Federal Register / Vol. 86, No. 25 / Tuesday, February 9, 2021 / Rules and Regulations 8715 

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 costeffectiveness. 

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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8716 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/environmentclimate-change/news/2020/12/ministerwilkinson-expresses-concern-overproposed-regulatory-changes-to-theunited-states-migratory-bird-treatyact.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 8717 

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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