See Protocol between the Government of the United States and 
the Government of Canada Amending the 1916 Convention Between the 
United Kingdom and the United States of America for the Protection of 
Migratory Birds, Dec. 14, 1995, S. Treaty Doc. No. 104-28, T.I.A.S. 
12721; Protocol Between the Government of the United States of America 
and the Government of the United Mexican States Amending the Convention 
for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S. 
Treaty Doc. No. 105-26.
    Some of the relevant provisions include article IV of the Protocol 
with Canada, which states that each party shall use its authority to 
``take appropriate measures to preserve and enhance the environment of 
migratory birds,'' and in particular shall ``seek means to prevent 
damage to [migratory] birds and their environments, including damage 
resulting from pollution''; article I of the Mexico Convention, which 
discusses protecting migratory birds by ``means of adequate methods[. . 
.]''; article VI(a) of the Japan Convention, which provides that 
parties shall ``[s]eek means to prevent damage to such birds and their 
environment, including, especially, damage resulting from pollution of 
the seas''; and articles IV(1) and 2(c) of the Russia Convention, which 
require parties to ``undertake measures necessary to protect and 
enhance the environment of migratory birds and to prevent and abate the 
pollution or detrimental alteration of that environment,'' and, in 
certain special areas, undertake, to the maximum extent possible, 
``measures necessary to protect the ecosystems in those special areas . 
. . against pollution, detrimental

[[Page 54646]]

alteration and other environmental degradation.''
    The January 7 rule eliminates a source of liability for pollution 
that incidentally takes and kills migratory birds--a position that is 
difficult to square with the mutually agreed upon treaty provisions 
agreeing to prevent damage to birds from pollution. The January 7 rule 
does not directly affect natural resource damage assessments conducted 
under the Comprehensive Environmental Response Compensation and 
Liability Act, the Oil Pollution Act, and the Clean Water Act to 
determine compensation to the public for lost natural resources and 
their services from accidents that have environmental impacts, such as 
oil spills. However, for oil spills such as the BP Deepwater Horizon 
Gulf oil spill and the Exxon Valdez oil spill in Alaska, significant 
penalties were levied in addition to those calculated under natural 
resource damage assessments based on incidental-take liability under 
the MBTA. Those fines constituted a large proportion of the total 
criminal fines and civil penalties associated with historical 
enforcement of incidental take violations. As noted in the EIS, the 
January 7 rule eliminates the Federal Government's ability to levy 
similar fines in the future, thereby reducing the deterrent effect of 
the MBTA and the Federal Government's ability to mitigate some of the 
harm by directing these fines to the North American Wetlands 
Conservation Act fund for the protection and restoration of wetland 
habitat for migratory birds.
    In sum, the issues raised by the Government of Canada raise 
significant concerns regarding whether the January 7 rule is consistent 
with the Canada Convention, and questions also remain regarding that 
rule's consistency with the other migratory bird Conventions. We note 
as well that the primary policy justifications for the January 7 rule 
were resolving uncertainty and increasing transparency through 
rulemaking. These concerns, however, do not outweigh the legal 
infirmities of the January 7 rule or the conservation objectives 
described above. In any case, the Service has issued a Director's Order 
concurrently with this rule that explains in more detail our 
enforcement priorities regarding incidental take of migratory birds and 
published an advance notice of proposed rulemaking to seek public input 
on an authorization framework. Both actions will provide the public 
with more clarity and transparency regarding compliance with the MBTA. 
On these bases, in addition to the legal concerns raised above, we 
revoke the January 7 MBTA rule.

Public Comments

    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 final rule published on January 7, 2020, that defined 
the scope of the MBTA as it applies to conduct resulting in the injury 
or death of migratory birds protected by the Act. We solicited public 
comments on the proposed rule for 30 days, ending on June 7, 2021. We 
received 238 comments. Many comments included additional attachments 
(e.g., scanned letters, photographs, and supporting documents). These 
comments represented the views of multiple State and local government 
agencies, private industries, nongovernmental organizations (NGOs), and 
private citizens. In addition to the individual comments received, 3 of 
those comments were petitions that contained a total of 42,610 
individual signatures supporting the revocation of the January 7 rule. 
We solicited public comments on the following topics:
    1. Whether we should revoke the rule, as proposed, 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.
    The following text presents the substantive comments we received 
and the Service's response to them.
    Comment: There are other statutes besides the MBTA that protect 
birds, including NEPA, that industry would still have to comply with, 
and birds would continue to benefit from those protections. State and 
local laws also prevent the unnecessary killing of birds; therefore, it 
is unnecessary for the Service to revoke the January 7 rule.
    Service Response: The Service recognizes that there are numerous 
reasons why an entity would continue to implement best practices, 
including other Federal or State laws, industry standard practices, 
public perception, etc. These mechanisms could reduce impacts to birds 
in some circumstances, but do not provide the uniform conservation 
protections that Federal regulation can provide. In any case, proper 
interpretation of the MBTA does not change based on whether other 
statutes or practices may be protective of migratory birds. Rather, the 
interpretation must be guided by the MBTA itself. Here, the Service 
believes the best path forward is to revoke the January 7 rule as it 
presents an interpretation that is not the best interpretation of the 
MBTA.
    Comment: Several commenters stated that they were against 
revocation of the rule because it would create uncertainty by returning 
to inconsistent enforcement discretion when incidental take occurs 
under the MBTA.
    Service Response: The Service acknowledges that this final rule, by 
its terms, simply revokes the January 7 rule by removing the regulatory 
language at 50 CFR 10.14 and does not purport to replace that 
regulation with new regulatory language at this time. However, upon 
revocation of the rule, the Service expects to develop a comprehensive 
regulatory framework governing MBTA compliance and enforcement to 
reduce public uncertainty and provide consistent implementation of the 
MBTA. To begin that process, we issued an advanced notice of proposed 
rulemaking concurrently with publication of this final rule that 
requests public input on a potential regulatory framework for 
authorizing incidental take under the MBTA. In addition, while 
certainty in application of the law is a significant consideration, 
ultimately the Service must interpret and implement the MBTA in a 
manner that best effectuates Congress' intent. For the reasons 
explained herein, the Service believes that the January 7 rule does not 
reflect the best reading of the MBTA's text, purpose, and history and 
therefore should be revoked.
    Comment: Several commenters stated they were against the revocation 
of the final rule as it would create undue economic burden and expose 
industry to prosecution.
    Service Response: The Service acknowledges that implementing best 
practices to reduce bird mortality from some industry sectors can 
include increased costs. However, during the January 7 rulemaking 
process, most industry sectors informed the Service that they would 
continue to implement best practices regardless of our regulatory 
position. Thus, we do not expect a significant increase in economic 
burden on these industries. Moreover, while consideration of regulatory 
burdens is undoubtedly important, ultimately the Service's 
interpretation of the MBTA must be guided by the MBTA itself.
    Comment: The proposed rule does not reconcile varying court 
decisions or discuss how the Service would address MBTA enforcement.
    Service Response: Upon revocation of the January 7 rule, the 
Service will apply enforcement discretion and not prioritize 
investigating projects that

[[Page 54647]]

implement best practices to avoid and minimize impacts to migratory 
birds. Enforcement of the MBTA would be applied consistent with 
applicable case law. As noted in the proposed rule preamble, reference 
to case law can be used to bolster either interpretation as 
demonstrated by the relevant analysis in the January 7 rule concluding 
that case law bolsters the interpretation that the MBTA does not 
prohibit incidental take versus the opposite conclusion in the initial 
Solicitor's Opinion, M-37041. Thus, case law is of limited assistance 
and cannot be reconciled in adopting either interpretation. On balance, 
we conclude that case law generally favors an interpretation that the 
MBTA prohibits incidental take as explained in M-37041, but we 
acknowledge there are cases, such as the CITGO case in the Fifth 
Circuit Court of Appeals, that adopt the opposite interpretation. In 
the longer term, the Service expects to implement a comprehensive 
regulatory framework governing MBTA compliance and enforcement to 
reduce public uncertainty and provide consistent implementation of the 
MBTA.
    Comment: Some commenters stated that the rule should not be revoked 
until an enforcement policy, general permit system, or de minimis 
standard for incidental take is developed.
    Service Response: Given the Service's conclusion that the January 7 
rule does not reflect the best interpretation of the MBTA, the Service 
decided that the appropriate initial step is to immediately revoke that 
rule before the Service considers a replacement policy or regulation. 
The Service issued a Director's Order concurrently with this final rule 
that clarifies how the MBTA will be implemented and enforced after this 
final rule becomes effective. The Service will consider developing an 
appropriate regulatory framework to authorize incidental take 
consistent with application of best management practices in the future.
    Comment: Several commenters stated that they were neutral regarding 
revocation of the rule, but that if the Service finalized revocation, 
it should then promulgate a rule that creates a permitting program so 
that industry would have a means of compliance and legal certainty.
    Service Response: Upon revocation of the January 7 rule, the 
Service will evaluate options to develop a formal approach to authorize 
compliance with the MBTA in the context of incidental take of migratory 
birds.
    Comment: Some commenters stated they will continue to use best 
practices to avoid and minimize bird mortality regardless of the 
regulatory approach adopted by the Service.
    Service Response: The Service acknowledges and appreciates industry 
efforts to reduce impacts on migratory birds regardless of MBTA policy 
positions. The Service envisions any future regulatory approach to 
authorizing incidental take will be rooted in the implementation of 
industry best practices. We will continue to work with industry to 
provide guidance on the appropriateness and implementation of those 
best practices.
    Comment: Some commenters stated that, while reversing the rule was 
a positive first step, it must be followed by rulemaking that 
establishes an incidental take permitting system.
    Service Response: Upon revocation of the January 7 rule, the 
Service will evaluate options for developing a regulatory approach to 
resolve any uncertainties pertaining to MBTA compliance. In the short 
term, the Service issued a Director's Order clarifying our current 
enforcement position and an advanced notice of proposed rulemaking to 
inform development of a longer-term proposal to implement an incidental 
take authorization framework.
    Comment: The Service should revoke the January 7 rule and return to 
the previous interpretation that incidental take is prohibited by the 
MBTA because that interpretation is more aligned with judicial 
precedent.
    Service Response: We agree that the interpretation that incidental 
take is prohibited under the MBTA is consistent with judicial precedent 
in many jurisdictions and is the best interpretation of the law. Upon 
revocation of the January 7 rule, we will return to our prior 
interpretation that the MBTA prohibits incidental take. However, we 
will also engage in rulemaking to codify the interpretation that the 
MBTA prohibits incidental take to provide the public with greater 
clarity regarding what violations of the MBTA we will prioritize for 
enforcement.
    Comment: One commenter argued that if the January 7 rule is 
revoked, all contracts affected by reliance on the January 7 rule need 
to be grandfathered to avoid impacting the terms under which those 
contracts were negotiated.
    Service Response: Any contracts entered into that may be affected 
by reliance on the January 7 rule are not within the Service's 
jurisdiction to address. The Service does not have the authority to 
mandate any alteration of private contracts, nor does it believe it 
necessary to create a regulatory carve-out for contracts negotiated in 
good faith and placed into effect during the period between March 8 
when the January 7 rule went into effect and the date this final rule 
will become effective (see DATES). We will continue to work with 
companies on a case-by-case basis and encourage implementation or 
continued use of best management practices that avoid or minimize 
incidental take of migratory birds. We will consider any potential 
effect of reliance on the short-term applicability of the January 7 
rule in working with those companies and in prioritizing our 
enforcement resources.
    As noted above, the Service requested comments on specific reliance 
interests that might be affected by revocation of the rule. We received 
several comments such as this one that generally stated how reliance 
interests may be affected by revoking the rule but without providing 
specific instances to corroborate those statements. No commenters 
identified any specific circumstances or situations where entities had 
relied on the January 7 rule and as a result their reliance interest 
would be affected by the rule's revocation. Moreover, many commenters 
noted that entities would continue to implement best management 
practices and conservation measures for a variety of reasons despite 
the January 7 rule, including compliance with federal and state 
regulations other than the MBTA.
    Comment: Revocation of the January 7 rule is appropriate because 
birds provide substantial economic benefits via recreational bird 
watching/hunting and fines for MBTA violations contribute to bird 
conservation actions.
    Service Response: The Service agrees that birds provide significant 
economic benefits for bird watching, bird hunting, and general 
enjoyment by the American public. Birds also provide critical 
ecosystems services reducing the costs and need for pest control, 
pollination, and other services beneficial to humans.
    Comment: Many commenters supported revocation of the January 7 rule 
and urged the Service to work with States and industries to find best 
practices to balance industry needs and bird protections.
    Service Response: The Service has and will continue to work with 
Federal and State agencies, NGOs, and industry to identify, develop, 
and evaluate actions that either avoid or minimize the impacts to 
migratory birds. The Service will continue to develop policies and 
regulations to further develop this cooperative approach. This approach 
will provide a resilient, long-term framework for implementing the MBTA 
that will provide long-term certainty to the regulated community

[[Page 54648]]

and improved conservation of migratory birds.
    Comment: Revoking the January 7 rule is best for bird conservation 
and reduces the chance that a species may eventually need to be listed 
as threatened or endangered.
    Service Response: The Service agrees that working with Federal and 
State agencies, NGOs, and industry to avoid and minimize the incidental 
take of migratory birds is critical to the conservation of migratory 
birds and may reduce the number of bird species that require protection 
under the Endangered Species Act in the long term.
    Comment: Existing science supports leaving the January 7 rule in 
place because predators are a significant source of threats to 
migratory birds according to a Service website (https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php). Thus, the Service should 
focus its efforts and use scientifically sound conservation and 
policies to address those impacts.
    Service Response: The Service agrees that predators are a source of 
mortality for birds. However, the rule the Service revokes applies to 
the incidental take of birds caused directly by human activities, not 
to predator impacts in general. Incidental take of birds is a leading 
cause of avian mortality, and the Service's revocation of the January 7 
rule will help reduce the effects of incidental take on migratory bird 
populations. Moreover, proper interpretation of the MBTA does not 
change based on whether non-human factors adversely impact migratory 
birds. Rather, the interpretation must be guided by the MBTA itself.
    Comment: The January 7 rule should be revoked because the MBTA has 
proven to be a highly successful tool for co-management, regulation, 
and mitigation of negative effects on migratory bird populations across 
State and international borders, strengthening the collaborative 
conservation efforts between State, Tribal, territorial, provincial, 
and Federal agencies as well as the four regional Flyway Councils. 
State agencies and their conservation partners have long expressed the 
need for the protections this rule would provide.
    Service Response: The Service agrees the MBTA is one of the best 
tools for the conservation and management of migratory birds and looks 
forward to working with all stakeholders in developing additional steps 
to clarify its implementation of the MBTA in the context of incidental 
take. The Service will provide the public with opportunities to comment 
on reasonable implementation alternatives throughout that process.
    Comment: Repeal of the January 7 rule would greatly expand the 
Service's interpretation of the MBTA and expose incidental-take 
violations to criminal prosecution.
    Service Response: The commenter is correct that revoking the 
January 7 rule will allow for prosecution of actions that incidentally 
take migratory birds. The Service will rely on judicious use of 
enforcement discretion to determine whether to enforce the statute in 
these situations as it did for decades prior to the recent change in 
interpretation codified by the January 7 rule.
    Comment: The interpretation of the MBTA codified at 50 CFR 10.14 by 
the January 7 rule better accords with the language and purpose of the 
MBTA as passed by Congress. Focusing on the plain language of the MBTA 
and appropriate canons of statutory construction results in an 
interpretation consistent with that codified at 50 CFR 10.14, which 
thus should not be revoked.
    Service Response: We disagree with the commenter for the reasons 
spelled out in the preamble to this final rule. Applying canons of 
statutory construction to the relevant language in the MBTA has 
resulted in courts reaching opposite conclusions regarding whether the 
plain language of the MBTA prohibits or excludes incidental take of 
migratory birds.
    Comment: The Service should consult with other Federal agencies, 
including the Department of Justice to ensure that this rulemaking is 
constitutional.
    Service Response: This rulemaking has undergone a rigorous 
interagency review process, as required by Executive Order 12866.
    Comment: The Service's interpretation of the MBTA is not entitled 
to Chevron deference because Chevron deference is an unconstitutional 
abdication of the judicial role of independent judgment, violates the 
separation of powers, and contravenes due process.
    Service Response: The Service is revoking the January 7 rule 
because it does not represent the best interpretation of the MBTA, 
whether the operative statutory language is plain or ambiguous. We do 
not opine here on the constitutionality of Chevron deference. Any 
concerns about whether the case giving rise to the concept of Chevron 
deference was correctly decided are both outside the Service's 
jurisdiction under the MBTA and, more to the point, not directly 
relevant to our decision to revoke the January 7 rule.
    Comment: The proposed rule incorrectly focuses on five of the acts 
prohibited by the MBTA in section 703. But section 703 prohibits 22 
acts, almost all of which involve deliberate acts. Thus, application of 
the noscitur a sociis canon strongly favors interpreting the prohibited 
acts to involve deliberate actions. Even if ``take,'' ``kill,'' and 
even ``capture'' are ambiguous terms that could apply to both direct 
and indirect actions, there are 19 other terms that apply to direct 
actions; therefore, the most natural reading is that Congress intended 
all 22 terms to apply to deliberate acts directed at migratory birds.
    Service Response: As both the proposed rule, the January 7 rule, 
and the Jorjani Opinion all conclude, the operative terms that are 
relevant to determining whether the MBTA prohibits incidental take are 
the five terms ``hunt, pursue, capture, kill, and take.'' The remaining 
17 terms all relate to activities that comprise commercial use of 
migratory birds, which necessarily entail an act directed at migratory 
birds given they all require possession or attempted possession. The 17 
actions related to commercial use are simply not relevant to whether 
the MBTA prohibits incidental taking or killing of migratory birds. 
Those actions are only relevant once a migratory bird has already been 
taken, captured, or killed. Given that at least two, and likely three, 
of the five operative terms are ambiguous and could apply to direct or 
incidental actions, application of the noscitur a sociis canon to 
bolster either interpretation is highly suspect.
    Comment: The Service's reliance on the military-readiness 
authorization mandated by the Stump Act to demonstrate that Congress 
interpreted the MBTA at that time to prohibit incidental take is 
misplaced. The Stump Act stated that the MBTA does not apply to 
incidental take during military-readiness activities in the first place 
and mandated that the Service issue a regulation acknowledging that 
such activities are not subject to the MBTA. The Stump Act provides for 
the continued exemption of any incidental take caused by military-
readiness activities rather than providing for an authorization of 
incidental take by the Service.
    Service Response: This argument relies on a selective reading of 
the Stump Act. The Stump Act's statement that the MBTA does not apply 
to military-readiness activities was not a general statement of the 
MBTA's applicability at that time, but instead a specific and temporary 
exemption for incidental take caused by military-

[[Page 54649]]

readiness activities until the Service developed and published a rule 
specifically exempting those activities. Far from proving that the 
Service never had authority to prohibit incidental take caused by 
military-readiness activities in the first place, the explicit 
temporary nature of the exemption strongly implies the exact opposite. 
Moreover, the rule promulgated by the Service with the concurrence of 
the Secretary of Defense as required by the Stump Act calls for 
suspension or withdrawal of the authorization if certain conditions 
occur. Thus, the permanence of the exemption is conditional. The Stump 
Act describes the relevant regulations to be prescribed as both 
``authorizing incidental take'' and ``to exempt the Armed Forces for 
the incidental take of migratory birds.'' Thus, it is certainly 
reasonable to infer that the Service may condition that take as it did 
in the military-readiness rule whatever label is given to that 
authority.
    Comment: The proposed revocation rule suggests that the Stump Act's 
explicit authorization of incidental take during military readiness 
activities ``reflects a change in Congress' `governing understanding' 
of the MBTA, and that henceforth incidental take from any activity 
other than military readiness activities could be criminally 
prosecuted.''
    Service Response: This is a mischaracterization of the proposed 
rule that echoes the Fifth Circuit's analysis of the Stump Act in 
CITGO. The Service does not argue that the military-readiness 
authorization represented a change in congressional interpretation of 
the MBTA that suddenly applied incidental take prohibitions to all 
activities not involving military readiness. In fact, the opposite is 
true. The Stump Act makes clear that Congress already interpreted the 
MBTA to prohibit incidental take and the military-readiness exception 
would simply not have been necessary if Congress had instead considered 
the MBTA to exclude incidental take at that time. If Congress had 
considered the scope of the MBTA to exclude incidental take at the time 
and simply wanted to shield the military from further litigation over 
its military-readiness activities, it could easily have signaled that 
intent and clarified that it did not consider the MBTA to prohibit 
incidental take. The specific exceptions from the authorization in the 
legislation for non-readiness activities such as the routine operation 
of installation operating support functions are best understood not to 
support a reading that the authorization was intended as a narrow 
exemption to shield the military from further MBTA litigation even 
though Congress considered the MBTA not to prohibit incidental take.
    Comment: If the Service revokes the January 7 rule, it will be free 
to use the responsible-corporate-officer doctrine to bring criminal 
charges against corporate executives whose companies may cause 
incidental harm to migratory birds.
    Service Response: Decisions regarding whether to file criminal 
charges are made by the Department of Justice, in accordance with 
publicly available policies of that Department. In the decades prior to 
the January 7 rule, the Service is not aware of charges having been 
brought by the Department of Justice against corporate executives for 
incidental take, under the MBTA, caused by their companies.
    Comment: Application of the MBTA to incidental take is inconsistent 
with the Service's general regulation defining ``take'' to mean ``to 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt 
[those acts].'' 50 CFR 10.12. Each of these words connotes an active 
effort to harm a migratory bird and thus excludes actions that may 
incidentally and indirectly lead to such harm.
    Service Response: This argument is simply an extension of the 
noscitur a sociis argument that relies on interpreting terms such as 
``kill,'' ``wound,'' and ``capture'' as unambiguously referring to acts 
directed at migratory birds because of their placement in a list of 
other terms that can only be construed as directed at birds. However, 
the fact that those terms could equally apply to incidental conduct 
undermines that argument. Moreover, the Service clearly did not 
interpret its own regulation in that manner when it enforced the MBTA 
in the context of incidental take for over 40 years prior to 
publication of the Jorjani Opinion. Moreover, Executive Order 13186, 
which interprets the term ``take'' in 50 CFR 10.12 to apply to both 
intentional and unintentional take, has not been amended or repealed 
since its issuance in 2001 (66 FR 3853, January 17, 2001). The 
Service's interpretation of 50 CFR 10.12 to apply to incidental taking 
and killing in the context of the MBTA has been longstanding prior to 
2017, and thus, the revocation rule is not breaking new ground and is 
not inconsistent with that regulation.
    Comment: The revocation of an existing rule requires an 
environmental assessment under NEPA. Because the Service drafted an EIS 
to accompany the original rule after determining it was a major Federal 
action, revocation is also a major Federal action requiring further 
NEPA review.
    Service Response: Revocation of the existing rule and a return to 
the Service's prior interpretation of the MBTA is addressed in the EIS 
associated with the January 7 rule as Alternative B. We have issued a 
new Record of Decision that reflects our selection of Alternative B and 
describes how we will implement that alternative. Supplementation of 
the prior EIS is not necessary as none of the criteria for 
supplementation have been met. Our determination that supplementing the 
prior EIS is not necessary is explained in more detail in the Record of 
Decision (ROD) associated with this revocation rule, which is available 
at https://www.fws.gov/regulations/mbta/resources.
    Comment: It is improper to ignore three different circuit court 
conclusions that conclude the MBTA does not prohibit incidental take 
and instead rely on a district court decision.
    Service Response: As explained in the preamble to this final rule, 
we have not ignored the conclusions of any of the circuit courts that 
have ruled on this issue. One circuit court has clearly held that the 
MBTA does not prohibit incidental take, and two circuit courts have 
held that it does. Other circuit courts have opined on the issue in 
dicta. We have assessed all these court decisions in reaching our 
decision to revoke the January 7 rule.
    Comment: The Service should not write a regulation to declare the 
scope and meaning of a statute over 100 years after its enactment. The 
Service should revoke the January 7 rule but should not replace it with 
a regulation codifying a different interpretation of the MBTA.
    Service Response: While we agree with the commenter that the 
January 7 rule should be revoked, we do not agree that the Service 
lacks authority to interpret the MBTA. Congress specifically provided 
the Secretary of the Interior with the authority to implement the MBTA. 
The Secretary has delegated that authority to the Service. 
Implementation of legislation often requires an agency to clarify 
language in the statute that is ambiguous and impliedly left to the 
agency's discretion to interpret and clarify. An agency may also 
clarify the plain meaning of a statute if it determines there is no 
ambiguity.
    Comment: Revoking the January 7 rule would result in significant 
uncertainty and potentially harsh and inequitable consequences for key 
sectors of U.S. industry through a return to uneven enforcement 
discretion.
    Service Response: The Service agrees that splits of opinion in 
circuit courts regarding the applicability of incidental

[[Page 54650]]

take requires clarification, which the Service has the authority to 
address through enforcement discretion and policy. However, the Service 
has a history of working with industry to employ best practices to 
reduce incidental take under the MBTA and pursued only the most 
egregious offenders. Thus, the Service disagrees that application of 
enforcement discretion will result in ``harsh and inequitable 
consequences.'' Further, the Service will continue to develop clearer 
standards for regulation of incidental take to reduce uncertainty and 
to ensure enforcement is not uneven. We have also issued a Director's 
Order concurrently with this final rule that clarifies our current 
enforcement position and how the Service will prioritize enforcement 
actions when this rule becomes effective.
    Comment: The Service should retain a bright-line standard that the 
MBTA does not prohibit incidental take. A bright-line rule provides 
important certainty to a wide range of entities.
    Service Response: While we disagree that the MBTA does not prohibit 
incidental take, we agree that a bright-line standard is a preferable 
long-term solution to address actions that incidentally take migratory 
birds. We will continue to work, after publication of this revocation 
rule, to develop a bright-line standard governing regulation of 
incidental take under the MBTA that provides certainty to regulated 
entities.
    Comment: Retaining the January 7 rule will not result in 
significant negative impacts to avian species because companies are 
already motivated to conserve those species through implementation of 
best management practices and are already subject to a wide range of 
other Federal, State, and local avian protection laws.
    Service Response: The Service understands that a number of other 
Federal, State, and local laws and regulations provide some protection 
to birds. However, these laws and regulations vary by State, and 
companies are currently free to cease best practices that were 
undertaken based on compliance with the MBTA. This situation has 
significant potential for negative impacts to migratory birds from 
current and future industry projects.
    Comment: Retaining the January 7 rule will promote better dialogue 
and more cooperation by removing the potential for negative 
repercussions resulting from candid communications with the Service. 
Companies will work more collaboratively with the Service in an 
environment of certainty and mutual understanding. Current efforts are 
supporting migratory birds and reducing impacts, including voluntary 
efforts like the Land-based Wind Energy Guidelines and Avian Protection 
Plan Guidelines for power lines, as well as grant programs like 
America's Conservation Enhancement Act of 2020, Neotropical Migratory 
Bird Conservation Act, Great American Outdoors Act, Farm Bills, and the 
North American Waterfowl Management Plan.
    Service Response: The Service agrees that industries attempting to 
employ best practices deserve encouragement and support from the 
Service, including candid communications. The Service will continue to 
work collaboratively after revocation of this rule to create clear and 
achievable standards for regulated entities. The Service agrees that 
the grant programs mentioned help to conserve and restore habitat for 
migratory birds and that the guidelines provide useful suggestions that 
some industries may follow to help avoid or reduce incidental take of 
migratory birds. The Service concludes, however, that prohibition of 
incidental take is consistent with the best interpretation of the MBTA 
and that this tool is necessary to help slow the decline of many 
species of migratory birds.
    Comment: One commenter stated that the January 7 rule should not be 
revoked because it provides regulatory certainty and supports current 
efforts to improve U.S. infrastructure.
    Service Response: While the Service agrees that the January 7 rule 
provides regulatory certainty, we also believe that prohibition of 
incidental take is consistent with the best legal interpretation under 
the MBTA. Further, the Service has a long track record of working with 
industry to avoid and minimize incidental take while also allowing 
infrastructure plans to proceed. The Service disagrees with the 
assertion that revoking the January 7 rule will inevitably add 
significant cost and delays to the implementation of infrastructure 
programs, nor does it agree with the assertion that protecting 
migratory birds from incidental take will delay climate benefits 
provided by new, resilient infrastructure.
    Comment: The Service has failed to provide an adequate rationale 
for its change in policy and position on whether the MBTA prohibits 
incidental take, and thus violates the Administrative Procedure Act.
    Service Response: We respectfully disagree and refer the commenter 
to the detailed explanation and rationale provided in the preamble to 
this rule. It is important to note that this rule, by its terms, does 
nothing more than revoke the language at 50 CFR 10.14 that codifies an 
interpretation that the MBTA does not prohibit incidental take. We are 
not proposing replacement language at this time. However, we will 
propose to do so in the near future and continue to develop and publish 
policies and regulations that provide the public with greater certainty 
regarding compliance with the MBTA.
    Comment: In the January 7 rule, the Service stated it had grave 
constitutional due process concerns with the prior agency practice of 
using enforcement discretion to implement the Service's prior 
interpretation that the MBTA prohibits incidental take. The Service has 
not explained why those due process concerns have disappeared in 
considering revocation of the January 7 rule.
    Service Response: In promulgating this revocation rule, we 
reevaluated the constitutional concerns we previously categorized as 
grave. Our previous enforcement policy implemented prior to the Jorjani 
Opinion was exercised judiciously, focusing on implementation of best 
practices by various industries to mitigate incidental take of 
migratory birds. The Service's practice was to notify industries that 
their actions caused incidental take and give them an opportunity to 
implement best practices to avoid or mitigate that take prior to 
bringing any enforcement action. This approach is entirely consistent 
with that set forth by the Tenth Circuit Court of Appeals in United 
States v. Apollo Energies, an approach the court considered would 
alleviate any due process concerns associated with using enforcement 
discretion to implement the statute in the context of incidental take. 
A close examination of the past history of the Service's exercise of 
enforcement discretion simply does not invoke significant 
constitutional due process concerns. Moreover, after revocation of the 
January 7 rule, we will develop further policy to implement our 
interpretation that the MBTA prohibits incidental take to provide the 
public with greater certainty regarding enforcement, including 
promulgating a regulation that codifies our current interpretation of 
the MBTA. We have also issued a Director's Order concurrently with the 
publication of this rule that explains in more detail our enforcement 
priorities regarding incidental take of migratory birds and published 
an advance notice of proposed rulemaking to seek public input on an 
authorization framework. Both actions will provide the public with more 
clarity regarding compliance with the MBTA and alleviate any

[[Page 54651]]

potential remaining constitutional due process concerns.
    Comment: The Service should take public comment on alternatives to 
the proposed revocation rather than framing the proposed rule as a 
take-it-or-leave-it offer.
    Service Response: At this stage, the Service simply proposed to 
revoke the January 7 rule and return to the longstanding prior agency 
practice of interpreting the MBTA to prohibit incidental take. The 
alternatives of keeping the rule in place or revoking it are entirely 
consistent with the alternatives proposed during development of the 
January 7 rule and analyzed in the accompanying EIS. Thus, the proposal 
to revoke that rule was entirely in keeping with the approach taken in 
the January 7 rule itself. As explained in the Record of Decision for 
this rulemaking, the Service will develop additional steps to clarify 
its implementation of Alternative B of the EIS developed in association 
with the January 7 rule. The Service will provide the public with 
opportunities to comment on reasonable implementation alternatives 
throughout that process.
    Comment: Interpreting the MBTA to prohibit incidental take produces 
absurd results, such as prosecution of bird deaths caused by 
automobiles, airplanes, plate-glass modern office buildings, or picture 
windows in residential buildings.
    Service Response: This concern is simply not borne out by the 
Service's past practice. The Service has not brought an enforcement 
action for any of the actions presented by the commenter as absurd 
targets of enforcement. Interpreting the MBTA to prohibit incidental 
take has not led to absurd results in the past, and this past practice 
demonstrates there is no reason to believe it will lead to absurd 
results in the future. The Service also notes, as reflected in the 
associated Record of Decision, that this revocation rule is simply the 
first step in a process to implement a fair and public process to 
clarify the scope of the MBTA as it relates to incidental take and 
explain how regulated entities may comply with the MBTA in that 
context.
    Comment: Revoking the January 7 rule could potentially subject to 
criminal liability an effectively limitless number of lawful everyday 
activities. No one would have fair notice of which of their daily 
activities could cause them to commit a Federal crime, and no one can 
sufficiently conform their behavior to fully avoid that liability.
    Service Response: We do not agree that simply revoking the January 
7 rule will automatically subject a limitless number of everyday 
activities to potential criminal liability. That scenario has never 
been the case under the Service's past enforcement of the MBTA and will 
not be the case after revocation of the January 7 rule. Prior to 
issuance of the Jorjani Opinion, the Service followed the direction of 
the 10th Circuit Court of Appeals in the United States v. Apollo 
Energies case by providing potential violators with notice of any 
activities that are causing incidental take and an opportunity to 
correct or mitigate that take before considering moving forward with an 
enforcement action. The Service has published an enforcement policy in 
the form of a Director's Order concurrently with this rule and will 
provide further clarification regarding its approach to enforcing the 
MBTA after revocation of the January 7 rule. This approach will give 
the regulated community fair notice of what actions the Service will 
consider to be violations of the statute.
    Comment: The Service should not use potential funding that could be 
generated by criminalizing incidental take as a basis for revoking the 
January 7 rule.
    Service Response: The Service did not intend to suggest that 
funding of the North American Wetlands Conservation Act fund through 
criminal fines resulting from enforcement of incidental take provides a 
basis for revoking the January 7 rule. Our intent in including this 
information is to provide a complete accounting to the public on the 
effect of the January 7 rule's codification of an interpretation that 
the MBTA does not prohibit incidental take.
    Comment: The Service should retain the January 7 rule and review 
all MOUs (memorandums of understanding) drafted pursuant to Executive 
Order 13186 to ensure they conform to the January 7 rule.
    Service Response: Executive Order 13186 and any MOUs entered into 
to comply with the Executive order have remained in effect through both 
the January 7 rulemaking and this rulemaking to revoke the January 7 
rule. The various interagency MOUs conform to the Executive Order and 
are not contingent on any rulemaking interpreting whether the MBTA 
prohibits or excludes incidental take.
    Comment: The MBTA's reliance on criminal penalties may be an 
appropriate deterrence for illegal hunting or trade, but not for 
unintentional take. If the MBTA is read to apply to any and all take of 
migratory birds, the agency is left to decide, with minimal direction, 
what causes of bird mortality to pursue, and among those, what conduct 
warrants sanctions. However, the Service can easily provide greater 
certainty, and make better use of its own resources, through the 
issuance of a formal MBTA enforcement policy issued contemporaneously 
with adoption of the proposed revocation rule.
    Service Response: The Service agrees that applying the MBTA to each 
and every case of incidental take of a migratory bird is not feasible 
or desirable and would not be an efficient use of agency resources. The 
Service also agrees that issuing a formal enforcement policy upon 
revocation of the January 7 rule would be beneficial and provide the 
public with greater certainty regarding what activities may be subject 
to enforcement. Therefore, the Service has issued an enforcement policy 
in the form of a Director's Order upon publication of this rule to 
revoke the January 7 rule as part of a broader strategy to provide the 
public with greater certainty regarding what the MBTA prohibits along 
with guidance to achieve compliance.
    Comment: If the Service determines that revocation of the 2021 rule 
is necessary, the Service must take the appropriate steps to resolve 
the regulatory uncertainty and enforcement concerns that stem from that 
approach. In promulgating regulations and establishing a program to 
address incidental take, the Service must use the authority provided by 
section 2 of the MBTA to craft exceptions to the conduct prohibited 
under the MBTA.
    Service Response: The Service will take this comment into account 
in considering whether to develop an authorization framework for 
incidental take after finalizing this revocation rule. The Service is 
considering various methods to standardize enforcement, provide public 
certainty, and authorize incidental take, but those issues are beyond 
the scope of this rulemaking. Developing regulations that authorize 
incidental take and provide specific exceptions are among the options 
the Service is considering.
    Comment: If the January 7 rule is revoked, one State agency stated 
it will lose the benefit of being shielded from incidental take 
liability when conducting habitat-enhancement activities, such as 
prescribed burns. That State requested that the Service create an 
exemption for such activities and proposed specific language for the 
exemption.
    Service Response: The Service will take this comment into account 
in considering whether to develop an authorization framework for 
incidental take after finalizing this revocation rule. We will also 
consider the request for

[[Page 54652]]

exceptions or exemptions, as well as the specific language provided by 
the commenter, in such a framework. We recognize that habitat-
enhancement activities, including prescribed burns, can result in 
incidental take in the short term but can also provide positive 
benefits to migratory birds in the medium-to-long term that may 
outweigh any short-term incidental take. For these reasons, prescribed 
burns following best management practices to enhance wildlife habitat 
were not a priority for enforcement during the several decades the 
Service interpreted the MBTA to prohibit incidental take prior to the 
change in interpretation precipitated by the Solicitor's Opinion, M-
37050.
    Comment: Given that the Trump administration's interpretation of 
the MBTA was found invalid by a Federal court, the commenter was 
concerned the Service's slow approach to revoking the rule and enacting 
new rules to protect migratory birds will leave vulnerable bird 
populations unprotected for an unnecessarily long period of time. We 
encourage the Service to move quickly to restart enforcement of the 
MBTA against industrial actions that lead to harm or death of birds.
    Service Response: With this rule, the Service has revoked the 
January 7 rule. We have issued a Director's Order concurrently with 
this rule that explains our enforcement policy when the revocation rule 
becomes effective.
    Comment: Revoking the January 7 rule is a necessary first step to 
comply with congressional language and intent and protect migratory 
birds from additional population declines. But the Service must not 
stop there. A robust regulatory system is necessary to reduce the rate 
of incidental take associated with many types of commercial, 
agricultural, and industrial activities. The energy and 
telecommunications sectors in particular must be better regulated to 
reduce incidental take.
    Service Response: The Service does not intend revocation of the 
January 7 rule to be the last step in implementing the MBTA. The 
Service is considering various methods to standardize enforcement, 
provide public certainty, and authorize incidental take. Developing 
regulations that authorize incidental take by providing a permit 
system, regulatory authorizations, or specific exceptions are among the 
options the Service is considering.
    Comment: The bycatch of seabirds in fisheries is a conservation 
concern that the Service can effectively mitigate through the 
establishment of a regulatory process that incorporates conservation 
measures into incidental take permits.
    Service Response: The Service agrees that incidental bycatch of 
seabirds is a serious conservation concern. We will evaluate this 
proposal as we consider and develop methods that include 
standardization of enforcement, providing greater public certainty, and 
potential authorization of incidental take.
    Comment: The SBREFA (Small Business Regulatory Enforcement Fairness 
Act) analysis and other potentially important analyses of the impacts 
of the proposed revocation were missing from the rulemaking docket.
    Service Response: The Service completed the SBREFA analysis and all 
other required analyses and included the summary in the proposed rule 
preamble. Unfortunately, the documents themselves were not included in 
the rulemaking docket at www.regulations.gov with the proposed rule. To 
resolve this issue, the Service made the initial regulatory flexibility 
analysis and the revised regulatory impact analysis available for 
public review and comment prior to finalizing this rule and the Record 
of Decision (86 FR 38354, July 20, 2021).
    Comment: One commenter recommended reopening public comment for 60 
days with separate comment periods for the Regulatory Flexibility Act 
analysis.
    Service Response: The Service concluded that a 30-day comment 
period was sufficient for this rulemaking. The Service also provided an 
additional 30-day comment period for public review of the Regulatory 
Flexibility Act analysis and regulatory impact analysis. The issues 
central to this rulemaking have already been vetted through multiple 
public comment periods for the January 7 rule and associated NEPA 
analysis and the rule extending the effective date of the January 7 
rule. Therefore, the Service concluded a 30-day comment period is 
sufficient for this rulemaking.
    Comment: The Service should allow Federal courts to determine the 
scope of what the MBTA proscribes and adopt prosecutorial guidelines 
that outline the circumstances in which the Federal Government will 
file criminal prosecutions under the MBTA. The executive branch has 
relied on the prosecutorial discretion approach to refrain from 
prosecuting MBTA cases where there was no element of intentional 
misconduct or grossly culpable negligence for decades. However, some 
unwarranted prosecutions have occurred. The executive branch should 
write fresh guidelines based on a standard of due care, rather than 
strict liability, with the benefit of stakeholder input rather than the 
Service codify its interpretation of the statute.
    Service Response: The Service does not agree that waiting for 
Federal courts to coalesce around a specific interpretation of the MBTA 
is the correct path forward. Instead, the Service is developing 
regulations and policy to provide the public and the regulated 
community with a degree of certainty regarding what constitutes a 
violation of the MBTA. We agree that an enforcement policy may be a 
productive way to police incidental take under the MBTA, particularly 
in the near term; accordingly, we have issued a Director's Order 
concurrently with this final rule that explains how we will prioritize 
our enforcement resources in the context of incidental take.
    Comment: Malicious intent must be present in order to warrant 
criminal proceedings for the take of migratory birds.
    Service Response: The misdemeanor provision of the MBTA has long 
been interpreted by Federal courts as a strict liability crime. 
Requiring malicious intent before the Service initiates an enforcement 
action would not be consistent with the statutory language or the 
relevant court cases. However, as mentioned previously, the Service 
issued a Director's Order concurrently with this final rule that 
explains how we will prioritize our enforcement resources in the 
context of incidental take.

Required Determinations

National Environmental Policy Act

    Because we are revoking the January 7 MBTA rule, we 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 https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The 
alternatives analyzed in that EIS cover the effects of interpreting the 
MBTA to both include and exclude incidental take. In finalizing this 
rule, we have published an amended Record of Decision that explains our 
decision to instead select the environmentally preferable alternative, 
or Alternative B, in the final EIS. Any additional, relevant impacts on 
the human environment that have occurred subsequent to our initial 
Record of Decision are described in the amended Record of Decision.

[[Page 54653]]

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's 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 evaluated the January 7 rule that this rule would revoke under 
the criteria in Executive Order 13175 and under the Department's 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 
reinterpretation of the MBTA to exclude coverage of incidental take 
under the January 7 rule. Thus, revoking the January 7 rule is 
consistent with the requests of federally recognized Tribes during 
those consultations.

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 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. 1531-44), requires that the Secretary of the Interior shall 
review other programs administered by her and utilize such programs in 
furtherance of the purposes of the Act (16 U.S.C. 1536(a)(1)). It 
further states that 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. 1536(a)(2)). We have determined that 
this rule revoking the January 7 rule regarding the take of migratory 
birds will have no effect on ESA-listed species within the meaning of 
ESA section 7(a)(2).

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that OMB-OIRA will review all 
significant rules. OMB-OIRA has determined that this rule is 
economically significant. OIRA has also determined that this is a major 
rule under Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (also known as the Congressional Review Act or 
CRA). 5 U.S.C. 804(2). See OIRA Conclusion of E.O. 12866 Regulatory 
Review of the MBTA, available at https://www.reginfo.gov/public/do/eoDetails?rrid=131383 (designating the MBTA rule as a major rule under 
the CRA). The CRA provides that major rules shall not take effect for 
at least 60 days after publication in the Federal Register (5 U.S.C. 
801(a)(3)). This rule will therefore be submitted to each House of 
Congress and the Comptroller General in compliance with the CRA. 5 
U.S.C. 801(a).
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's 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 final rule in a manner 
consistent with these requirements.
    This final regulation revokes the January 7 MBTA rule. The legal 
effect of this rule removes from the Code of Federal Regulations (CFR) 
the interpretation that incidental take of migratory birds is not 
prohibited under the MBTA, based on the rationale explained in the 
preamble. As explained in the preamble, the Solicitor's Opinion (M-
37050) that formed the basis for the January 7 rule was overturned in 
court and has since been withdrawn by the Solicitor's Office. By 
removing Sec.  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 will 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 https://www.regulations.gov in 
Docket No. FWS-HQ-MB-2018-0090. 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 Department's longstanding prior 
interpretation. By reverting to this interpretation, the Service views 
the incidental take of migratory birds as a potential violation of the 
MBTA, consistent with judicial precedent.
    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 birdwatching opportunities. The primary cost of this rule is 
the compliance cost incurred by industry, which is also not 
quantifiable based on current available data. 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 (2022-2031), the present value 
of these transfers is estimated to be $149.3 million at a 7-percent 
discount rate and $174.6 million at a 3-percent discount rate. This 
would equate to an annualized value of $14.9 million at a 7-percent 
discount rate and $17.5 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. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final

[[Page 54654]]

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 IRFA/FRFA 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. 605(b). We prepared a FRFA, briefly summarized below, to 
accompany this rule that can be viewed online at https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.
    This final 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 M-37050. 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 will not be affected under this 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 will 
incur costs. The following analysis determines whether a significant 
number of small businesses reduced best management practices and will 
be impacted by this rule.

                         Table 1--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
                                                                                  Small business
                                                                    Number of     size standard     Number  of
           NAICS industry description              NAICS code      businesses       (number of         small
                                                                                    employees)      businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing................................         114,111           1,210           \a\ 20           1,185
Crude Petroleum and Natural Gas Extraction.....         211,111           6,878            1,250           6,868
Drilling Oil and Gas Wells.....................         213,111           2,097            1,000           2,092
Solar Electric Power Generation................         221,114             153              250             153
Wind Electric Power Generation.................         221,115             264              250             263
Electric Bulk Power Transmission...............         221,121             261              500             214
Electric Power Distribution....................         221,122           7,557            1,000           7,520
Wireless Telecommunications Carriers (except            517,312          15,845            1,500          15,831
 Satellite)....................................
----------------------------------------------------------------------------------------------------------------
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 birds, the 
Service does not have specific information regarding how many 
businesses in each sector implement measures to reduce incidental take 
of birds. Not all businesses in each sector incidentally take birds. In 
addition, a 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 Solicitor's Opinion M-37050 or issuance of the January 7 rule. The 
Service specifically requested public comment on any reliance interests 
on 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, the February 9 rule 
extending the effective date of the January 7 rule, or the proposed 
rule and no comments were submitted by any entities identifying reduced 
implementation of measures that would have to be reinstated when this 
rule becomes effective. We did receive comments that stated that they 
did not reduce best management practices after the January 7 rule. 
These comments support our estimate that most entities did not reduce 
best management practices as a result of the January 7 rule excluding 
incidental take from the scope of the MBTA. 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 will 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 will 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 requested public comment 
so we can extrapolate data, if appropriate, to each industry sector and 
any affected small businesses. In response, we received information 
from the solar industry, which we utilized in this analysis where 
applicable. Table 3 summarizes likely economic effects of the rule on 
the business sectors identified in table 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. The likely economic effects summarized in 
table 3 were collected during the public comment periods associated 
with the January 7 rule and associated NEPA analysis, the February 9 
rule extending the effective date of the January 7 rule, and the 
proposed rule.

[[Page 54655]]



                            Table 2--Best Management Practices Costs by Industry \1\
----------------------------------------------------------------------------------------------------------------
                                                                                             Why data are not
                                           Example of bird                                extrapolated to entire
            NAICS industry                mitigation measure         Estimated cost         industry or small
                                                                                                businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (NAICS 11411)........  Changes in design of      Costs are per    No data
                                        longline fishing         vessel per year.         available on fleet
                                        hooks, changes in        $1,400 for       size.
                                        offal management         thawed blue-dyed bait..  No data
                                        practices, use of        $150 for         available on how many
                                        flagging or streamers    strategic offal          measures are employed
                                        on fishing lines.        discards..               on each vessel.
                                                                 $4,600 for
                                                                 Tori line..
                                                                 $4,000 one-
                                                                 time cost for
                                                                 underwater setting
                                                                 chute..
                                                                 $4,000 initial
                                                                 and $50 annual for
                                                                 side setting..
Crude Petroleum and Natural Gas         Netting of oil   $130,680 to      Infeasible to
 Extraction NAICS (211111).             pits and ponds.          $174,240 per acre to     net pits larger than 1
                                        Closed           net ponds.               acre due to sagging.
                                        wastewater systems..     Most netted      Size
                                                                 pits are \1/4\ to \1/    distribution of oil
                                                                 2\ acre..                pits is unknown.
                                                                 Cost not         Average number
                                                                 available for            of pits per business
                                                                 wastewater systems..     is unknown.
                                                                                          Closed
                                                                                          wastewater systems
                                                                                          typically used for
                                                                                          reasons other than
                                                                                          bird mitigation.
Drilling Oil and Gas Wells (NAICS       Netting of oil   $130,680 to      Infeasible to
 213111).                               pits and ponds.          $174,240 per acre to     net pits larger than 1
                                        Closed loop      net ponds.               acre due to sagging.
                                        drilling fluid           Cost not         Size
                                        systems..                available for closed     distribution of oil
                                                                 loop drilling fluid      pits is unknown.
                                                                 systems, but may be a    Average number
                                                                 net cost savings in      of pits per business
                                                                 arid areas with water    is unknown.
                                                                 conservation             Closed loop
                                                                 requirements.            drilling fluid systems
                                                                                          typically used for
                                                                                          reasons other than
                                                                                          bird mitigation.
                                                                                          High
                                                                                          variability in number
                                                                                          of wells drilled per
                                                                                          year (21,200 in 2019).
Solar Electric Power Generation         Pre- and post-  $3,000 for two rounds    New projects can vary
 (NAICS 221114).                        construction bird        of bird surveys on 200-  from 100 to 5,000
                                        surveys.                 acre site for pre-and    acres in size, and
                                        Compliance       post-construction, and   mortality surveys may
                                        with Avian Power Line    up to $10,000 if         not scale linearly.
                                        Interaction Committee    travel and site
                                        standards.               preparation included.
                                        Installation
                                        of anti-perch devices..
                                        Light
                                        management measures..
                                        Storage of
                                        water in covered
                                        tanks..
Wind Electric Power Generation (NAICS   Pre-             Cost not         Data not
 221115).                               construction             available for            available for
                                        adjustment of turbine    adjustment of turbine    adjustment of turbine
                                        locations to minimize    construction locations.  construction
                                        bird mortality during    $100,000 to      locations.
                                        operations.              $500,000 per facility    High
                                        Pre- and post-   per year for pre-        variability in survey
                                        construction bird        construction site use    costs and high
                                        surveys.                 and post-construction    variability in need to
                                        Retrofit power   bird mortality surveys.  conduct surveys.
                                        poles to minimize        $7,500 per       High
                                        eagle mortality.         power pole with high     variability in cost
                                                                 variability of cost.     and need to retrofit
                                                                 Annual           power poles.
                                                                 nationwide labor cost
                                                                 to implement wind
                                                                 energy guidelines:
                                                                 $17.6M.
                                                                 Annual
                                                                 nationwide non-labor
                                                                 cost to implement wind
                                                                 energy guidelines:
                                                                 $36.9M.
Electric Bulk Power Transmission       Retrofit power poles to  $7,500 per power pole    High variability in
 (NAICS 221121).                        minimize eagle           with high variability    cost and need to
                                        mortality.               of cost.                 retrofit power poles.
Electric Power Distribution (NAICS     Retrofit power poles to  $7,500 per power pole    High variability in
 221122).                               minimize eagle           with high variability    cost and need to
                                        mortality.               of cost.                 retrofit power poles.
Wireless Tele-communications Carriers   Extinguish non-  Industry saves  Data not available for
 (except Satellite) (NAICS 517312).     flashing lights on       hundreds of dollars      number of operators
                                        towers taller than       per year in              who have implemented
                                        350'.                    electricity costs by     these practices.
                                        Retrofit         extinguishing lights.
                                        towers shorter than      Retrofitting
                                        350' with LED flashing   with LED lights
                                        lights.                  requires initial cost
                                                                 outlay, which is
                                                                 recouped over time due
                                                                 to lower energy costs
                                                                 and reduced
                                                                 maintenance.
----------------------------------------------------------------------------------------------------------------
\1\ Sources: FWS personnel, National Oceanic and Atmospheric Administration Revised Seabird Regulations
  Amendment, eccnetting.com, statista.com, aerion.com, FWS Wind Energy Guidelines, FWS Public Records Act data,
  FWS Eagle Conservation Plan Guidance.


                            Table 3--Summary of Economic Effects on Small Businesses
----------------------------------------------------------------------------------------------------------------
                                     Potential bird
   NAICS industry description     mitigation measures      Economic effects on small            Rationale
          (NAICS Code)              under this rule               businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing (11411).........  Changes in design    Likely minimal effects..........  Seabirds are
                                   of longline                                            specifically excluded
                                   fishing hooks,                                         from the definition of
                                   changes in offal                                       bycatch under the
                                   management                                             Magnuson-Stevens
                                   practices, and                                         Fishery Conservation
                                   flagging/streamers                                     and Management Act
                                   on fishing lines.                                      and, therefore,
                                                                                          seabirds not listed
                                                                                          under the ESA may not
                                                                                          be covered by any
                                                                                          mitigation measures.
                                                                                          The impact of this on
                                                                                          small entities is
                                                                                          unknown.
Crude Petroleum and Natural Gas   Using closed waste-  Likely minimal effects..........  Thirteen States have
 Extraction (211111).              water systems or                                       regulations governing
                                   netting of oil                                         the treatment of oil
                                   pits and ponds.                                        pits such as netting
                                                                                          or screening of
                                                                                          reserve pits,
                                                                                          including measures
                                                                                          beneficial to birds.
                                                                                          In addition, much of
                                                                                          the industry is
                                                                                          increasingly using
                                                                                          closed systems, which
                                                                                          do not pose a risk to
                                                                                          birds. For these
                                                                                          reasons, this rule is
                                                                                          unlikely to affect a
                                                                                          significant number of
                                                                                          small entities.

[[Page 54656]]

 
Drilling Oil and Gas Wells        Using closed waste-  Likely minimal effects..........  Thirteen States have
 (213111).                         water systems or                                       regulations governing
                                   netting of oil                                         the treatment of oil
                                   pits and ponds.                                        pits, such as netting
                                                                                          or screening of
                                                                                          reserve pits,
                                                                                          including measures
                                                                                          beneficial to birds.
                                                                                          In addition, much of
                                                                                          the industry is
                                                                                          increasingly using
                                                                                          closed systems, which
                                                                                          do not pose a risk to
                                                                                          birds. For these
                                                                                          reasons, this rule is
                                                                                          unlikely to affect a
                                                                                          significant number of
                                                                                          small entities.
Solar Electric Power Generation   Monitoring bird use  Likely minimal effects..........  Bird monitoring in some
 (221114).                         and mortality at                                       States may continue to
                                   facilities,                                            be required under
                                   limited use of                                         State policies. The
                                   deterrent systems                                      number of States and
                                   such as streamers                                      the policy details are
                                   and reflectors.                                        unknown. The Solar
                                                                                          Energy Industry
                                                                                          Association is not
                                                                                          aware of any companies
                                                                                          that reduced best
                                                                                          management practices
                                                                                          as a result of the
                                                                                          January 7 rule.
Wind Electric Power Generation    Following Wind       Likely minimal effects..........  Following the Wind
 (221115).                         Energy Guidelines,                                     Energy Guidelines has
                                   which involve                                          become industry best
                                   conducting risk                                        practice and would
                                   assessments for                                        likely continue. In
                                   siting facilities.                                     addition, the industry
                                                                                          uses these guidelines
                                                                                          to aid in reducing
                                                                                          effects on other
                                                                                          regulated species like
                                                                                          eagles and threatened
                                                                                          and endangered bats.
Electric Bulk Power Transmission  Following Avian      Likely minimal effects..........  Industry would likely
 (221121).                         Power Line                                             continue to use APLIC
                                   Interaction                                            guidelines to reduce
                                   Committee (APLIC)                                      outages caused by
                                   guidelines.                                            birds and to reduce
                                                                                          the take of eagles,
                                                                                          regulated under the
                                                                                          Bald and Golden Eagle
                                                                                          Protection Act.
Electric Power Distribution       Following Avian      Likely minimal effects..........  Industry would likely
 (221122).                         Power Line                                             continue to use APLIC
                                   Interaction                                            guidelines to reduce
                                   Committee (APLIC)                                      outages caused by
                                   guidelines.                                            birds and to reduce
                                                                                          the take of eagles,
                                                                                          regulated under the
                                                                                          Bald and Golden Eagle
                                                                                          Protection Act.
Wireless Tele-communications      Installation of      Likely minimal effects..........  Industry will likely
 Carriers (except Satellite)       flashing                                               continue to install
 (517312).                         obstruction                                            flashing obstruction
                                   lighting.                                              lighting to save
                                                                                          energy costs and to
                                                                                          comply with recent
                                                                                          Federal Aviation
                                                                                          Administration
                                                                                          Lighting Circular and
                                                                                          Federal Communication
                                                                                          Commission
                                                                                          regulations.
----------------------------------------------------------------------------------------------------------------

    We 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 and published it for public comment. We considered 
those comments and developed a FRFA that can be viewed online at https://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. After further 
review, we have determined that this rule will not have an impact on a 
substantial number of small entities. The January 7 rule was in effect 
for less than 1 year, and many comments from industries stated that 
they did not make changes in the implementation of best practices in 
response to the January 7 rule because they continued to follow various 
regulations and guidance (as shown in table 3). The Service expects the 
impact of this rule will be minimal because entities did not reduce 
best management practices as a result of the January 7 rule excluding 
incidental take from the scope of the MBTA. Therefore, we certify that 
this rule will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule would not ``significantly or uniquely'' affect small 
government activities. A small government agency plan is not required.
    b. This rule would not produce a Federal mandate on local or State 
government or private entities. Therefore, this action is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

Takings

    In accordance with E.O. 12630, this rule does not contain a 
provision for taking of private property and would not have significant 
takings implications. A takings implication assessment is not required.

Federalism

    This rule will not create substantial direct effects or compliance 
costs on State and local governments or preempt State law. Some States 
may choose not to enact changes in their management efforts and 
regulatory processes and staffing to develop and or implement State 
laws governing birds, likely accruing benefits for States. Therefore, 
this rule would not have sufficient federalism effects to warrant 
preparation of a federalism summary impact statement under E.O. 13132.

Civil Justice Reform

    In accordance with E.O. 12988, we determine that this rule will not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 10

    Exports, Fish, Imports, Law enforcement, Plants, Transportation, 
Wildlife.

Regulation Removal

    For the reasons described in the preamble, we hereby amend 
subchapter B of chapter I, title 50 of the Code of Federal Regulations 
as set forth below:

PART 10--GENERAL PROVISIONS

0
1. The authority citation for part 10 continues to read as follows:

    Authority:  16 U.S.C. 668a-668d, 703-712, 742a-742j-l, 1361-
1384, 1401-1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.


Sec.  10.14   [Amended]

0
2. Remove Sec.  10.14.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-21473 Filed 9-30-21; 8:45 am]
BILLING CODE 4333-15-P