As expected, the Biden administration will invoke the Congressional Review Act (CRA) to delay the effective date of the Trump administration’s proposal to exempt incidental take from liability under the Migratory Bird Treaty Act (MBTA).
The Trump administration rule would have taken effect on 8 February 2021; the Biden administration delay will extend the effective date until 8 March 2021. The new Federal Register notice, to be published on 9 February 2021, will request further public comments to inform the Biden administration’s review of the rule while at the same time clearly signaling its disfavor.
The Federal Register notice does not specify how the Biden administration plans to dispose of the rule. At this juncture, it could either seek invalidation by Congress pursuant to the CRA, initiate a new rulemaking under the Administrative Procedure Act to formally rescind or modify the rule, or simply leave it to the courts to decide once the rule is challenged immediately upon taking effect, as it no doubt would be.
Regardless of which approach is taken, it is clear the rule is not long for this world. The bigger question is what will replace it: the same kind of ad hoc management by prosecutorial discretion employed by the Obama administration, or resuscitation of the U.S. Fish and Wildlife Service’s stalled 2015 proposal to create an incidental take permitting program, or something else altogether. Stay tuned.
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