Earlier this month, the Department of the Interior announced that it would freeze implementation of the controversial Trump-era rule that changed the enforcement of the Migratory Bird Treaty Act to no longer apply to incidental take, which was set to go into effect on Feb. 8.

The U.S. Fish and Wildlife Service reopened the public comment period for an additional 20 days and today the Ornithological Council submitted comments on the rule, drawing on previous comments submitted by the OC in response to the scoping notice in February 2020 and the draft environmental impact statement in July 2020. The comments stressed the inadequacy of the environmental analysis performed on the rule and encouraged the agency to revert to the previous interpretation of the MBTA.

Withdrawal of the rule by the Biden administration would not be entirely surprising; Rep. Deb Haaland (D-N.M.), who has been nominated for Secretary of the Interior, co-sponsored a bill during the last Congress to reverse the Trump administration’s reinterpretation of the MBTA.

The final rule is also the subject of litigation, after a court in August struck down the internal Interior memo on which the new rule is based. The Trump administration had indicated its intent to appeal that case; but last month, the Biden administration asked for more time to consider whether to withdraw.  In addition, environmental groups filed suit in two different cases in January asking the federal court to strike down the new rule. 

Read the OC’s comments: OC comments MBTA reopened Feb 2021