[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7345-7352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02076]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 29

[Docket No. FWS-HQ-NWRS-2022-0106; FXRS12610900000-212-FF09R20000]
RIN 1018-BG78


National Wildlife Refuge System; Biological Integrity, Diversity, 
and Environmental Health

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; proposed policy updates.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose new 
regulations to ensure that the biological integrity, diversity, and 
environmental health (BIDEH) of the National Wildlife Refuge System 
(Refuge System) are maintained, and where appropriate, restored and 
enhanced, in accordance with the National Wildlife Refuge System 
Improvement Act of 1997. In addition, the Service is proposing updates 
to the existing BIDEH policy, which will be available for public 
comment concurrently with the proposed regulations in this docket. 
These proposed regulatory and policy revisions would support 
conservation throughout the Refuge System in response to both 
longstanding and contemporary conservation challenges, including the 
universal and profound effects of climate change on refuge species and 
ecosystems. Together, these proposals would uphold BIDEH across the 
Refuge System by providing refuge managers with a consistent approach 
for evaluating and implementing management actions to protect 
vulnerable species, restore and connect habitats, promote natural 
processes, sustain vital ecological functions, increase resilience, and 
adapt to climate change.

DATES: We will accept comments on the proposed rule and proposed 
revisions to the Service Manual chapter at 601 FW 3 that are received 
or postmarked on or before March 4, 2024.

ADDRESSES: 
    Document availability: This proposed rule and the draft Service 
Manual chapter 601 FW 3 are available at the Federal eRulemaking 
Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-
NWRS-2022-0106, which is the docket number for this rulemaking. Then, 
click on the Search button. To access the Service Manual chapter, go to 
the tab for Supporting & Related Material.
    Comment submission: You may submit comments on this proposed rule 
or the proposed revisions to 601 FW 3 by one of the following methods:
    <bullet> Electronically: Go to the Federal eRulemaking Portal: 
https://www.regulations.gov. In the Search box, enter FWS-HQ-NWRS-2022-
0106, which is the docket number for this rulemaking. Then, click on 
the Search button. On the resulting screen, find the correct document 
and submit a comment by clicking on ``Comment.''
    <bullet> By hard copy: Submit by U.S. mail or hand delivery to: 
Public Comments Processing, Attn: FWS-HQ-NWRS-2022-0106; U.S. Fish and 
Wildlife Service; 5275 Leesburg Pike, MS: PRB (JAO/3W); Falls Church, 
VA 22041-3803.
    We will not accept email or faxes. We will post all comments on 
https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see Request for Comments, below, 
for more information).

FOR FURTHER INFORMATION CONTACT: Katherine Harrigan, (703) 358-2440, 
<a href="/cdn-cgi/l/email-protection#0c676d7864697e65626953646d7e7e656b6d624c6a7b7f226b637a"><span class="__cf_email__" data-cfemail="cca7adb8a4a9bea5a2a993a4adbebea5abada28caabbbfe2aba3ba">[email protected]</span></a>. Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.
    In compliance with the Providing Accountability Through 
Transparency Act of 2023, please see docket FWS-HQ-NWRS-2022-0106 on 
https://www.regulations.gov for a document that summarizes this 
proposed rule.

SUPPLEMENTARY INFORMATION:

Background

    The National Wildlife Refuge System is the only network of Federal 
lands and waters in the United States dedicated to fish and wildlife 
conservation and, at more than 850 million acres, the largest system of 
its kind in the world. The National Wildlife Refuge System 
Administration Act of 1966 (Administration Act; 16 U.S.C. 668dd-668ee), 
as amended by the National Wildlife Refuge System Improvement Act of 
1997 (Improvement Act; Pub. L. 105-57), is the primary statutory 
authority under which the Secretary of the Interior, acting through the 
Service, administers the Refuge System. The Alaska National Interest 
Lands Conservation Act of 1980 (16 U.S.C. 3111-3126), the Wilderness 
Act of 1964

[[Page 7346]]

(16 U.S.C. 1131-1136), and various other mandates also provide 
direction and authority for refuge management. The implementing 
regulations for Refuge System mandates are found in title 50 of the 
Code of Federal Regulations (CFR) at subchapter C.
    The Improvement Act established the mission of the Refuge System to 
administer a national network of lands and waters for the conservation, 
management, and where appropriate, restoration of fish, wildlife, and 
plant resources and their habitats within the United States for the 
benefit of present and future generations of Americans. (16 U.S.C. 
668dd(a)(2)). It set forth policy direction, management standards, and 
stewardship requirements for administering the more than 560 national 
wildlife refuges in the Refuge System, prioritizing conservation while 
ensuring public access to compatible, wildlife-dependent recreational 
opportunities and ensuring effective coordination with adjacent 
landowners and State fish and wildlife agencies. The law states that 
each refuge must be managed to fulfill both the Refuge System mission 
and the specific purposes for which that refuge was established. It 
additionally requires that, in administering the Refuge System, the 
Secretary shall ensure that the biological integrity, diversity, and 
environmental health of the Refuge System are maintained for the 
benefit of present and future generations of Americans. (16 U.S.C. 
668dd(a)(4)(B)).
    The Improvement Act is recognized as a visionary legislative 
charter for managing a system of wildlife reserves in part due to its 
mandate to ensure BIDEH. The terms comprising the BIDEH mandate are 
grounded in conservation biology and demonstrate congressional intent 
to conserve Refuge System fish, wildlife, plants, and habitats in 
accordance with the latest scientific understanding. This directive for 
a comprehensive, science-based approach to refuge management is 
critical to ensuring that imperiled species and diverse wildlife 
populations in North America are secure and thriving, sustained by a 
network of healthy lands and waters.

Need for New Regulations and Updated Policy

    In 1998, the Service announced our intent to issue policy and 
regulations to administer the Improvement Act (63 FR 3583, January 23, 
1998). In 2000, we published a draft policy on maintaining the 
ecological integrity of the Refuge System (65 FR 61356, October 17, 
2000). After considering the comments received on the draft policy, the 
Service issued its BIDEH policy in 2001 (66 FR 3810, January 16, 2001). 
Included in the Service Manual at 601 FW 3, the policy provides 
internal guidance for agency implementation of the statutory 
requirements.
    At the time the Service adopted the BIDEH policy, we did not 
promulgate BIDEH regulations as authorized in the Improvement Act. (See 
16 U.S.C. 668dd(b)(5)). The Service did not anticipate the extent of 
climate change impacts on refuge species and habitats or the need to 
clarify in regulations our interpretation of and authority to implement 
the BIDEH mandate. However, in the nearly 25 years since enactment of 
the Improvement Act, refuges have begun to experience the effects of 
climate change while continuing to contend with the myriad of other 
anthropogenic stressors affecting fish, wildlife, plants, and their 
habitats. Climate change is transforming historical species composition 
and ecological function of habitats, creating new challenges to 
traditional wildlife management strategies that were based on stable, 
stationary baseline conditions. As the Refuge System becomes 
increasingly vital to addressing the dual threats of biodiversity loss 
and climate change, the Service recognizes the need to codify both 
existing and new practices for maintaining BIDEH to assist refuges in 
responding to these contemporary conservation challenges. Therefore, 
the Service has identified the need to propose new BIDEH regulations 
and updates to the existing BIDEH policy to accomplish these goals.
    The purpose of this proposed rule and policy revision is to clarify 
the Service's authority to maintain the biological integrity, 
diversity, and environmental health of the Refuge System; ensure 
consistency in evaluating refuge management activities that affect 
BIDEH; and provide transparency in how we implement one of the most 
fundamental mandates in the laws governing the Refuge System. The 
proposed rule would codify longstanding refuge management principles 
and further empower refuge managers to uphold the Refuge System's 
conservation mission and achieve refuge purposes in the face of complex 
threats to wildlife and their habitat. The proposed policy revision 
would modernize the BIDEH policy and support the new regulations by 
providing further guidance for refuge managers to ensure the BIDEH of 
the Refuge System.
    The Service currently operates and has always operated in 
accordance with the same Refuge System-wide principles for maintaining 
BIDEH represented in these proposed regulations and policy updates. 
However, the Service has determined that this proposed rule and policy 
revision is warranted to clarify Refuge System policies and practices; 
better prepare refuges to confront future impacts from climate change 
and other anthropogenic change; and provide the opportunity for public 
input on the Service's interpretation of the Improvement Act's BIDEH 
mandate, including its application in the context of predator control, 
conservation translocations, genetically engineered organisms, invasive 
species, pesticide use, agricultural practices, and mosquito control.

Proposed Additions to Existing Regulations

    This proposed rule would amend the Refuge System regulations at 50 
CFR subchapter C, part 29 (Land Use Management), subpart A (General 
Rules). The proposed regulatory changes would not modify any existing 
regulations but would add regulations regarding BIDEH at a new Sec.  
29.3.
    Consistent with the Administration Act as amended by the 
Improvement Act, the Service is proposing regulations to ensure that 
the biological integrity, diversity, and environmental health of the 
Refuge System are maintained and, where necessary and appropriate, 
restored and enhanced. As shown in the rule portion of this document, 
the proposed regulations set forth an overarching statement in 
paragraph (a) describing what it means for the Service to ensure BIDEH; 
definitions for biological integrity, diversity, environmental health, 
and other key regulatory terms in paragraph (b); and overall directives 
for ensuring BIDEH on refuges in paragraph (c). Together these proposed 
regulations would provide a consistent framework within which refuge 
managers would consider potential management actions that may affect 
BIDEH. In addition, in paragraph (d), the proposed regulations also 
provide more specific direction for certain management activities that 
the Service has identified as having a particular propensity to affect 
BIDEH.
    Notably, the proposed regulatory standard repeated throughout the 
regulations--requiring refuge managers to consider how management 
actions are necessary to meet statutory requirements, fulfill refuge 
purposes, and ensure BIDEH--flows directly from the Improvement Act. In 
the statute's requirements for administering the Refuge System, 
Congress elevated ensuring the maintenance of BIDEH to a similar level 
of importance as ensuring that the Refuge System mission and

[[Page 7347]]

refuge purposes are carried out, challenging the Service to implement 
these integral directives together to provide the greatest conservation 
benefits for fish and wildlife. (See 16 U.S.C. 668dd(a)(4)). The 
content of the proposed regulations and policy revision is further 
described below.

Proposed BIDEH Regulations and Accompanying Policy Updates

    The Service is concurrently proposing updates to the BIDEH policy, 
601 FW 3, which accord with and provide additional internal guidance 
for implementing the proposed regulations. We have decided to provide 
these documents for public comment concurrently because the proposed 
policy revision supplies further explanation for the application of the 
proposed regulations and therefore provides additional context for 
reviewing the proposed regulations.

Ensure Biological Integrity, Diversity, and Environmental Health

    In Sec.  29.3(a), the Service is proposing an overarching statement 
in support of the Refuge System's conservation mission defining what it 
means to ensure BIDEH on refuges, which is a concept integrated 
throughout the proposed BIDEH policy revision. The regulatory statement 
would promote management of the Refuge System as an interconnected 
network of lands and waters with functioning ecological processes to 
maintain the composition, activity, and resilience of the Refuge System 
over time. This concept means recognizing the Refuge System as an 
expansive complex of plant communities, habitats, and ecosystems 
representative of variable conditions and supporting a diversity of 
fish and wildlife, including viable populations of rare and imperiled 
species. This proposed regulation would codify the Service's continued 
commitment to managing refuge ecosystems holistically as components of 
larger landscapes and seascapes and supporting natural processes to 
meet our conservation goals, while also acknowledging that climate 
change and other anthropogenic change can require intervention to carry 
out the Refuge System mission and achieve refuge purposes. This 
commitment and acknowledgement are further distilled in the proposed 
policy updates.
    The proposed regulatory statement includes a legal standard for 
managing refuges that would apply to each of the subsequent management 
directives and activities in the proposed rule when the Service refers 
to an action as being necessary to ensure BIDEH. This proposed legal 
standard would instruct refuge managers to use their sound professional 
judgment, informed by the best available scientific information, to 
ensure that management actions benefit wildlife conservation by 
contributing to, and not diminishing, BIDEH. The Service uses the term 
``sound professional judgment'' as defined in the Improvement Act and 
existing Refuge System regulations, directing refuge managers to make 
their finding, determination, or decision to conduct an activity 
consistent with principles of sound fish and wildlife management and 
available science and resources, as well as their field experience and 
knowledge of the particular refuge's resources. This proposed 
requirement would foster defensible science-based management decisions, 
strengthen management actions that support ecological integrity, 
bolster decision making that avoids putting BIDEH at risk, and help 
prevent further degradation of environmental conditions on refuges. The 
proposed updates to the BIDEH policy would incorporate this legal 
standard throughout the policy revision as well.

Definitions

    In both the new regulations and policy revision, the Service is 
proposing updated definitions for biological integrity, diversity, and 
environmental health based on definitions used in the Service's 
existing BIDEH policy, 601 FW 3, that were vetted through public notice 
and comment in 2000 and 2001 (66 FR 3810, January 16, 2001). The 
Service is proposing to revise these definitions to acknowledge that 
historical conditions may need to serve as a reference point, rather 
than an end goal, for managing refuges where climate change and other 
anthropogenic change are significantly altering ecosystems. This 
proposed language would untether current and future management actions 
from sustaining historical conditions that may no longer be possible on 
many refuges, while continuing to recognize the value of a contextual 
historical baseline for developing management goals. The Service also 
proposes to update the definitions by explicitly recognizing the 
impacts of climate change and other anthropogenic change on refuge 
ecosystems, which is critical to understanding the three BIDEH terms in 
their proper context, both now and in the future.
    The Service is also including proposed definitions for other terms 
helpful to understanding the proposed regulations and policy. These 
terms all have established meanings either in wildlife biology, in 
existing Service policy, in other Federal law and policy, or in some 
combination of these. The Service has not departed from the accepted 
meanings in crafting these regulatory definitions, but we did find it 
necessary in the interest of greater clarity to tailor them to the 
BIDEH context. The proposed updates to the BIDEH policy also include 
some additional proposed definitions that would provide further context 
for the content expanding on the proposed regulations in the policy 
itself.

Management Directives for Ensuring Biological Integrity, Diversity, and 
Environmental Health

    Proposed Sec.  29.3(c) would include Refuge System-wide directives 
for maintaining BIDEH in refuge management. These directives--
concerning universal concepts of climate, habitat, species, water, 
soil, and air--would create a framework within which refuge managers 
can determine and implement management activities. These fundamental 
directives are common to all refuges and would provide basic sideboards 
to guide management decisions consistent with other applicable law, 
regulation, and policy. They are central to the Service's ability to 
meet our statutory obligations and policy goals under the Improvement 
Act and are specifically relevant to fulfilling refuge purposes and 
ensuring BIDEH. The Service proposes further guidance for these 
management directives in section 3.10 of the proposed BIDEH policy 
accompanying these proposed regulations.
    In the proposed regulation at paragraph (c)(1) and associated 
policy updates, the Service acknowledges that climate change and other 
anthropogenic change are affecting refuge fish, wildlife, plants, and 
habitats. The proposed language would direct refuge managers to address 
these threats through adaptation and mitigation strategies as necessary 
to meet statutory requirements, fulfill refuge purposes, and ensure 
BIDEH. This proposed regulation and accompanying policy revision 
recognize that climate change is a major driver in species decline and 
biodiversity loss, while ecosystem conservation can serve an essential 
role in both climate change mitigation and adaptation, as well as 
species survival and recovery. They would therefore allow refuge 
managers flexibility to implement a combination of responses to address 
climate change impacts and other anthropogenic stressors, providing 
discretion for managers to choose the most appropriate mitigation and 
adaptation strategies on a particular

[[Page 7348]]

refuge, so long as they meet the proposed regulatory standard.
    The proposed regulation at paragraph (c)(2) and associated policy 
updates would prioritize deference to natural processes and support 
ecological connectivity as a means of achieving refuge habitat 
objectives and landscape planning goals. However, when natural 
processes are insufficient to meet refuge habitat objectives, the 
proposed language would direct managers to intervene with science-based 
management techniques that mimic natural processes in accordance with 
the proposed regulatory standard. Examples of such management 
techniques are provided in the accompanying policy. The proposed 
regulation and associated policy updates would also instruct managers 
to use such techniques and encourage establishment of wildlife 
corridors to facilitate adaptation to climate change and other 
stressors.
    The proposed regulation at paragraph (c)(3) and associated policy 
updates would similarly codify the Service's ability to supplement 
natural processes to meet fish and wildlife population objectives, 
sustain ecosystems, and restore or recover imperiled species on refuges 
when habitat conditions and natural processes are insufficient. It 
would work in tandem with the regulation under proposed paragraph 
(c)(2) to prioritize deference to natural processes as the default for 
determining sustainable populations, while also providing flexibility 
to take actions to conserve and manage species when necessary to meet 
statutory requirements, fulfill refuge purposes, and ensure BIDEH. The 
associated policy updates provide examples of such supplemental 
management actions and guidance for maintaining native populations.
    The regulation regarding refuge water rights at proposed paragraph 
(c)(4) stems directly from Improvement Act mandates, as reiterated in 
the associated policy updates. The proposed regulation and policy would 
incorporate these legal requirements, directing the Service to maintain 
and exercise refuge water rights in accordance with local, State, and 
Federal laws and to acquire, transfer, or lease water rights in 
accordance with the proposed regulatory standard. The proposed policy 
updates would provide substantive guidance for refuge managers to 
follow to uphold refuge water rights and would further empower them to 
pursue and secure critical water assets to support the myriad of 
migratory birds, fish, and other wildlife that rely on refuge habitats.
    Finally, the proposed regulation at paragraph (c)(5) and associated 
policy updates would direct refuge managers to promote and maintain 
soil health and air quality as other abiotic components vital for 
sustaining and restoring refuge habitats in addition to water quantity 
and quality. The regulation would instruct the Service to conserve and 
manage these essential resources within our jurisdiction in accordance 
with the regulatory standard and address threats to them through 
appropriate management actions. The proposed policy updates provide 
additional guidance to explain how refuge managers would maintain these 
foundational resources to support healthy ecosystems and ensure the 
BIDEH of the Refuge System.

Management Activities and Uses for Ensuring Biological Integrity, 
Diversity, and Environmental Health

    The regulations in proposed Sec.  29.3(d) would guide specific 
management activities and uses that can especially influence BIDEH, 
including predator control, conservation translocations, use of 
genetically engineered organisms, invasive species management, 
pesticide use, agricultural uses, and mosquito control. These proposed 
regulations are not intended to cover the range of management practices 
conducted on refuges that may affect BIDEH. Rather, the Service 
carefully selected these topics to codify and clarify our existing 
policies regarding these management activities and uses, improve our 
ability to respond to climate change and other anthropogenic factors, 
and empower refuge managers to consistently analyze and apply these 
tools--or refrain from applying them--as appropriate, to better support 
BIDEH. The Service proposes further guidance for these management 
activities and uses in section 3.13 of the proposed BIDEH policy 
accompanying these proposed regulations.
    The management activities and uses included in these proposed 
regulations and associated policy updates would be implemented on 
Refuge System habitats in conformance with the overall management 
directives in proposed Sec.  29.3(c) and section 3.10 of the policy. 
This would mean that these activities and uses are all subject to the 
underlying conservation principle that defers to natural processes and 
favors management that mimics natural processes. When natural processes 
alone are insufficient to support ecological functions, refuge managers 
would be required to evaluate the necessity for and potential 
environmental effects of a proposed management activity or use in 
accordance with the National Environmental Policy Act (NEPA) before 
authorizing it, including considering reasonable alternatives, 
scientific support, and potential risk of unintended consequences. This 
approach is consistent with current Service policies.
    Additionally, while each of the regulations in proposed paragraphs 
(d)(1)-(7) would direct a default position regarding use of a 
particular management practice, they simultaneously would provide 
flexibility to implement them as conservation tools when determined, 
based on comprehensive analysis, that they are necessary to meet 
statutory requirements, fulfill refuge purposes, and ensure BIDEH. 
Notably, NEPA analysis of management activities and uses could occur as 
part of development of a refuge's comprehensive conservation plan (CCP) 
or other approved management plan or could be conducted as a standalone 
analysis. Regardless, such activities and uses must be consistent with 
the CCP. Refuge managers must also fulfill other policy and legal 
requirements prior to implementing a management activity or use when 
applicable. This could include conducting scientific peer review (see 
section 3.14(C) of the proposed policy for more information on peer 
review requirements) or conducting a compatibility determination for 
refuge management economic activities or activities that involve use of 
a refuge by the public or other non-Refuge System entity (see the 
Service's Compatibility policy at 603 FW 2 and regulations at 50 CFR 
parts 25, 26, and 29 for more information). See the proposed 
regulations and associated policy updates for further substantive 
details and instruction for the management activities and uses 
contained in this proposed rule and policy revision.

Coordination With Adjacent Landowners, State and Tribal Partners

    The Service recognizes that ensuring the BIDEH of the Refuge System 
necessitates a landscape-level perspective for managing an 
interconnected network of lands and waters involving collaboration with 
our State and Tribal partners, adjacent landowners, and other 
stakeholders. These proposed regulations and policy updates comply with 
and incorporate the Service's commitment to cooperate and coordinate 
with State partners, as appropriate, in accordance with 43 CFR 24.4(e) 
and 601 FW 7. They also encourage effective interaction and 
coordination with other owners of land adjoining refuges. The proposed

[[Page 7349]]

regulations and policy updates additionally comply with and uphold the 
Service's continued commitment to cooperate and coordinate with 
federally recognized Tribes and other Indigenous Peoples, consistent 
with the Service's Native American Policy at 510 FW 1, to protect 
treaty, religious, subsistence, and cultural interests in the Refuge 
System. Further, the Service proposes to identify and define Indigenous 
Knowledge in the policy updates as an appropriate source of historical 
information that would support best available scientific information 
about historical conditions as a reference point for management 
decisions.

Request for Comments

    You may submit comments and materials on this proposed rule by 
either one of the methods listed in ADDRESSES. We will not accept 
comments sent by email or fax or to an address not listed in ADDRESSES. 
We will not consider comments that are not postmarked by the date 
specified in DATES.
    We will post your entire comment on https://www.regulations.gov. 
Before including personal identifying information in your comment, you 
should be aware that we may make your entire comment--including your 
personal identifying information--publicly available at any time. While 
you can ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on https://www.regulations.gov.

Required Determinations

Clarity of This Proposed Rule

    Executive Orders 12866 and 12988 and the Presidential Memorandum of 
June 1, 1998, require us to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this proposed rulemaking action is not significant. The 
proposed rule would simply serve to codify longstanding refuge 
management principles and further empower refuge managers to uphold the 
Refuge System's conservation mission and achieve refuge purposes in the 
face of complex threats to wildlife and their habitat.
    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this proposed rule in a manner consistent with 
these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 
U.S.C. 601 et seq.), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Thus, for a 
regulatory flexibility analysis to be required, impacts must exceed a 
threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). The 
SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities.
    This proposed rule would govern the actions taken by the Service 
but would not create any requirements for or place any regulatory 
compliance burden on private entities. The Service also does not 
anticipate the requirements to promote BIDEH to alter the current 
practices of the Service's cooperative agriculture and water rights 
programs. The Service currently operates and has always operated in 
accordance with the same Refuge System-wide principles for maintaining 
BIDEH represented in these proposed regulations. The Service has 
determined that this proposed rulemaking is warranted to clarify our 
policies and practices, better prepare refuges to confront future 
impacts from climate change and other anthropogenic change, and provide 
the opportunity for public input on our interpretation of the 
Improvement Act's BIDEH mandate, including its application in the 
context of predator control, species introductions, genetically 
engineered organisms, invasive species, pesticide use, agricultural 
practices, and mosquito control. As a result of the internal nature of 
these proposed regulations, this rulemaking action would have no impact 
on small entities.
    Therefore, the Service certifies that this rule, as proposed, would 
not have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). A regulatory flexibility analysis is not required. 
Accordingly, a small entity compliance guide is not required.

Congressional Review Act

    The proposed rule is not a major rule under 5 U.S.C. 804(2). The 
Service anticipates no significant employment or small business 
effects. This proposed rule:
    a. Would not have an annual effect on the economy of $100 million 
or more.
    b. Would not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions.
    c. Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises in 
domestic and export markets.

Unfunded Mandates Reform Act

    Since this proposed rule would apply to management of refuges by 
the Service, it would not impose an

[[Page 7350]]

unfunded mandate on State, local, or Tribal governments or the private 
sector of more than $100 million per year. The proposed rule would not 
have a significant or unique effect on State, local, or Tribal 
governments or the private sector. A statement containing the 
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.) is not required.

Takings (E.O. 12630)

    In accordance with E.O. 12630, this proposed rule would not have 
significant takings implications. This proposed rule would affect only 
management of refuges by the Service.

Federalism (E.O. 13132)

    As discussed under Regulatory Planning and Review and Unfunded 
Mandates Reform Act, above, this proposed rule would not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement under E.O. 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with E.O. 12988, the Department of the Interior has 
determined that this proposed rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the E.O.

Energy Supply, Distribution or Use (E.O. 13211)

    E.O. 13211 requires agencies to prepare statements of energy 
effects for regulations that significantly affect energy supply, 
distribution, and use. Because this proposed rule would uphold and 
enforce existing management principles and practices by the Service on 
refuges, it is not a significant regulatory action under E.O. 12866, 
and we do not expect it to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action, and no statement of energy effects is required.

Consultation and Coordination With Indian Tribal Governments (E.O. 
13175)

    In accordance with E.O. 13175, the Service has evaluated possible 
effects on federally recognized Indian Tribes and has determined that 
there are no effects. Before taking actions, the Service coordinates 
our activities on Service lands and waters with Tribal governments 
having adjoining or overlapping jurisdiction.

Paperwork Reduction Act of 1995 (PRA)

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. The Service may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number.

National Environmental Policy Act

    The Service is required under the National Environmental Policy Act 
(NEPA; 42 U.S.C. 4321 et seq.) to assess the impact of any Federal 
action significantly affecting the quality of the human environment, 
health, and safety. The Service has determined that this proposed rule 
falls under the class of actions covered by the following Department of 
the Interior categorical exclusion: Policies, directives, regulations, 
and guidelines: that are of an administrative, financial, legal, 
technical, or procedural nature; or whose environmental effects are too 
broad, speculative, or conjectural to lend themselves to meaningful 
analysis and will later be subject to the NEPA process, either 
collectively or case-by-case (43 CFR 46.210(i)). Under the proposed 
rule, the Service would take future actions guided by the requirements 
to support BIDEH, but these future actions would be determined and 
taken at the individual refuge level and their environmental impacts 
assessed on a case-by-case basis. Therefore, the environmental impacts 
of the proposed rule are too speculative to lead to meaningful analysis 
at this time. The Service would assess the environmental impact of any 
potential management action mentioned in these regulations prior to 
taking that action on Service lands or waters.

Primary Author

    Katherine Harrigan, Division of Natural Resources and Conservation 
Planning, National Wildlife Refuge System, is the primary author of 
this proposed rulemaking document.

List of Subjects in 50 CFR Part 29

    Public lands mineral resources, Public lands rights-of-way, 
Wildlife refuges.

Proposed Regulation Promulgation

    For the reasons set forth in the preamble, we propose to amend part 
29, subchapter C of chapter I, title 50 of the Code of Federal 
Regulations as set forth below:

PART 29--LAND USE MANAGEMENT

0
1. The authority citation for part 29 continues to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 685, 690d, 
715i, 725, 3161; 30 U.S.C. 185; 31 U.S.C. 3711, 9701; 40 U.S.C. 319; 
43 U.S.C. 315a; 113 Stat. 1501A-140.

0
2. Add Sec.  29.3 to read as follows:


Sec.  29.3  Biological integrity, diversity, and environmental health.

    We will maintain and, where necessary and appropriate, restore and 
enhance the biological integrity, diversity, and environmental health 
of national wildlife refuges, both individually and as a network of 
intact, functioning, and resilient habitats for fish, wildlife, and 
plants, for the benefit of present and future generations of Americans.
    (a) Ensure biological integrity, diversity, and environmental 
health. To ensure biological integrity, diversity, and environmental 
health means to holistically conserve refuge ecosystems and all their 
components and processes across multiple spatial scales; promote 
natural processes; and address ecological transformation caused by 
climate change and other anthropogenic change to accomplish the mission 
of the National Wildlife Refuge System (Refuge System). We will seek to 
achieve the highest measure of biological integrity, diversity, and 
environmental health on refuges, which is represented by diverse, 
functioning, and self-sustaining ecosystems that are resilient to 
emerging or future conditions. We will use sound professional judgment, 
informed by the best available scientific information, to ensure that 
refuge management contributes to and does not diminish the biological 
integrity, diversity, and environmental health of refuges and the 
Refuge System for the benefit of fish and wildlife conservation.
    (b) Definitions. In addition to relevant definitions in Sec.  25.12 
of this subchapter C, the following definitions apply to this section:
    Adaptation means an adjustment in natural or human systems to a new 
or changing environment that uses beneficial opportunities or moderates 
negative effects.
    Anthropogenic change means environmental change that humans cause 
or influence, either directly or indirectly.
    Biological integrity means the capacity of an ecological system to 
support and maintain a full range of biotic composition, structure, 
function, and processes over time that exhibit diversity, connectivity, 
and resilience at genetic, organism, population, and community levels. 
We evaluate biological integrity by referencing historical conditions, 
recognizing that

[[Page 7351]]

climate change and other anthropogenic change are influencing refuge 
ecosystems.
    Climate change mitigation means measures taken to reduce the amount 
and speed of future climate change by reducing emissions of heat-
trapping gases or removing carbon dioxide from the atmosphere, 
including by improving ecosystem capacity for biological carbon 
sequestration.
    Connectivity means the degree to which landscapes, waterscapes, and 
seascapes allow species to move freely and ecological processes to 
function unimpeded.
    Conservation translocation means deliberately moving organisms from 
one site to another for release, with the intention of yielding a 
measurable conservation benefit at the levels of a population, species, 
or ecosystem.
    Diversity means the variety of life and its processes, including 
the richness and abundance of living organisms, the genetic differences 
among them, and communities and ecosystems in which they occur. We 
evaluate diversity by referencing historical conditions, recognizing 
that climate change and other anthropogenic change are influencing 
refuge ecosystems.
    Ecological transformation means the shift in an ecosystem, 
resulting in a new system that deviates from prior ecosystem structure 
and function or species composition.
    Ecosystem means systems comprised of biota (living organisms), the 
abiotic environment (e.g., air, light, soils, water), the interactions 
within and between them, and the physical space in which they operate.
    Environmental change means an alteration or disturbance of the 
environment caused by humans or natural processes that generates 
differences in the function or characteristics of an ecosystem.
    Environmental health means composition, structure, and functioning 
of soil, water, air, and other abiotic features, including the abiotic 
processes that shape the environment. We evaluate environmental health 
by referencing historical conditions, recognizing that climate change 
and other anthropogenic change are influencing refuge ecosystems.
    Historical conditions means composition, structure, and function of 
ecosystems that existed prior to ecological degradation caused by 
anthropogenic change, based on best available scientific and historical 
information.
    Invasive species means with respect to a particular ecosystem a 
non-native organism, including its seeds, eggs, spores, or other 
biological material capable of propagating that species, whose 
introduction causes or is likely to cause economic or environmental 
harm, or harm to human, animal, or plant health.
    Native means with respect to a particular ecosystem, a species 
that, other than as a result of an introduction, historically occurred 
or currently occurs in that ecosystem, including when such a species 
expands or shifts its range as a result of natural processes in 
response to environmental change.
    Natural processes mean interactions among plants, animals, and the 
environment that occur without substantial human influence.
    Predator control means actions or programs with the intent or 
potential to alter predator-prey population dynamics on a refuge by 
reducing a population of native predators through lethal or nonlethal 
methods, except for actions necessary to protect public health and 
safety and those enumerated under paragraph (d)(1) of this section.
    (c) Management directives for ensuring biological integrity, 
diversity, and environmental health. The following regulations serve as 
a framework for determining and implementing refuge management actions 
to meet our statutory obligations and policy goals:
    (1) Address climate change. Within the Refuge System, we will 
manage species and habitats affected by climate change and other 
anthropogenic change by using climate change mitigation and adaptation 
strategies when necessary to meet statutory requirements, fulfill 
refuge purposes, and ensure biological integrity, diversity, and 
environmental health.
    (2) Conserve and connect habitat. We allow for and defer to natural 
processes on habitats within the Refuge System and promote 
conservation, restoration, and connectivity to meet refuge habitat 
objectives and landscape planning goals. We will avoid and minimize 
habitat fragmentation to sustain biological integrity and diversity. 
When natural processes cannot meet habitat objectives or facilitate 
adaptation to anthropogenic change, we will use science-based 
management techniques or acquire lands when necessary to meet statutory 
requirements, fulfill refuge purposes, and ensure biological integrity, 
diversity, and environmental health.
    (3) Manage fish and wildlife populations. We conserve fish and 
wildlife populations within the Refuge System to meet refuge population 
objectives, sustain functioning ecosystems, and, where appropriate, 
restore or recover imperiled species. When habitat conditions and 
natural processes are insufficient to meet these goals or facilitate 
adaptation to anthropogenic change, we may pursue actions to supplement 
natural processes when necessary to meet statutory requirements, 
fulfill refuge purposes, and ensure biological integrity, diversity, 
and environmental health.
    (4) Uphold water rights. We will maintain and exercise our water 
rights on habitats within the Refuge System in accordance with local, 
State, and Federal laws. Where necessary, we will acquire, transfer, or 
lease water rights to meet statutory requirements, fulfill refuge 
purposes, and ensure biological integrity, diversity, and environmental 
health.
    (5) Promote and maintain healthy soil, water, and air. We promote 
and maintain soil health, water quality and quantity, and air quality 
as vital to sustaining and restoring habitats within the Refuge System 
through conservation and management to meet statutory requirements, 
fulfill refuge purposes, and ensure biological integrity, diversity, 
and environmental health. We will address threats to these abiotic 
components by pursuing appropriate actions, including when such threats 
to refuge resources arise outside refuge boundaries.
    (d) Management activities and uses with potential to ensure 
biological integrity, diversity, and environmental health. The 
regulations in this paragraph (d) provide guidance for certain 
management activities and uses that may support the maintenance of 
biological integrity, diversity, and environmental health. These 
activities and uses will be implemented within the Refuge System only 
as consistent with the management directives set forth in paragraph (c) 
of this section. Proposed activities and uses will be evaluated in 
compliance with the National Environmental Policy Act (42 U.S.C. 4321 
et seq.) and other legal requirements, as applicable.
    (1) Native predator control. We prohibit predator control unless it 
is determined necessary to meet statutory requirements, fulfill refuge 
purposes, and ensure biological integrity, diversity, and environmental 
health. We may implement lethal predator control only when all other 
feasible methods have been fully evaluated and such control is 
considered the only practical means of addressing a specific, 
significant conservation concern and ensuring biological integrity, 
diversity, and environmental health. We do not consider the following 
actions to be predator control:

[[Page 7352]]

    (i) Agency removal of native predator(s) solely to protect public 
health and safety;
    (ii) Use of barriers or nonlethal deterrents to protect the public, 
property, or vulnerable species, but that are not intended to reduce 
native predator populations;
    (iii) Compatible, refuge-approved taking of fish and wildlife for 
subsistence uses under Federal or State subsistence regulations that do 
not compromise maintaining biological integrity, diversity, and 
environmental health on the refuge;
    (iv) Compatible, refuge-approved recreational hunting and fishing 
opportunities that do not compromise maintaining biological integrity, 
diversity, and environmental health on the refuge; and
    (v) Removal of invasive species.
    (2) Conservation translocations. We may allow the introduction of a 
species outside its current range to avoid extinction or extirpation; 
restore a species; reestablish a specific ecological function lost to 
extinction or extirpation; or, in accordance with Sec.  17.81(a) of 
this chapter, when necessary to meet statutory requirements, fulfill 
refuge purposes, and ensure biological integrity, diversity, and 
environmental health.
    (3) Use of genetically engineered organisms. We prohibit the use of 
genetically engineered organisms unless their use is determined 
necessary to meet statutory requirements, fulfill refuge purposes, and 
ensure biological integrity, diversity, and environmental health.
    (4) Invasive species management. We pursue actions to control 
invasive species as part of an integrated pest management plan when 
necessary to meet statutory requirements, fulfill refuge purposes, and 
ensure biological integrity, diversity, and environmental health.
    (5) Pesticide use. We may allow the use of pesticides, following 
review and approval of their use as part of an integrated pest 
management plan, when necessary to meet statutory requirements, fulfill 
refuge purposes, and ensure biological integrity, diversity, and 
environmental health. Such use must not result in adverse effects on 
populations of nontarget species.
    (6) Agricultural uses. We prohibit the use of agricultural 
practices unless they are determined necessary to meet statutory 
requirements, fulfill refuge purposes, and ensure biological integrity, 
diversity, and environmental health, and where we cannot achieve refuge 
management objectives through natural processes.
    (7) Mosquito control. We prohibit control of native mosquitoes 
unless it is determined necessary to meet statutory requirements, 
fulfill refuge purposes, and ensure biological integrity, diversity, 
and environmental health or protect human health and safety. In these 
situations, chosen control methods must be the least injurious to fish, 
wildlife, and their habitats. We may coordinate with public health 
agencies or mosquito control organizations to implement the most 
effective control methods that minimize risk to refuge ecosystems and 
public health.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-02076 Filed 2-1-24; 8:45 am]
BILLING CODE 4333-15-P


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