Overview
Title
Regulations Governing Take of Migratory Birds; Delay of Effective Date
Agencies
ELI5 AI
The U.S. Fish and Wildlife Service made a rule about how we treat certain birds, but they decided to take extra time to think about it and ask people for their ideas. They want to make sure it's the best rule before it starts.
Summary AI
On January 7, 2021, the U.S. Fish and Wildlife Service published a final rule concerning the Migratory Bird Treaty Act (MBTA) which aimed to exclude incidental take of migratory birds from prohibited activities. However, the rule's effective date, initially set for February 8, 2021, has been delayed to March 8, 2021. This decision follows the Congressional Review Act, ongoing litigation, and concerns from the Canadian government. The delay allows for further review and public comment on whether the rule should be amended, further delayed, or rescinded entirely.
Abstract
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.
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AnalysisAI
The document in question is a formal rule issued by the U.S. Fish and Wildlife Service regarding the Migratory Bird Treaty Act (MBTA). Initially published on January 7, 2021, the rule sought to define what constitutes prohibited conduct concerning the injury or death of migratory birds protected under the MBTA. However, the implementation of this rule has been delayed from February 8, 2021, to March 8, 2021, allowing for further review and public commentary.
General Summary
The key focus of this regulation, known as the MBTA rule, is to address how the law applies to activities that incidentally harm migratory birds. The term "incidental take" refers to accidental or unintended injuries or deaths of these birds resulting from various human activities. Delaying the rule’s effective date gives the government time to consider public comments, evaluate ongoing legal challenges, and address international concerns, particularly those expressed by Canada, with whom the U.S. shares a migratory bird treaty.
Significant Issues or Concerns
There are several issues evident within this document:
Legal and Technical Complexity: The document employs a considerable degree of technical jargon and legal references, which may not be readily accessible or understandable to readers without a legal background. Terms like "incidental take" and "Executive Order 12866" might confuse or alienate a general audience.
Lack of Clarity on Impacts and Costs: While the document references an Environmental Impact Statement (EIS) that identifies possible significant impacts on migratory birds, it lacks a comprehensive summary of these findings or any supporting data. Additionally, there is little information on the economic or financial implications of the rule’s delay.
Unresolved Legal Matters: The rule is currently facing significant litigation challenges, but the document does not provide a detailed explanation of these lawsuits or their potential repercussions. This might create uncertainty about the rule's future.
Public Engagement: Although there is a call for public comment, the document does not clearly specify what kind of feedback would be most valuable or how such input will influence decision-making, leaving the process somewhat opaque.
Impact on the Public
Broadly, the rule may impact public interests, particularly around environmental conservation efforts. By potentially allowing incidental take of migratory birds, the rule could facilitate certain industrial activities but at a potential ecological cost.
Positive Impacts: - Regulated Entities: Industries such as construction, energy, and agriculture might benefit from reduced legal liability if incidental takes are no longer prohibited, potentially lowering operational risks and compliance costs.
Negative Impacts: - Environmental Concerns: Environmentalists and conservation groups worry about the rule’s potential to weaken protections for migratory birds, which might lead to a decline in bird populations and negatively affect ecosystem balance. - International Relations: The Government of Canada, among others, has expressed concerns, which could strain international treaties related to wildlife conservation.
Thus, stakeholders on all sides have vital interests in the final outcome, balancing economic interests with ecological sustainability. The delay provides a crucial window to potentially re-evaluate and align the rule with broader conservation goals and legal mandates.
Financial Assessment
In the examined document, financial aspects are mentioned primarily in relation to the Migratory Bird Treaty Act (MBTA) rule and its classification under Executive Order 12866. The financial reference is pertinent due to the rule being identified as economically significant. This designation arises because the rule is expected to have an annual effect on the economy of $100 million or more, categorizing it as a "major rule" under the Congressional Review Act (CRA). This monetary threshold implies that the rule's implementation or delay could have extensive economic implications.
Summary of Financial References
The financial aspect of the document centers around the rule's classification as economically significant. This classification suggests that any policies associated with the rule have the potential to influence significant revenue flows within the economy, potentially affecting industries or sectors involved with migratory bird activities, either conservation-focused or otherwise. However, the document does not provide detailed financial repercussions of delaying the rule or the specific financial impacts on different stakeholders.
Relation to Identified Issues
One of the issues identified is the lack of specific details on the financial implications of delaying the MBTA rule's effective date. While the document informs readers that the rule reaches the $100 million economy-impact threshold, it fails to explain what this means in terms of specific benefits or costs to government agencies, businesses, or other stakeholders. This omission leaves ambiguity regarding the financial stakes involved for entities affected by the MBTA rule.
Additionally, the absence of a clear financial analysis relating to the Environmental Impact Statement (EIS) results in a vague understanding of how financial resources might need to be allocated to mitigate any potential significant impacts noted in the EIS. The document does not provide a compelling financial narrative on whether the MBTA rule will incur costs associated with environmental damage or conservation benefits outweighing fiscal expenditures.
Furthermore, while the publication alludes to potential costly litigation, no specific financial exposure or budget implications of these legal challenges are delineated, leaving gaps in understanding the possible financial liabilities or savings associated with delaying the rule. This lack of specificity forms a barrier for the public and stakeholders, preventing them from fully comprehending the economic stakes of the rule's effective date delay or potential amendment.
In summary, while the document recognizes a substantial economic impact due to the MBTA rule, it lacks articulation of detailed financial consequences or considerations directly related to delaying its implementation. The use of broad economic thresholds as a measure, without further clarification on the direct financial ramifications, leaves stakeholders with an incomplete picture of economic considerations in this regulatory decision.
Issues
• The document lacks specific details on the financial implications of delaying the MBTA rule's effective date. There is no mention of the potential cost to the government or other stakeholders associated with this delay.
• The document provides citation references (e.g., 86 FR 1134) and statutory references (e.g., 16 U.S.C. 703-705) without elaborating on their content, making it difficult for readers without direct access to these references to fully understand the context.
• The legal references and framework, such as the Congressional Review Act and opinions like M-37050, may not be fully understood by readers unfamiliar with these legalities, leading to possible confusion.
• The document discusses significant impacts identified in the Environmental Impact Statement (EIS) but fails to provide a clear summary of these impacts or data supporting the claims, leading to potential ambiguity regarding the magnitude of these impacts.
• The language within the document is fairly technical, legalistic, and complex, which might be difficult for the general public to fully grasp. For example, terms like 'incidental take' and 'E.O. 12866 Regulatory Review' are not explicitly defined.
• The document mentions unresolved litigation but does not clearly explain the nature of the legal challenges or the implications of these challenges, which might be important for understanding the context and potential outcomes.
• The document includes a public call for comments but does not provide clear guidance on the type of comments sought or how these comments will influence the final decision, leading to potential ambiguity about public engagement.