Regulations Governing Take of Migratory Birds; Delay of Effective Date

Cited as86 FR 8715
CourtFish And Wildlife Service
Publication Date09 Feb 2021
Record Number2021-02667
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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