Internal Personnel Rules and Practices of the NTSB
| Published date | 04 October 2021 |
| Citation | 86 FR 54641 |
| Record Number | 2021-21517 |
| Section | Rules and Regulations |
| Court | National Transportation Safety Board |
54641
Federal Register / Vol. 86, No. 189 / Monday, October 4, 2021 / Rules and Regulations
** (10 or fewer claims).
* * * * *
Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land
and Minerals Management.
[FR Doc. 2021–21514 Filed 10–1–21; 8:45 am]
BILLING CODE 4310–84–P
NATIONAL TRANSPORTATION
SAFETY BOARD
49 CFR Part 801
[Docket No.: NTSB–2021–0006]
RIN 3147–AA23
Internal Personnel Rules and Practices
of the NTSB
AGENCY
: National Transportation Safety
Board (NTSB).
ACTION
: Interim final rule; request for
comments.
SUMMARY
: The National Transportation
Safety Board (NTSB) is amending its
Internal Personnel Rules and Practices
to reflect that the agency is closing its
‘‘public reference room’’ and will now
make qualifying records electronically
available. Moreover, the agency will
remove an outdated paragraph
describing a particular category of
exempted records under the Freedom of
Information Act (FOIA): internal matters
of a relatively trivial nature that have no
significant public interest, and
predominately internal matters that the
release would risk circumvention of a
statute or agency regulation. The
revisions to the NTSB FOIA regulation
are being issued as an interim final rule
to ensure that an updated regulations is
in place as soon as practicable to
implement the Supreme Court decision.
DATES
: This rule is effective on October
4, 2021. The NTSB will accept written
comments on this interim final rule on
or before December 3, 2021.
ADDRESSES
: You may send comments,
identified by Docket Number (No.)
NTSB–2021–0006, by any of the
following methods:
•Federal e-Rulemaking Portal:
https://www.regulations.gov.
•Email: rulemaking@ntsb.gov.
•Fax: 202–314–6090.
•Mail/Hand Delivery/Courier: NTSB,
Office of General Counsel, 490 L’Enfant
Plaza East SW, Washington, DC 20594.
Instructions: All submissions in
response to this interim final rule must
include Docket No. NTSB–2021–0006.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket, go to
https://www.regulations.gov and search
Docket No. NTSB–2021–0006.
FOR FURTHER INFORMATION CONTACT
:
Kathleen Silbaugh, General Counsel,
(202) 314–6080, rulemaking@ntsb.gov.
SUPPLEMENTARY INFORMATION
:
I. Background
Previously, the agency offered its
physical public reading room to allow
for in-person inspection of its Federal
Register publications; however, with the
advent of modern technology, the need
for such a room is obsolete as
documents are electronically available
to the public through regulations.gov
and the agency’s electronic reading
room.
Currently, part 801 provides that the
NTSB will maintain a ‘‘public reference
room’’ in accordance with FOIA and
notes the various records that will be
made available in that room; however,
with fewer visitors and the frequent use
of the public reference room as a
meeting space, the agency is closing its
physical reading room and will make
qualifying records available
electronically. Consequently, the agency
is issuing this interim final rule because
technical amendments are necessary to
remove all references to the ‘‘public
reference room.’’
Further, the agency will amend 49
CFR 801.52, which exempts internal
personnel rules and practices of the
NTSB from public disclosure under 5
U.S.C. 552(b)(2), FOIA’s Exemption 2.
Consistent with that exemption,
§ 801.52(b) pertains to records regarding
internal matters of a relatively trivial
nature that have no significant public
interest, and predominately internal
matters that the release would risk
circumvention of a statute or agency
regulation. However, the Supreme Court
has since held that the exemption
‘‘encompasses only records relating to
issues of employee relations and human
resources.’’ Milner v. Department of the
Navy, 131 S.Ct. 1259 (2011).
Accordingly, the NTSB is issuing an
interim final rule to remove paragraph
(b) from 49 CFR 801.52.
II. Regulatory Analysis
Because the NTSB is an independent
agency, this interim final rule does not
require an assessment of its potential
costs and benefits under section 6(a)(3)
of Executive Order (E.O.) 12866,
Regulatory Planning and Review, 58 FR
51735 (Sept. 30, 1993). In addition, the
NTSB has considered whether this rule
would have a significant economic
impact on a substantial number of small
entities, under the Regulatory Flexibility
Act (5 U.S.C. 601–612). The NTSB
certifies under 5 U.S.C. 605(b) that this
rule would not have a significant
economic impact on a substantial
number of small entities.
The NTSB does not anticipate this
rule will have a substantial, direct effect
on state or local governments or will
preempt state law; as such, this rule
does not have implications for
federalism under E.O. 13132,
Federalism, 64 FR 43255 (Aug. 4, 1999).
This rule complies with all applicable
standards in sections 3(a) and 3(b)(2) of
E.O. 12988, Civil Justice Reform, 61 FR
4729 (Feb. 5, 1996), to minimize
litigation, eliminate ambiguity, and
reduce burden. The NTSB has evaluated
this rule under: E.O. 12898, Federal
Actions to Address Environmental
Judice in Minority Populations and
Low-Income Populations, 59 FR 7629
(Feb. 16, 1994); E.O. 13045, Protection
of Children from Environmental Health
Risks and Safety Risks, 62 FR 19885
(Apr. 21, 1997); E.O. 13175,
Consultation and Coordination with
Indian Tribal Governments, 65 FR
67249 (Nov. 6, 2000); E.O. 13211,
Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use, 66 FR 28355 (May
18, 2001); and the National
Environmental Policy Act, 42 U.S.C.
4321–47. Pursuant to the Paperwork
Reduction Act, the NTSB has
determined that there is no new
requirement for information collection
associated with this interim final rule.
The NTSB has concluded that this
interim final rule neither violates nor
requires further consideration under
those orders, statutes, E.O.s, and acts.
List of Subjects in 49 CFR Part 801
Archives and records, Freedom of
information.
Accordingly, for the reasons stated in
the Preamble, the NTSB amends 49 CFR
part 801 as follows:
PART 801—PUBLIC AVAILABILITY OF
INFORMATION
■1. The authority citation for part 801
continues to read as follows:
Authority: 49 U.S.C. 1113(f); 5 U.S.C. 552;
18 U.S.C. 641, 2071; 31 U.S.C. 3717, 9701; 44
U.S.C. Chapters 21, 29, 31, and 33.
■2. In part 801, revise all references to
‘‘public reference room’’ to read
‘‘electronic reading room’’.
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54642
Federal Register / Vol. 86, No. 189 / Monday, October 4, 2021 / Rules and Regulations
■3. Revise § 801.52 to read as follows:
§ 801.52 Internal personnel rules and
practices of the NTSB.
Pursuant to 5 U.S.C. 552(b)(2), the
following records are exempt from
disclosure under FOIA: Records relating
solely to internal personnel rules and
practices, including memoranda
pertaining to personnel matters such as
staffing policies, and procedures for the
hiring, training, promotion, demotion,
or discharge of employees, and
management plans, records, or
proposals relating to labor-management
relations.
Jennifer Homendy,
Chair.
[FR Doc. 2021–21517 Filed 10–1–21; 8:45 am]
BILLING CODE 7533–01–P
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.
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
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