Regulations Governing Take of Migratory Birds; Delay of Effective Date

• Published date: 09 February 2021
• Citation: 86 FR 8715
• Record Number: 2021-02667
• Section: Rules and Regulations
• Court: Fish And Wildlife Service

8715

Federal Register / Vol. 86, No. 25 / Tuesday, February 9, 2021 / Rules and Regulations

any particular provider. The

Commission also determined that

CTIA’s petition to revise the 2021 and

2023 deadlines was untimely, as these

deadlines were established in the 2015

Fourth Report and Order. In response to

CTIA’s argument that postponement of

Stage Zb testing created an

insurmountable obstacle for meeting the

Commission’s timelines, the

Commission found that it had already

determined in the Sixth Report and

Order and Fifth Report and Order that

compliance was feasible, and the

deployment of mobile OS-based

technologies had no bearing on that

feasibility. In response to CTIA’s

argument that indoor location accuracy

benchmarks are a mandate that

providers use barometric sensor-based

solutions, the Commission noted that

the Sixth Report and Order does not

require providers to use any particular

technology. The Commission also

disagreed with CTIA’s claim that the

Sixth Report and Order improperly

relied on vendors’ claims, as the Sixth

Report and Order underscored the

active role that CMRS providers would

need to play in the deployment of z-axis

solutions. In addition, the Commission

found that, contrary to CTIA’s

assertions, it had adequately considered

the benefits of the nationwide providers’

proposed solution in the Sixth Report

and Order, and the decision was

consistent with Commission precedent.

Further, the Commission found that it

had reasonably relied on confidence and

uncertainty standards in the rules.

4. Similarly, the Commission

determined that APCO’s petition for

reconsideration of certain requirements

was repetitive, untimely, and

misconstrued the record of this

proceeding, which affirms that a diverse

array of technological approaches could

be used to provide dispatchable

location. The Commission determined

that APCO’s petition for reconsideration

was repetitive, as the Commission had

already considered and rejected in the

Sixth Report and Order APCO’s

suggestion that the Commission revise

its rules to require CMRS providers to

provide dispatchable location for a

minimum percentage of 911 calls. The

Commission also determined that

APCO’s argument that notice was

insufficient for the Commission’s

decision to convert the NEAD

benchmark to an ‘‘any database’’

benchmark misconstrued the record, as

the Commission anticipated the

possibility of the NEAD’s failure in the

Fifth Further Notice and proposed

allowing CMRS providers to use other

databases to support dispatchable

location. In addition, the Commission

determined that APCO’s argument

asking the Commission to substitute a

dispatchable location requirement based

on a minimum percentage of calls was

untimely, as the deployment and

reference point requirements were

adopted in the 2015 Fourth Report and

Order. The Commission further found,

contrary to APCO’s arguments, that the

existing reference point benchmark was

reasonable and that the demise of the

NEAD does not require changing it; in

amending the rules to allow alternatives

to the NEAD, the Commission made

clear that any carrier using a non-NEAD

database to support dispatchable

location must meet the same technical

and functional requirements that would

have applied to the NEAD. The

Commission affirmed its requirement

adopted in the Sixth Report and Order

that CMRS carriers provide dispatchable

location with wireless E911 calls when

it is technically feasible and cost

effective to do so. The Commission also

found that APCO’s proposed

percentage-of-calls approach was

arbitrary and lacked any showing of

technical feasibility or cost-

effectiveness.

I. Procedural Matters

5. Paperwork Reduction Act Analysis.

This Order on Reconsideration does not

contain any new or modified

information collection requirements

subject to the Paperwork Reduction Act

of 1995, Public Law 104–13. Thus, it

does not contain any new or modified

information collection burden for small

business concerns with fewer than 25

employees, pursuant to the Small

Business Paperwork Relief Act of 2002,

Public Law 107–198, see 44 U.S.C.

3506(c)(4).

6. Congressional Review Act. The

Commission will not send a copy of this

Order on Reconsideration to Congress

and the Government Accountability

Office pursuant to the Congressional

Review Act, see 5 U.S.C. 801(a)(1)(A),

because no rule was adopted or

amended.

7. Regulatory Flexibility Act Analysis.

In the Sixth Report and Order, the

Commission provided a Final

Regulatory Flexibility Analysis pursuant

to the Regulatory Flexibility Act of

1980, as amended (RFA). We received

no petitions for reconsideration of that

Final Regulatory Flexibility Analysis. In

this present Order on Reconsideration,

the Commission promulgates no

additional final rules. Our present

action is, therefore, not an RFA matter.

II. Ordering Clauses

8. Accordingly, it is ordered that the

Petition for Reconsideration filed on

September 28, 2020, by CTIA is

dismissed and, alternatively and

independently, is denied.

9. It is further ordered that the

Petition for Reconsideration filed on

September 23, 2020, by the Association

of Public-Safety Communications

Officials-International, Inc. is dismissed

and, alternatively and independently, is

denied.

10. It is further ordered that this Order

on Reconsideration shall be effective

thirty days after publication in the

Federal Register.

Federal Communications Commission.

Marlene Dortch,

Secretary.

[FR Doc. 2021–02678 Filed 2–5–21; 11:15 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 10

[Docket No. FWS–HQ–MB–2018–0090;

FF09M22000–201–FXMB1231090BPP0]

RIN 1018–BD76

Regulations Governing Take of

Migratory Birds; Delay of Effective

Date

AGENCY

: Fish and Wildlife Service,

Interior.

ACTION

: Final rule; delay of effective

date and request for public comments.

SUMMARY

: On January 7, 2021, we, the

U.S. Fish and Wildlife Service,

published a final rule (‘‘MBTA 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 are delaying the MBTA

rule’s effective date until March 8, 2021,

in conformity with the Congressional

Review Act (CRA). We request public

comments to inform our review of this

final rule and to determine whether the

further extension of the effective date is

necessary.

DATES

:

Effective Date: As of February 5, 2021,

the effective date of the rule that

published on January 7, 2021, at 86 FR

1134, is delayed until March 8, 2021.

Written Comments: We request public

comments on issues of fact, law, and

policy raised by the MBTA rule

published on January 7, 2021 (86 FR

1134), and on whether that rule should

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Federal Register / Vol. 86, No. 25 / Tuesday, February 9, 2021 / Rules and Regulations

be amended, rescinded, delayed

pending further review by the agency, or

allowed to go into effect. Public

comments must be received or

postmarked on or before March 1, 2021.

ADDRESSES

: You may submit comments

by one of the following methods:

(1) Electronically: Go to the Federal

eRulemaking Portal: http://

www.regulations.gov. In the Search box,

enter FWS–HQ–MB–2018–0090, which

is the docket number for the rule. Then,

click on the Search button. You may

submit a comment by clicking on

‘‘Comment Now!’’ Please ensure you

have located the correct document

before submitting your comments.

(2) By hard copy: Submit by U.S. mail

to: Public Comments Processing, Attn:

FWS–HQ–MB–2018–0090, U.S. Fish

and Wildlife Service, MS: JAO/3W,

5275 Leesburg Pike, Falls Church, VA

22041–3803.

We request that you send comments

only by the methods described above.

We will post all comments on https://

www.regulations.gov. This generally

means that we will post any personal

information you provide us (see Public

Comments, below, for more

information).

FOR FURTHER INFORMATION CONTACT

:

Jerome Ford, Assistant Director,

Migratory Birds, at 202–208–1050.

SUPPLEMENTARY INFORMATION

: On

January 7, 2021, we, the U.S. Fish and

Wildlife Service (USFWS), published a

final 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. During the

course of review, the Office of

Information and Regulatory Affairs

(OIRA) of the Office of Management and

Budget (OMB), based on information

provided by the USFWS, determined

that the MBTA rule was economically

significant under Executive Order

12866, because it was likely to have an

annual effect on the economy of $100

million or more, and that it was

therefore a ‘‘major rule’’ under subtitle

E of the Small Business Regulatory

Enforcement Fairness Act (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)).

Notwithstanding this statutory

requirement, the MBTA rule was

published in the Federal Register

without the requisite delay. This final

rule corrects the effective date to March

8, 2021, in accordance with the CRA.

The statutory provisions at issue in

the MBTA rule have been the subject of

repeated litigation. The final rule

interpreted the scope of the MBTA to

exclude incidental take of migratory

birds—codifying Solicitor’s Opinion

M–37050 and rejecting several decades

of past agency practice concluding that

the MBTA prohibits the incidental take

of migratory birds. However, in August

2020, a court vacated Solicitor’s

Opinion M–37050, as contrary to the

MBTA (Natural Resources Defense

Council v. U.S. Department of the

Interior, No. 18–CV–4596 (VEC), 2020

WL 4605235 (S.D.N.Y. Aug. 11, 2020)).

In late January 2021, two new lawsuits

were filed that challenge the legal basis

for the final rule: Nat’l Audubon Soc’y

v. U.S. Fish and 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).

In addition, on January 20, 2021, the

White House issued a memorandum (86

FR 7424, January 28, 2021) instructing

Federal agencies to consider postponing

the effective date of any rules that have

published in the Federal Register but

not yet taken effect, for the purpose of

reviewing any questions of fact, law,

and policy they may raise. The

memorandum directs that, for rules

postponed in this manner, where

appropriate and consistent with

applicable law, agencies consider

opening a comment period to allow

interested parties to provide comments

about issues of fact, law, and policy

raised by those rules, and consider any

petitions for reconsideration involving

such rules.

For the reasons explained above, in

accordance with the Congressional

Review Act, we are delaying the

effective date of the MBTA rule we

published on January 7, 2021 (86 FR

1134). The original effective date of the

rule was February 8, 2021; with this

document, we are changing the effective

date of the rule to March 8, 2021, 60

days from its initial publication.

Immediate implementation of the

MBTA rule on March 8, 2021,

significantly impacts the public interest.

Specifically, the public has a strong

interest in conserving the migratory bird

resource and fulfilling shared objectives

and obligations with a treaty partner,

Canada. These interests could be

harmed by allowing this regulation to

take effect on its current effective date.

First, as noted in the environmental

impact statement (EIS) developed to

analyze the impacts of the MBTA rule

(85 FR 76077, November 27, 2020), its

implementation may have significant

impacts on migratory bird species and

other resources. The EIS concluded that

implementing the MBTA rule may have

significant impacts on migratory birds,

vegetation, other wildlife, and

associated ecosystem services and other

economic activities, but admitted that

data are not readily quantifiable and

available to determine the magnitude of

those impacts. Neither the EIS nor the

associated record of decision (‘‘ROD’’)

set forth a monitoring plan to ascertain

the magnitude of those impacts after

implementation of the final rule. Thus,

there is a high likelihood that the public

interest in these resources will be

harmed given that the magnitude of the

impacts is likely significant but

unknown and no monitoring plan is in

place to determine that magnitude.

Second, further delay of the effective

date may make it possible to avoid

costly and unnecessary litigation. As

noted above, the District Court for the

Southern District of New York, in

vacating Solicitor’s Opinion M–37050,

has already expressly rejected the legal

rationale of the MBTA rule, and two

additional suits have been filed

challenging the MBTA rule itself.

Third, further consideration of

concerns expressed by one of our treaty

partners may counsel in favor of further

delay of the effective date of the MBTA

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 MBTA rule both

during and after the rulemaking process,

including providing comments on the

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 stated 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

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Federal Register / Vol. 86, No. 25 / Tuesday, February 9, 2021 / Rules and Regulations

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.’’

Therefore, we invite public comments

on the MBTA rule to allow interested

parties to provide comments about

issues of fact, law, and policy raised by

that rule, and so that we can consider

any petitions for reconsideration

involving the rule. We also invite public

comments on whether the rule should

be amended, rescinded, delayed

pending further review by the agency, or

allowed to go into effect. In particular,

the USFWS would appreciate comments

on the scope of the MBTA as it applies

to conduct resulting in the injury or

death of migratory birds protected by

the MBTA, the impact of the MBTA rule

on our treaty partners, the impact of the

MBTA rule on regulated entities, the

effect of the pending litigation on the

MBTA rule, and the appropriateness of

delaying the effective date of the MBTA

rule beyond March 8, 2021. The USFWS

will consider these comments in

reviewing the MBTA rule. See

DATES

and

ADDRESSES

, above, and Public

Comments, below, for more information

on submitting comments.

Public Comments

You may submit your comments and

materials concerning the rule by one of

the methods listed in

ADDRESSES

.

Comments must be submitted to http://

www.regulations.gov before 11:59 p.m.

(Eastern Time) on the date specified

under Written comments in

DATES

. We

will not consider mailed comments that

are not postmarked by the date specified

under Written comments in

DATES

.

Comments previously submitted need

not be resubmitted and will be fully

considered in our review of the rule.

We will post your entire comment—

including your personal identifying

information—on http://

www.regulations.gov. If you provide

personal identifying information in your

comment, you may request at the top of

your document that we withhold this

information from public review.

However, we cannot guarantee that we

will be able to do so. Comments and

materials we receive will be available

for public inspection on http://

www.regulations.gov.

Administrative Procedure Act

Our implementation of this action

delaying the effective date of the MBTA

rule from February 8, 2021, to March 8,

2021, without opportunity for public

comment, effective immediately upon

filing for publication in the Federal

Register, is based on the good cause

exceptions provided in the

Administrative Procedure Act. Pursuant

to 5 U.S.C. 553(b)(B), we have

determined that good cause exists to

forgo the requirement to provide prior

notice and an opportunity for public

comment thereon for this rule as such

procedures are unnecessary where the

agency lacks discretion to choose an

alternative course of action. As

discussed above, the change of the

effective date to March 8, 2021, is being

made to comply with the 60-day

effective date delay for major rules

provided for in the Congressional

Review Act. 5 U.S.C. 801(a)(3). For the

same reasons discussed above, USFWS

finds that there is good cause to waive

the effective date delay under 5 U.S.C.

553(d)(3) and 5 U.S.C. 808(2).

Authority: The authorities for this action

are 16 U.S.C. 668a–d, 703–712, 742a–j–l,

1361–1384, 1401–1407, 1531–1543, 3371–

3378; 18 U.S.C. 42; and 19 U.S.C. 1202.

Shannon A. Estenoz,

Senior Advisor to the Secretary, Exercising

the Delegated Authority of the Assistant

Secretary for Fish and Wildlife and Parks.

[FR Doc. 2021–02667 Filed 2–5–21; 11:15 am]

BILLING CODE 4333–15–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 635

[Docket No. 180117042–8884–02; RTID

0648–XA795]

Atlantic Highly Migratory Species;

Atlantic Bluefin Tuna Fisheries

AGENCY

: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION

: Temporary rule; Purse Seine

category annual quota adjustment; quota

transfer.

SUMMARY

: NMFS is adjusting the

Atlantic bluefin tuna (BFT) Purse Seine

and Reserve category quotas for 2021, as

it has done annually since 2015. NMFS

also is transferring 26 metric tons (mt)

of BFT quota from the Reserve category

to the General category January 2021

subquota period (from January 1

through March 31, 2021, or until the

available subquota for this period is

reached, whichever comes first). The

transfer to the General category is based

on consideration of the regulatory

determination criteria regarding

inseason adjustments and applies to

Atlantic tunas General category

(commercial) permitted vessels and

Highly Migratory Species (HMS)

Charter/Headboat category permitted

vessels with a commercial sale

endorsement when fishing

commercially for BFT.

DATES

: Effective February 8, 2021,

through December 31, 2021.

FOR FURTHER INFORMATION CONTACT

:

Sarah McLaughlin, sarah.mclaughlin@

noaa.gov, 978–281–9260, Nicholas

Velseboer, nicholas.velseboer@

noaa.gov, 978–675–2168, or Larry Redd,

Jr., larry.redd@noaa.gov, 301–427–8503.

SUPPLEMENTARY INFORMATION

:

Regulations implemented under the

authority of the Atlantic Tunas

Convention Act (ATCA; 16 U.S.C. 971 et

seq.) and the Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act; 16 U.S.C. 1801

et seq.) governing the harvest of BFT by

persons and vessels subject to U.S.

jurisdiction are found at 50 CFR part

635. Section 635.27 subdivides the U.S.

BFT quota recommended by the

International Commission for the

Conservation of Atlantic Tunas (ICCAT)

and as implemented by the United

States among the various domestic

fishing categories, per the allocations

established in the 2006 Consolidated

Atlantic HMS Fishery Management Plan

(2006 Consolidated HMS FMP) (71 FR

58058, October 2, 2006), and

amendments. NMFS is required under

ATCA and the Magnuson-Stevens Act to

provide U.S. fishing vessels with a

reasonable opportunity to harvest the

ICCAT-recommended quota.

Annual Adjustment of the BFT Purse

Seine and Reserve Category Quotas

The current baseline Purse Seine,

General, and Reserve category quotas

are codified as 219.5 mt, 555.7 mt, and

29.5 mt, respectively. See § 635.27(a).

Pursuant to § 635.27(a)(4), NMFS has

determined the amount of quota

available to the Atlantic Tunas Purse

Seine category participants in 2021,

based on their BFT catch (landings and

dead discards) in 2020. In accordance

with the regulations, NMFS makes

available to each Purse Seine category

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