[Federal Register Volume 65, Number 202 (Wednesday, October 18, 2000)]
[Rules and Regulations]
[Pages 62458-62483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26389]



[[Page 62457]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Parts 25, 26 and 29



Final Compatibility Regulations Pursuant to the National Wildlife 
Refuge System Improvement Act of 1997; Final Rule



Final Compatibility Policy Pursuant to the National Wildlife Refuge 
System Improvement Act of 1997; Notice

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / 
Rules and Regulations

[[Page 62458]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR parts 25, 26 and 29

[1018-AE98]


Final Compatibility Regulations Pursuant to the National Wildlife 
Refuge System Improvement Act of 1997

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule contains the final changes to Parts 25, 26 and 29 of 
Title 50 of the Code of Federal Regulations (CFR) that describe the 
process for determining whether or not a use of a national wildlife 
refuge (refuge) is a compatible use. These changes are necessary to 
implement the compatibility provisions of the National Wildlife Refuge 
System Improvement Act of 1997 (NWRSIA-1997) that amends the National 
Wildlife Refuge System Administration Act of 1966 (NWRSAA-1966). Also, 
published concurrently in the notice section of this Federal Register 
is our final compatibility policy describing in more detail the process 
for determining whether or not a use of a refuge is a compatible use.

DATES: This rule is effective November 17, 2000.

FOR FURTHER INFORMATION CONTACT: To obtain copies of this final rule or 
for additional information, contact: J. Kenneth Edwards, Refuge Program 
Specialist, Division of Refuges, U.S. Fish and Wildlife Service, 4401 
North Fairfax Drive, Room 670, Arlington, Virginia 22203 (Telephone 
703/358-1744, Fax 703/358-2248). You may also download a copy from: 
http://www.fws.gov/r9pdm/home/newfinalrule.html.

SUPPLEMENTARY INFORMATION: We published the Proposed Compatibility 
Regulations Pursuant to the National Wildlife Refuge System Improvement 
Act of 1997 in the Federal Register on September 9, 1999 (64 FR 49056). 
In addition, we published the Draft Compatibility Policy Pursuant to 
the National Wildlife Refuge System Improvement Act of 1997 in the 
Federal Register on September 9, 1999 (64 FR 49067). We invited the 
public to provide comments on the proposed rule and draft policy by 
November 8, 1999. During this 60-day comment period, we received 
several requests for an extension to the comment period. In order to 
ensure that the public had an adequate opportunity to review and 
comment on the proposed rule and draft policy, we extended the comment 
period until December 8, 1999 (64 FR 62163 and 62217 published November 
16, 1999). Therefore, the proposed rule and draft policy were available 
for public review and comment for 90 days. We revised the proposed rule 
and draft policy based on comments we received.

Background

    The NWRSIA-1997 amends and builds upon the NWRSAA-1966 providing an 
``Organic Act'' for the National Wildlife Refuge System. The NWRSIA-
1997 clearly establishes that wildlife conservation is the singular 
National Wildlife Refuge System mission, provides guidance to the 
Secretary of the Interior (Secretary) for management of the National 
Wildlife Refuge System, provides a mechanism for refuge planning, and 
gives refuge managers uniform direction and procedures for making 
decisions regarding wildlife conservation and uses of the National 
Wildlife Refuge System.
    The NWRSAA-1966 required the Secretary, before permitting uses, to 
ensure that those uses are compatible with the purposes of the refuge. 
We built this legal requirement into our policy and regulations. Since 
1966, the compatibility standard for refuge uses has helped us manage 
refuge lands sensibly and in keeping with the general goal of putting 
wildlife conservation first. The NWRSIA-1997 maintains the 
compatibility standard as provided in the NWRSAA-1966, provides 
significantly more detail regarding the compatibility standard and 
compatibility determination process, and requires that we promulgate 
the compatibility process in regulations. These regulations will help 
ensure that compatibility becomes a more effective conservation 
standard, is more consistently applied across the entire National 
Wildlife Refuge System, and is more understandable and open to 
involvement by the public.
    The House Report accompanying the NWRSIA-1997 states ``Currently, 
the law does not include a mission or a definition of a ``compatible 
use'' for the Refuge System. Refuge managers are responsible for 
determining, on a case-by-case basis, whether activities on refuges are 
compatible. Management of the Refuge System has been the focus of 
numerous studies in the last two decades, including two General 
Accounting Office reports, two reports of advisory boards to the 
Interior Department, a report prepared by the USFWS, and several 
hearings by the former Committee on Merchant Marine and Fisheries, 
which then had jurisdiction over the Refuge System. These reports and 
hearings highlighted that refuges have not always been managed as a 
national system because of the lack of an overall mission for the 
System. These reports concluded that the lack of an overall mission and 
management procedures had allowed numerous incompatible uses to be 
tolerated on wildlife refuges.'' The House Report further states ``H.R. 
1420 establishes that the conservation of fish, wildlife, plants and 
their habitats is the mission of the National Wildlife Refuge System 
and sets forth the policy and procedures through which the System and 
individual refuges are to be managed in order to fulfill that mission 
for the long-term benefit of the American public. H.R. 1420 requires 
that public use of a refuge may be allowed only where the use is 
compatible with the mission of System and purpose of the individual 
refuge, and sets forth a standard by which the Secretary shall 
determine whether such uses are compatible.'' Lastly, the House Report 
states ``The Committee expects that this legislation will diminish the 
likelihood of future litigation by providing a statutory compatibility 
standard, a process for making those determinations, a clear 
conservation mission for the System, and a planning process that will 
ensure greater public involvement in management decisions on refuges.''
    The NWRSIA-1997 includes a number of provisions that specifically 
address compatibility. The following is a summary of those provisions 
and how they apply to us.
    We will not initiate or permit a new use of a national wildlife 
refuge or expand, renew, or extend an existing use of a national 
wildlife refuge, unless we have determined that the use is a compatible 
use and that the use is not inconsistent with public safety. We may 
make compatibility determinations for a national wildlife refuge 
concurrently with the development of a Comprehensive Conservation Plan.
    On lands added to the National Wildlife Refuge System after March 
25, 1996, we will identify, prior to acquisition, withdrawal, transfer, 
reclassification, or donation of any such lands, existing compatible 
wildlife-dependent recreational public uses (if any) that we will 
permit to continue on an interim basis pending completion of a 
Comprehensive Conservation Plan for the national wildlife refuge.
    We may authorize wildlife-dependent recreational uses on a national 
wildlife refuge when we determine they are compatible uses and are not

[[Page 62459]]

inconsistent with public safety. We are not required to make any other 
determinations or findings to comply with the NWRSAA-1966 or the Refuge 
Recreation Act of 1962 (RRA-1962) for wildlife-dependent recreational 
uses to occur except for consideration of consistency with State laws 
and regulations.
    Compatibility determinations in existence on the date of enactment 
of the NWRSIA-1997, October 9, 1997, will remain in effect until and 
unless modified. In addition, we will make compatibility determinations 
prepared during the period between enactment of the NWRSIA-1997 and the 
effective date of these compatibility regulations under the existing 
compatibility process. After the effective date of these regulations, 
we will make compatibility determinations and re-evaluations of 
compatibility determinations under the compatibility process in these 
regulations.
    We will issue final regulations establishing the process for 
determining whether or not a use of a national wildlife refuge is a 
compatible use. These regulations will:
    1. Identify the refuge official responsible for making 
compatibility determinations;
    2. Require an estimate of the time-frame, location, manner, and 
purpose of each use;
    3. Require the identification of the effects of each use on 
national wildlife refuge resources and purposes of each national 
wildlife refuge;
    4. Require that compatibility determinations be made in writing;
    5. Provide for the expedited consideration of uses that will likely 
have no detrimental effect on the fulfillment of the affected national 
wildlife refuge's purposes or the National Wildlife Refuge System 
Mission;
    6. Provide for the elimination or modification of any use as 
expeditiously as practicable after we make a determination that the use 
is not a compatible use;
    7. Require, after an opportunity for public comment, reevaluation 
of each existing use, other than wildlife-dependent recreational uses, 
if conditions under which the use is permitted change significantly or 
if there is significant new information regarding the effects of the 
use, but not less frequently than once every 10 years, to ensure that 
the use remains a compatible use. In the case of any use authorized for 
a period longer than 10 years (such as an electric utility right-of-
way), the reevaluation will examine compliance with the terms and 
conditions of the authorization, not examine the authorization itself;
    8. Require, after an opportunity for public comment, reevaluation 
of each existing wildlife-dependent recreational use when conditions 
under which the use is permitted change significantly or if there is 
significant new information regarding the effects of the use, but not 
less frequently than in conjunction with each preparation or revision 
of a comprehensive conservation plan or at least every 15 years, 
whichever is earlier; and
    9. Provide an opportunity for public review and comment on each 
evaluation of a use, unless we have already provided an opportunity 
during the development or revision of a Comprehensive Conservation Plan 
for the national wildlife refuge or have already provided an 
opportunity during routine, periodic determinations of compatibility 
for wildlife-dependent recreational uses.

Purpose of This Final Rule

    The purpose of this final rule is to establish in regulation the 
process for determining compatibility of proposed refuge uses and 
procedures for documentation and periodic review of existing uses, and 
to ensure that we administer proposed and existing uses according to 
the compatibility provisions of the NWRSIA-1997. Published concurrently 
in this Federal Register is our final compatibility policy, Part 603 
Chapter 2 of the Fish and Wildlife Service Manual, which reflects this 
final rule and provides additional detail for each step in the 
compatibility determination process.

Summary of Comments Received

    We received 506 comment letters by mail, fax or email on our 
proposed rule and draft policy. They were from Federal, State and local 
governments, Members of U.S. Congress, Alaska Native Village 
Corporations, non-government organizations, research institutions and 
individuals.
    Some comments addressed specific elements in the proposed rule and 
specific elements in the draft policy, while many comments addressed an 
issue that was common to both the proposed rule and draft policy. Since 
the comments on the proposed rule and draft policy were so intertwined 
and oftentimes a comment on an issue was directly related to both the 
proposed rule and draft policy, we chose to address the comments 
collectively by issue rather than by proposed rule and draft policy 
separately. Since we analyzed the comments collectively on the proposed 
rule and draft policy, we are including a full summary of the comments 
and our responses in the SUPPLEMENTARY INFORMATION section of this 
final rule only and not in the SUPPLEMENTARY INFORMATION section of the 
notice of our final policy.
    We considered all of the information and recommendations for 
improvement included in the comments and made changes to the proposed 
rule and draft policy where appropriate. The number of issues addressed 
in each comment letter varied widely, ranging from one issue to several 
issues. We identified 28 groups of issues. Following are our responses 
to those groups of issues.

Issue 1: Jurisdiction

    We received one comment suggesting that compatibility applies to 
Coordination Areas and National Fish Hatcheries under the Refuge 
Recreation Act of 1962 (RRA-1962). The NWRSIA-1997 states ``* * * the 
Secretary shall not initiate or permit a new use of a refuge or expand, 
renew, or extend an existing use of a refuge, unless the Secretary has 
determined that the use is a compatible use * * *'' The House Report 
accompanying the NWRSIA-1997 states ``Coordination Areas have been well 
managed by the States under State laws and regulations, in many cases 
for decades. However, they are part of the Refuge System. They are 
specifically excluded from the definition of the term ``refuge'' in new 
Section 5(11) so as not to require every State management decision to 
be approved by the USFWS through the processes established by H.R. 
1420.'' The NWRSIA-1997 and its legislative history make it clear that 
although Coordination Areas are in the National Wildlife Refuge System, 
they are not subject to compatibility requirements as are other areas. 
National Fish Hatcheries are dealt with in 50 CFR Chapter 70.
    One commenter requested that we exempt only military overflights 
above a refuge from compatibility. The NWRSIA-1997 specifically exempts 
``overflights above a refuge'' from determinations of compatibility. 
The law does not differentiate between military and non-military 
overflights. This exemption from compatibility applies to all 
overflights. The Service does not have the authority to change this 
exemption provided in law.
    One commenter suggested adding a statement about communication 
between the Refuge Manager and personnel at local airports, pilot 
training schools, and private pilot groups regarding the Federal 
Aviation Administration's requested minimum altitudes over refuges as 
the most effective way to protect refuge resources

[[Page 62460]]

when the Refuge Manager deals with non-military overflights. We agree 
that this additional information may help refuge managers deal with 
non-military overflights and we incorporated it into the policy.
    We received comments concerning the effects this rule and policy 
might have on water rights. A commenter pointed out that the NWRSIA-
1997 did not affect any existing water right nor did it create any new 
reserved water right. The NWRSIA-1997 addressed a number of issues 
concerning the National Wildlife Refuge System; however, these 
regulations and policy implement only those sections of the NWRSIA-1997 
dealing with compatibility and they do not affect any existing water 
right nor do they create any new reserved water right.

Issue 2: Closed Until Open

    Several organizations wrote in support of the proposed language in 
50 CFR 25.21(a) which states clearly that except as otherwise provided, 
``all areas acquired or withdrawn for inclusion in the National 
Wildlife Refuge System are closed to public access until and unless we 
open the area for a use or uses in accordance with the NWRSAA-1966, the 
RRA-1962 and this subchapter C.'' This is not new and has been the 
legal standard for uses within the National Wildlife Refuge System for 
many years. Several other commenters pointed out, however, that there 
is a somewhat different standard for Alaska refuges. The compatibility 
standard is applicable to all refuges no matter where they are located. 
We are not changing the status of refuge uses in Alaska. See 50 CFR 36 
for regulations governing Alaska refuges.
    A few commenters also stated that all areas included in the 
National Wildlife Refuge System should be open for public wildlife-
dependent recreational uses. We agree that we should offer these 
opportunities following the guidelines established by the NWRSIA-1997, 
but all such uses are still subject to a compatibility review, and we 
must find them to be compatible before allowing them.

Issue 3: Definitions

    We received many comment letters that addressed 12 of the 23 
definitions we provided in the proposed rule and draft policy. Several 
commenters spoke generally about the definitions section and were 
either supportive of or opposed to our definitions. One commenter felt 
that the proposed definition changes should not take place at all, and 
that the definitions provided in the NWRSIA-1997 are both sufficient 
and better than what we provide in the regulations and policy. One 
commenter wanted to make sure that the definitions in the regulations 
follow the intent of the NWRSIA-1997. We believe that the definitions 
we provide in these regulations and policy are consistent with the 
NWRSAA-1966, as amended by the NWRSIA-1997. In addition, we believe 
that these definitions are necessary to consistently apply the 
compatibility regulations and policy throughout the National Wildlife 
Refuge System. Lastly, we added one additional definition, Regional 
Chief, that was not included in the proposed rule and draft policy. 
Following are discussions of the comments we received on specific 
definitions.
Compatibility Determination
    One commenter believes that the Refuge Manager should not have 
autonomy in making compatibility determinations. We address this 
concern in Issue 4: Decision Making Authority and Appeal Process.
Compatible Use
    We received several comments on the definition of compatible use. 
The major concern centered around our proposal to delegate the decision 
making authority for compatibility determinations from the Director 
through the Regional Director to the Refuge Manager. We address this 
concern in Issue 4: Decision Making Authority and Appeal Process. We 
received comments that addressed the inclusion of ``major'' in the 
definition of compatible use. Although some expressed support, others 
requested we delete the word, asserting that the NWRSIA-1997 does not 
use this qualifier in the definition. They pointed out that it defines 
a compatible use as one which ``does not materially interfere with or 
detract from the fulfillment of * * * the purposes of the refuge.'' We 
agree and have deleted the word ``major'' to conform to the provisions 
of the NWRSIA-1997. This will not result in changes to current 
practice, as we have not made such a distinction previously with regard 
to compatibility determinations.
Comprehensive Conservation Plan
    One commenter recommended adding ``maintain and, where necessary, 
restore the biological integrity, diversity, and environmental health 
of the Refuge System'' to the definition. We incorporated this 
recommended change with a slight modification. We are using the term 
``ecological integrity'' in lieu of the phrase ``biological integrity, 
diversity, and environmental health.'' Another commenter stated that 
``Preparation of the CCP should be carefully coordinated with the state 
fish and wildlife agency. To the maximum extent possible, issues 
dealing with hunting, trapping and fishing regulations should be 
consistent with state rules and regulations. In addition, issues 
dealing with management of fish and wildlife habitat should be 
consistent with state fish and wildlife conservation plans and 
policies.'' This recommended change is beyond the scope of these 
regulations and policy but this issue was addressed when we recently 
published our draft (64 FR 44368 published August 13, 1999) and final 
(65 FR 33892 published May 25, 2000) refuge planning policy in the 
Federal Register. We stated in our final refuge planning policy that 
``We will provide representatives from appropriate State and Tribal 
conservation agencies * * * the opportunity to serve on planning 
teams.'' We will provide a formal written request inviting States, 
Tribes, and other appropriate agencies to join the refuge planning 
effort at the beginning of the process. Adequate coordination with 
States, Tribes, other agencies, and the general public includes an 
invitation to participate, actual participation in our processes, 
regular and good communication, use of appropriate tools and materials 
to aid coordination, a sense of team work from all parties, and 
resulting successful partnerships beyond the planning phase. Our final 
refuge planning policy provides for all the processes and procedures 
for us to meet our responsibility for agency coordination. We encourage 
State and other agency involvement throughout the planning and 
management processes, including implementation and review. Furthermore, 
by being a member of the refuge planning team, State agencies will have 
a direct opportunity to assure that we accurately reflect or respond to 
their comments in the CCP document or in our analysis. While we 
recognize the need for input and feedback from others, we recognize the 
possibility of debate or alternative management direction, if guided 
solely by other influences. For this reason, while we encourage full 
input from the States and other entities in our plans, we retain 
management and decision-making authority for all units of the National 
Wildlife Refuge System, including approval of CCPs.
Conservation, and Management
    Two commenters supported the current definition. One commenter 
recommended referring to the NWRSIA-

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1997 rather than the NWRSAA-1966. The commenter feels that this 
definition flows from the NWRSIA-1997 rather than the NWRSAA-1966. This 
definition quotes the definition provided by the NWRSIA-1997 except 
that it clarifies that ``* * * this Act, * * *'', referred to in the 
definition in the law, is the NWRSAA-1966. One commenter recommended 
adding, ``including, but not limited to fishing, hunting and trapping'' 
after the term ``regulated taking.'' The definition includes 
``regulated taking'' as one of several examples of methods and 
procedures associated with modern scientific resource programs. The 
examples provided in the definition are protection, research, census, 
law enforcement, habitat management, propagation, live trapping and 
transplantation, and regulated taking. These are broad categories of 
examples and they could all be further expanded upon similar to the 
recommendation for ``regulated taking.'' However, we believe these 
examples are clear and it is not necessary to further expand upon any 
of these examples. One commenter recommends adding restoration to the 
definition. The definition includes the term ``restore and enhance'' 
and therefore we believe this recommendation is already incorporated. 
For these reasons we believe this definition is appropriate as written.
National Wildlife Refuge, and Refuge
    Three commenters, the International Association of Fish and 
Wildlife Agencies and the States of Colorado and West Virginia, stated 
that the definition should be consistent with the NWRSIA-1997, and its 
legislative history, and it should not extend our authority beyond our 
property interest. Whereas The Friends of Oxbow National Wildlife 
Refuge said ``Some areas, particularly former military bases, may be 
designed for transfer to the refuge system. The Service has a 
compelling interest in land and water use within such areas. Because 
this interest may be subtle or have longer-term implications, 
individuals or government agencies may overlook it.'' We understand and 
appreciate the rationale behind this comment, but as we understand the 
comment, this interpretation of interest refers to a likely future 
interest of the Service. The word ``interest'' in the definition refers 
to the extent of that interest, right, or privilege that we possess, 
not what we may eventually possess. We believe this definition is 
appropriate as is and consistent with the law.
National Wildlife Refuge System, and System
    In the process of addressing comments we decided that we need to 
clarify the definition of the National Wildlife Refuge System. 
Essentially, the Service has historically interpreted the NWRSAA-1966 
as including all areas administered by us for the protection and 
conservation of fish and wildlife. (See 50 CFR 25.12(a) National 
Wildlife Refuge System; 1999.) Because current regulations do not make 
it clear how those ``areas'' are identified, we are specifying that for 
those areas not specifically listed in the law or this regulation but 
that are nevertheless managed by the Service, the Director, only, will 
determine (in writing) if they are areas administered ``for the 
protection and conservation of fish and wildlife.'' If so, such areas 
are included in the System. We are also making clear that if we are 
directed to manage an area for the protection and conservation of fish 
and wildlife by a Presidential or Secretarial order, it will be managed 
as part of the System. Finally, the House Report accompanying H.R. 
1420, in discussing the fact that ``coordination areas'' managed by 
States are not refuges for compatibility determination purposes, they 
are still part of the System and we have, accordingly, added it to the 
specific list.
National Wildlife Refuge System Mission, and System Mission
    We received comments from The Wildlife Management Institute, The 
Wildlife Society and The Conservation Force on the definition of 
National Wildlife Refuge System mission, and System mission. These 
commenters agreed with the definition that we took directly from the 
NWRSIA-1997. However, they are concerned that we refer to the National 
Wildlife Refuge System mission as ``wildlife conservation is the 
singular'' National Wildlife Refuge System mission. On occasion, 
although not in these Federal Register documents, we also use the term 
``wildlife first'' to refer to the National Wildlife Refuge System 
mission. We agree that the National Wildlife Refuge System mission as 
stated in the NWRSIA-1997 is the National Wildlife Refuge System 
mission in its entirety, but we also believe our use of the terms 
``wildlife conservation'' and ``wildlife first'' when referring to the 
National Wildlife Refuge System mission are consistent with the NWRSIA-
1997 and supported by the House Report. The House Report states `` * * 
* the fundamental mission of our Refuge System is wildlife 
conservation: wildlife and wildlife conservation must come first.'' We 
did not include the term ``wildlife conservation is the singular'' in 
either the regulations or policy, only in the preamble of the 
regulations and policy.
Purpose(s) of the Refuge
    One commenter recommended deleting the term ``or derived from'' 
from the definition. The commenter is concerned that this language 
could lead to the creation of purposes not specified in the documents 
listed or not clearly intended by the documents listed. Two commenters 
recommended adding ``major'' before the word ``purposes'' in the title 
of this definition. One commenter recommended that we define ``primary 
purposes'' separately. The NWRSIA-1997 provides the definition of 
``purpose(s) of the refuge'' and one adjustment we made was to use 
``national wildlife refuge'' in place of ``refuge.'' The term ``or 
derived from'' is in the law, and we believe it should stay in this 
definition. The NWRSIA-1997 does not use the word ``major'' in this 
definition, it is not an operative term in our regulations and policy, 
and we believe it should not be added. Lastly, we added a statement to 
this definition that states for refuges that encompass Congressionally 
designated wilderness, the purposes of the Wilderness Act are 
additional purposes of the refuge. We are taking this opportunity to 
add to our regulations and policy the Wilderness Act requirement that 
the purposes of that Act are ``within and supplemental to the 
purposes'' of refuges.
Refuge Management Activity
    We received several comments on the definition of refuge management 
activity. One commenter recommended against including the definition in 
regulations. This commenter feels that a legislative power has been 
assumed, and that is reserved for Congress. We disagree with the 
comment regarding our authority and point out that we are authorized to 
adopt regulations necessary to carry out (implement) the NWRSAA-1966. 
Another commenter refers to the fact that refuge management activity 
does not include references to actions to facilitate priority public 
uses. This commenter feels that the term is too limiting, and could 
prevent hunting and fishing accommodations. We believe that actions to 
facilitate priority public uses are more appropriately included in the 
definition of refuge use rather than refuge management activity and 
therefore we did not include this change in the definition. A third 
commenter wishes that the definition would include various monitoring 
and

[[Page 62462]]

studies. We provide several examples of a refuge management activity, 
like monitoring and studies, in the policy at 2.10 A and therefore we 
did not include this change in the definition. One commenter recommends 
the definition specifically include State management activities. We 
address and incorporate this recommendation in the policy at 2.10 A and 
therefore we did not include this change in the definition. See Issue 
6: When is a compatibility determination required. Three commenters 
support the definition and agree that there is a difference between a 
refuge management activity and a refuge use. By defining these terms we 
are delineating for our refuge managers and the public what is or is 
not a use under the law.
Refuge Management Economic Activity
    We received several comments on the definition of refuge management 
economic activity. Three commenters recommended eliminating trapping as 
an example of a refuge management economic activity. One commenter 
recommended the definition not include guide, outfitter, and trapping 
activities. We believe it is appropriate to include trapping as an 
example of a refuge management economic activity because it is an 
activity that results in generation of a commodity which is or can be 
sold. One of these three commenters stated that trapping should not be 
included within this definition because it is a priority public use as 
part of hunting. The NWRSIA-1997 specifically lists six types of uses 
as wildlife-dependent recreational uses. The law and House Report 
discuss these six types of uses in numerous locations and they also 
describe them as the six priority general public uses of the National 
Wildlife Refuge System. Trapping is not one of the six priority public 
uses and is not a part of hunting. Three commenters recommended that 
the definition be strengthened by including the exclusion of oil and 
gas leasing, exploration, or production. We believe this recommendation 
goes beyond the scope of these regulations and policy. One commenter 
questions our authority to develop a definition in regulations that is 
not provided by Congress. As we stated above in the response regarding 
refuge management activity, we are authorized to adopt regulations 
necessary to carry out (implement) the NWRSAA-1966. Another commenter 
questioned why we distinguish between refuge management economic 
activity and refuge management activity. Two commenters feel that, 
within the definition, the actions that meet refuge management purposes 
should not be included in this category and the generation of income 
does not preclude these activities from contributing to refuge 
purposes. For the reasons discussed in the preamble of the proposed 
rule, we believe it is important to specifically define refuge 
management economic activity and we will require compatibility 
determinations for all refuge management economic activities. By doing 
so, we are not saying that generation of income precludes them from 
contributing to management, we are saying we will do compatibility 
determinations on them. We believe this definition is appropriate as is 
and necessary to help describe when a compatibility determination is 
required.
Refuge Use, and Use of a Refuge
    A few commenters recommended we clarify that State management 
activities on refuges are not refuge uses and, therefore, not subject 
to compatibility. We address this concern in Issue 16: State 
involvement.
Sound Professional Judgment
    Two commenters were against the definition including a reference to 
the National Wildlife Refuge System Administration Act of 1966. That 
aspect of the definition currently states ``* * * and adherence to the 
requirements of the National Wildlife Refuge System Administration Act 
of 1966 * * *'' The argument for removing this statement from the 
proposed definition is that issues of compliance must not be confused 
with the exercise of mostly biological judgment. One commenter not only 
agrees with the definition adhering to the National Wildlife Refuge 
System Administration Act of 1966, but recommends adding ``including 
the act's directive to maintain biological integrity, diversity, and 
environmental health'' to the definition. Another commenter recommends 
adding to the definition ``including consideration of biological 
integrity and diversity, as interpreted by the Agency policy, whether 
or not the proposed use is an appropriate use under agency policy.'' 
The law's definition of sound professional judgment specifically 
includes the term ``and adherence to the requirements of this Act.'' 
The Act's mandate to ``ensure that the biological integrity, diversity, 
and environmental health of the System are maintained * * *'' is a 
significant legal requirement and is foundational for all refuge 
management decisions. It is not limited to compatibility determinations 
for refuge uses. We did not add this statement to this definition but 
we recognized its value with regard to analyzing whether a use is 
compatible with the mission of the System. Because of that we added 
this concept in the discussion of ``materially interfere with or 
detract from'' in section 2.11(B) of our policy and ``anticipated 
impacts of the use'' in section 2.12(A)(8) of our policy. We are now 
using the term ``ecological integrity'' in lieu of the phrase 
``biological integrity, diversity, and environmental health.''
Wildlife-Dependent Recreational Use, and Wildlife-Dependent Recreation
    One commenter recommended we add ``trapping'' to this definition. 
The NWRSIA-1997 provides this definition and it does not include 
``trapping.'' The law specifically lists six types of uses as wildlife-
dependent recreational uses. The law and House Report discuss these six 
types of uses in numerous locations and they also describe them as the 
six priority general public uses of the National Wildlife Refuge 
System. Trapping is different from these priority public uses and the 
NWRSIA-1997 does not include it in this list of six. The Service does 
not have the authority to add trapping to this definition. We believe 
the definition is appropriate as is.

Issue 4: Decision Making Authority and Appeal Process

    We received a number of comments both in support of and opposition 
to the Refuge Manager's authority to make compatibility determinations. 
Associated with this issue, we also received a number of comments 
requesting an appeal process for compatibility determinations. These 
comments include 222 individual comments with a common shared theme 
``please modify the draft to ensure that the public has an opportunity 
to appeal decisions that permit potentially harmful activities to occur 
on refuges.''
    The NWRSIA-1997 required, among other things, that we designate the 
refuge official responsible for making compatibility determinations. We 
have designated the Refuge Manager to be that person, because the 
Refuge Manager is in the best position to make an informed decision 
based on the site-specific nature of compatibility. We believe the 
House Report supports our decision to delegate the compatibility 
determination authority to the Refuge Manager. The House Report 
frequently refers to the Refuge Manager when discussing various 
elements of compatibility. As an example, the House Report states ``In 
the exercise of sound professional judgment, the Refuge Manager 
considers * * *'' We believe that designating the Refuge Manager as

[[Page 62463]]

the refuge official responsible for making compatibility determinations 
is consistent with the intent of the law.
    We also recognize the need for National Wildlife Refuge System-wide 
consistency when considering compatibility. As a number of commenters 
pointed out, there is a real need for refuge managers to make decisions 
based on a clear and full understanding of national resource management 
programs and policies, and the role the individual refuge plays in the 
larger universe of wildlife conservation. We agree that this is a real 
concern. To accommodate this concern, in the rule and policy we built 
in the requirement for refuge managers to receive concurrence from 
their Regional Chief on all compatibility determinations. We will 
follow the same compatibility process throughout the National Wildlife 
Refuge System; however, we will base each compatibility determination 
on a refuge-specific (refuge purposes) analysis in addition to a 
National Wildlife Refuge System (System mission) analysis. We have 
decided to change the required regional office consultation to a 
required regional office concurrence on all compatibility 
determinations. We believe this change addresses many of the concerns 
provided in a number of comments and will help ensure that we look at 
both large-scale (System mission) and local-scale (refuge purposes) 
issues when preparing compatibility determinations.
    A number of commenters requested that we provide a procedure for 
administratively appealing compatibility determinations. Our proposed 
rule and draft policy did not include any changes to our existing 
appeal procedures. The draft policy simply referenced the locations of 
the procedures for appealing a permit denial. The NWRSIA-1997 and the 
House Report were silent on this particular issue. However, on a 
related issue, the NWRSIA-1997 requires that we provide an opportunity 
for public review and comment for all compatibility determinations. 
Although this is not an appeal process, it results in significantly 
more opportunity for the public to be involved in determinations of 
compatibility. This is a significant change from our existing 
compatibility policy and regulations, which do not require an 
opportunity for public review and comment. When making a compatibility 
determination, refuge managers will consider all information provided 
during the public review and comment period. In addition, anyone, at 
any time, may present relevant information on an existing, proposed, or 
denied use to the Refuge Manager, and this information may cause us to 
re-evaluate a use for compatibility. We recognize the fact that 
frequently we will have both support of and opposition to our decisions 
on compatibility. However, the law squarely placed the authority and 
responsibility for making compatibility determinations with the 
Service. We are providing no administrative mechanism to appeal a 
compatibility determination except for uses of ANCSA 22(g) lands as 
discussed in Issue 5: Alaska.

Issue 5: Alaska

    We received over 240 letters that addressed issues affecting the 
proposed rule or draft policy as they relate to Alaska refuges. These 
included 17 letters from: the State of Alaska; eight Native 
corporations; five national and one regional conservation organization; 
the Alaska Professional Hunter's Association; an environmental 
consulting business; and 225 letters from individuals.
    Comments from the 17 letters received from organizations included 
159 general comments, not specific to Alaska. We addressed these 
elsewhere in this document. The 17 letters also had 74 comments 
specific to the issue of how the compatibility policy and regulations 
affect Native lands conveyed from refuges under the provisions of the 
Alaska Native Claims Settlement Act (ANCSA), and how Section 22(g) of 
ANCSA applies. Additionally, we received 61 comments in these letters 
that addressed other Alaska-specific issues, generally associated with 
how the proposed actions relate to various provisions of the Alaska 
National Interest Lands Conservation Act (ANILCA). Two hundred twenty-
two personal letters all contained the same comment in support of the 
compatibility requirements being applied to ANCSA 22(g) lands, as well 
as four other comments not specifically related to Alaska. We are 
responding to the Alaska-related comments in two parts: ANCSA 22(g) 
Lands; and ANILCA.
ANCSA 22(g) Lands
    Congress enacted ANCSA to settle aboriginal land claims of Alaska's 
Natives by providing land and money in exchange for extinguishment of 
their land claims. The issue of which lands were available to Natives 
to select was a hotly debated topic. Ultimately some Federal lands, 
such as National Park lands, were taken out of the selection process. 
National wildlife refuge lands were made available by compromise 
language in the legislation that took the form of Section 22(g) of 
ANCSA. Section 22(g) of ANCSA reads: ``If a patent is issued to any 
Village Corporation for land in the National Wildlife Refuge System, 
the patent shall reserve to the United States the right of first 
refusal if the land is ever sold by the Village Corporation. 
Notwithstanding any other provision of this Act, every patent issued by 
the Secretary pursuant to this Act-which covers lands lying within the 
boundaries of a National Wildlife Refuge on the date of enactment of 
this Act [December 18, 1971], shall contain a provision that such lands 
remain subject to the laws and regulations governing use and 
development of such Refuge.''
    ANCSA had multiple purposes, primarily to settle the land claims 
issue, but also to provide Native Corporations opportunities for 
economic growth and prosperity. The balance that Congress struck 
specific to former refuge lands subject to Section 22(g) assured that 
by subjecting the lands to the laws and regulations of the refuge, 
future uses would not be allowed to occur if they materially impaired 
the values for which the refuge was originally established. 
Congressional intent is explained in a section by section analysis of 
ANCSA in Senate Report No. 92-405, at 34: ``[T]his subsection provides 
that every patent issued by the Secretary pursuant to this section 
which covers lands lying within the boundaries of a Federal wildlife 
refuge on the date of enactment of this Act, shall contain a provision 
that such lands shall remain subject to the laws and regulations 
governing use and development of refuges as long as the lands continue 
within its boundaries. The purpose of this provision and limitation is 
to insure that the activities which take place within the refuges are 
compatible with the purposes for which the refuge was established. This 
section also assures continuing review by the appropriate Federal 
agencies.''
    The compatibility review requirement, established formally in law 
with the passage of the NWRSAA-1966, has been a requirement for the use 
of 22(g) lands since the time that they were conveyed; however, as with 
uses on publicly owned refuge lands, such determinations were not 
required by law to follow any particular process. While the NWRSAA-1966 
required uses to be compatible with refuge purposes before they could 
be permitted, the NWRSIA-1997 (which amended the NWRSAA-1966) for the 
first time established a process for how compatibility determinations 
are to be made. The proposed regulations and draft policy will 
implement these legal requirements. We have noted comments

[[Page 62464]]

that expressed concern that the NWRSIA-1997 created new rules that 
should not be applied to 22(g) lands, and we have provided significant 
clarifications on how the compatibility review process will be applied 
to 22(g) lands, and we have included nothing from the NWRSIA-1997 
amendments that did not previously have legal foundation in the NWRSAA-
1966. Additionally, while the plain reading of ANCSA requires all 
refuge laws and regulations to apply to 22(g) lands, we have 
historically maintained that the compatibility requirement is the most 
basic legal requirement to protect refuge lands against uses that 
materially interfere with refuges achieving their purposes. We have 
never proposed to apply any other legal standard to uses of 22(g) 
lands.
    We received 222 personal letters that had a common theme of support 
for ``clarifying that the compatibility test applies to certain lands 
in Alaska governed by the Alaska Native Claims Settlement Act.'' 
Additionally, The Wilderness Society, National Wildlife Refuge 
Association, Arctic Connections, National Audubon Society, and 
Defenders of Wildlife voiced support for including ANCSA 22(g) lands in 
the compatibility policy and regulations. We did this in the proposed 
rule and draft policy, but we have substantially modified these 
sections in the final rule and final policy to provide clarification as 
requested by public comment.
    The National Audubon Society commented that, ``[C]ompatibility 
applies as a minimum standard under the plain language of Section 22(g) 
(see National Audubon Society v. Hodel, 1984, where the Court held that 
Section 22(g) of ANCSA retains this compatibility test for lands 
selected and conveyed to natives within wildlife refuges in Alaska.) It 
could be argued that 22(g) actually means much more than conducting 
compatibility determinations, since the law states that all laws and 
regulations governing use and development of such Refuge apply.'' 
Audubon went on to say, however, that the Service may wish to clarify 
procedural differences that may be desirable for conducting 
compatibility determinations on 22(g) private inholdings versus refuge 
lands. We agree, and included clarifications suggested by Audubon and 
several Native organizations in the final rule.
    The National Wildlife Refuge Association wrote: ``[T]he draft 
policy and regulations state that the compatibility requirements apply 
to the Alaska Native Claims Settlement Act Section 22(g) lands within 
Alaskan Refuges. While this is true, Section 22(g) requires that all 
Refuge rules and regulations be applied. This plain reading of the law 
should not be ignored. Section 22(g) was an extreme compromise in which 
Native land claims entitlements were allowed to come from existing 
National Wildlife Refuges, subject to this very significant covenant. 
Many argued at the time that settlement lands should not come from 
Refuges at all. National Park lands were placed off limits, but Refuge 
lands were offered in the legislation as a compromise. The Section 
22(g) restrictions were, however, included as significant protection to 
the long-term integrity of the Alaskan National Wildlife Refuges 
subjected to the conveyances. While many Native landowners may object 
to Refuge regulations being applied to a portion of their lands, the 
22(g) covenant must not be further eroded. Language in the final rule 
should clarify that all rules and regulations apply to the 22(g) lands, 
in addition to the compatibility requirement.'' Arctic Connections 
voiced a similar opinion in stating that the proposed regulatory 
standards for 22(g) lands should be ``at a minimum.'' We understand 
these concerns; however, after many years experience addressing this 
issue, we believe that we have met Congressional intent by applying the 
legal compatibility standard to 22(g) lands. The compatibility standard 
was the basic feature in refuge law (NWRSAA-1966) at the time ANCSA was 
enacted. We expect it to continue to provide adequate protection to 
refuges as adopted here.
    Middleton & Timme, P.C., on behalf of Koniag, Inc. took strong 
exception to the proposed rule and stated that they believe that the 
proposed regulations, specifically their application of the standards 
and procedures contained in the NWRSIA-1997 as they were proposed to 
apply to Native Corporations, fundamentally alter the condition under 
which the Native Corporations received their land entitlements. They 
continue by stating that, ``[C]ongress clearly did not intend the 1997, 
Act to have such an impact on Native Corporations' private property 
rights.''
    We have carefully reviewed these concerns and have clarified 
specifically how compatibility is to apply to 22(g) lands based on 
substantial comments from Koniag and others. In doing so, we have been 
careful to include only procedural elements for conducting 
compatibility determinations for uses on 22(g) lands that were 
acceptable under the original NWRSAA-1966 and as suggested by Native 
Corporations in this rulemaking process. These clarifications are 
substantial and, while recognizing that 22(g) lands are subject to 
compatibility review, acknowledge that 22(g) lands are also private 
lands that deserve special attention. We believe we have the authority 
to adopt regulations that address compatibility differently from those 
that deal with our own lands because we are, in effect, stating how we 
are going to implement and require compliance with a provision in a 
patent. We do this because the duty imposed by ANCSA is to include the 
provision in the patent. ANCSA itself does not impose the obligation of 
refuge laws and regulations. In other words, doing something which 
would not be allowed by the NWRSAA-1966 or regulations adopted 
thereunder is not a violation of the NWRSAA-1966, its regulations, or 
ANCSA. It is a violation of the provision in the patent. Our intent is 
to give meaning to the requirements of the provision and at the same 
time give meaning to the nature of the private lands selected per 
ANCSA.
    Comments by Koniag relative to this issue are paraphrased below, 
with responses given following each issue.
    Comment: 43 CFR 2650(4-6) requires that economic uses of 22(g) 
lands be permitted unless those uses materially impair the refuge.
    Response: We believe these regulations are consistent with this 
provision.
    Comment: The definition of compatible use is troubling in that it 
requires the use to be compatible not only with refuge purposes, but 
also with the mission of the National Wildlife Refuge System.
    Response: The clarifying changes affecting compatibility 
determinations for 22(g) lands now include only the requirement to be 
compatible with refuge purposes since the requirement related to the 
National Wildlife Refuge System mission is a product of the NWRSIA-1997 
that was not required at the time ANCSA was enacted. Again, while it 
may well be interpreted that the reference to refuge laws and 
regulations included in Section 22(g) meant all past, present, and 
future laws that Congress passed affecting national wildlife refuges, 
we have chosen to interpret the language as refuge laws and regulations 
that were in place at that time, since these were the conditions in 
which Native Corporations made their ANCSA selections. The sole 
exception to this is that refuge managers are to complete their 
compatibility determinations for 22(g) lands evaluating uses against 
both pre-ANILCA and post-ANILCA refuge purposes (if conflicts ever 
arise, the ANILCA purposes are to take

[[Page 62465]]

precedence). The reason for this is that we believe that Congress 
passed ANILCA, in its entirety, with knowledge of how it would impact 
ANCSA. From a practical standpoint, in support of Native interests, 
this also provides that we prepare compatibility determinations keeping 
subsistence in mind since subsistence was a Congressionally mandated 
purpose added to 15 of the 16 Alaska refuges that had not been included 
prior to the passage of ANILCA.
    Comment: The definition of compatible use is troubling because it 
is whatever the Refuge Manager determines it to be within his ``sound 
professional judgment.''
    Response: A refuge manager does not have unfettered discretion as 
the comment implies. The law defines compatible use to be one that 
``will not materially interfere with or detract from.'' A refuge 
manager must base the determination on this standard and the procedures 
adopted in these regulations and policy will require that decision to 
be verbally and publically analyzed. Because of the desire of several 
commenters regarding this issue, we have included an appeal process in 
the final regulation that will allow 22(g) landowners to have their 
concerns reviewed by the Alaska Regional Director should a refuge 
manager find a proposed use to be not compatible. Also, refuge managers 
must receive concurrence from their Regional Chief on all compatibility 
determinations.
    Comment: The 1997 Act gives the Refuge Manager the discretion to 
deny a use based on public safety even if he determines the use to be 
compatible.
    Response: We have clarified the compatibility regulations as they 
apply to 22(g) lands and refuge managers will be reviewing only for the 
compatibility of proposed uses. Public safety is only an issue to the 
22(g) landowner if they choose to allow public access to their lands. 
We do not have the authority to open 22(g) lands to public use and are 
not responsible for any public use that may occur, either by permission 
of the 22(g) landowner, or in trespass.
    Comment: We do not believe that the 1997 Act applies to 22(g) 
lands. The Service has apparently taken the view that there is no 
inconsistency in the regulations and that the proposed regulation will 
not alter the practice of the Service regarding 22(g) lands. If this is 
true, the proposed regulations are in dire need of clarification.
    Response: The NWRSIA-1997 amended the NWRSAA-1966. The NWRSAA-1966 
clearly did apply to 22(g) lands, including the compatibility 
provisions. This has been so stated in correspondence, legal reviews, 
and policy discussions for many years. The proposed rule only would 
have formalized the compatibility determination process: it did not 
create the requirement to conduct the determination. We have, however, 
agreed that clarification is warranted in the final rule and 22(g) 
lands will be treated separately than public refuge lands.
    Comment: There is a presumption of incompatibility in the event 
there is insufficient information to make a compatibility 
determination.
    Response: Refuge managers must make their compatibility 
determinations on 22(g) lands based on available information and sound 
professional judgment. It is the responsibility of the applicant to 
provide information adequate to support the proposed use.
    Comment: When a government-sponsored refuge use is competing with a 
22(g) use, this situation will involve an inherent conflict for the 
Refuge Manager. Allowing such interested parties to determine the fate 
of a corporation's private property rights would violate the most 
fundamental notions of due process.
    Response: Refuge managers have no authority to initiate or actually 
manage uses on 22(g) lands. They do, however, have responsibility for 
determining if such uses would have impacts that spill over onto 
adjacent refuge lands to the degree that they materially interfere with 
the refuge's ability to achieve its legally mandated purposes. This is 
the fundamental protection provided to the parent refuges from the 
effects of uses of 22(g) lands that Congress provided in Section 22(g) 
of ANCSA. Because of concerns expressed by comments; however, an avenue 
for appeal was added to the compatibility process for 22(g) lands so 
that 22(g) landowners have some recourse should a refuge manager 
determine a use to be not compatible.
    Other Native Corporations questioned the applicability of the 
NWRSIA-1997 to 22(g) lands and expressed the need for significant 
clarifications on how the compatibility process was to be applied 
differently to 22(g) lands. Many of the points of clarification 
followed the concerns expressed by Koniag and are not specifically 
reiterated. Calista Corporation stated that, ``[W]e believe that ANCSA 
Section 22(g) lands are a unique class of private lands within the 
National Wildlife Refuge System and should be treated by separate 
provision in the Compatibility Regulations.'' We agree. Calista, in 
addition to discussing the issues of determining compatibility by 
including the mission of the National Wildlife Refuge System, the need 
to stress that uses must be allowed unless they will materially 
interfere with refuge purposes, and concern over the ability to find a 
use not compatible if there is a lack of data, also raised two new 
issues. First, they believe that periodic reviews of the compatibility 
of uses of 22(g) land is unnecessary if these uses do not change 
substantially. Second, they state that village land use should not be 
subject to continual review and uncertainty regarding long-range plans 
and goals. We have clarified in the final rule that, for 22(g) land 
uses, the 10-or 15-year required review will not apply. We will prepare 
compatibility determinations only once for a proposed use on 22(g) 
lands and will revise them only if the use changes significantly, if 
substantially new information is made available that could affect the 
determination, or if requested by the landowner. Additionally, land use 
planning for 22(g) lands will not be subjected to refuge comprehensive 
conservation planning processes, and compatibility determinations 
affecting 22(g) lands will not be automatically reviewed when the 
refuge plans are updated.
    Cook Inlet Region, Inc. (CIRI) questioned the applicability of the 
NWRSIA-1997 but provided nine suggestions for improving the final rule 
specific to how the Service does compatibility reviews for uses of 
22(g) lands. We have already addressed six of these recommendations in 
response to other comments. CIRI commented that the use of compensatory 
mitigation should not be totally foreclosed on 22(g) lands. We believe 
that our policy of not allowing compensatory mitigation is appropriate 
and can be effectively administered on 22(g) lands. CIRI took exception 
to the definition of compatible use in its inclusion of the phrase 
``wildlife-dependent recreational use,'' stating that this is 
inappropriate for 22(g) lands, as well as for the rest of lands in 
Alaska. The concern is understood, but the definition comes from the 
NWRSIA-1997 and includes all other uses. Compatibility determinations 
are based on what the specific refuge purposes are. The concern should 
be lessened by recognizing that specific refuge purposes for Alaska 
refuges include (in 15 of the 16 refuges) a purpose for subsistence, 
meaning that in part, we will have to determine proposed uses to be 
compatible with the continuation of subsistence uses on those refuge 
lands. CIRI also commented that it should be made clear that 
compatibility determinations for uses of 22(g) lands

[[Page 62466]]

should only be required to the degree that the proposed activity has 
spill over effects on the adjacent refuge lands, and that uses that do 
not have this spill over effect should not be subject to a 
compatibility determination. We agree that compatibility determinations 
for 22(g) lands are not to be treated as though they are still refuge 
lands, rather, the proposed uses are to be evaluated against how they 
would impact refuge lands, not how they would impact the 22(g) lands. 
We do not agree; however, that where this ``spill over'' effect does 
not occur, compatibility determinations are not required. The 
determinations will still be required, but such uses will be found 
compatible. Finally, CIRI states that its oil, gas, and coal interests 
in Kenai National Wildlife Refuge are not to be governed by the 
proposed compatibility determinations. We agree in part. The subsurface 
property interest conveyed to CIRI for oil, gas, and coal was conveyed 
under the provisions of ANCSA and, therefore, such property interest is 
subject to Section 22(g). In this case, however, the ``Terms and 
Conditions'' settlement referenced by CIRI amounts to a property 
interest that guarantees CIRI certain rights to explore for and develop 
petroleum resources. While we retain some ability to regulate surface 
use and procedures, we cannot deny CIRI reasonable access to their 
subsurface estate.
    King Cove Corporation wrote in support of the conservation goals 
underlying the NWRSIA-1997 and the proposed regulations, but expressed 
concerns that the regulations be implemented in a manner that not 
impinge upon Native traditional uses and needs. Concern was expressed 
that inadequate instruction was provided to refuge managers on how to 
determine whether a use materially interfered with refuge purposes. 
Further, King Cove Corporation suggested that regulations provide that 
subsistence and other traditional uses made of the resource to foster 
and support Native culture and the health and welfare of Native 
peoples, be presumed to be compatible uses, absent a showing of 
extraordinary circumstances. Seven specific recommendations on 
improving the final rule were provided by the Corporation. These were 
similar to recommendations made by other Native Corporations and we 
addressed them in specific clarifying additions to the final rule. King 
Cove Corporation also recommended that analysis for compatibility 
include evaluation of the socioeconomic impacts on affected rural 
communities. The law does not allow this. Compatibility reviews can 
only look at effects of proposed uses relative to the legally 
established purposes of the refuge.
    Kaktovik Inupiat Corporation (KIC), and the Alaska Federation of 
Natives, Inc. (AFN), provided similar comments which addressed 
approximately 15 issues relative to compatibility requirements for 
22(g) lands. We addressed all but three of these issues in previous 
comments. These include recommendations relative to clarifying that 
22(g) lands are different than other refuge lands, re-evaluations of 
compatibility, discretionary denial authority, appeals, evaluating uses 
against the National Wildlife Refuge System mission, jurisdictional 
concerns, and subsistence as a priority use. KIC and AFN raised 
additional issues related to issuing of refuge permits, compensation 
for uses of 22(g) lands, and using Sections 1307 and 1308 of ANILCA to 
implement the regulations. The commenters stated their desire that 
proposed uses of 22(g) lands not be subject to the Service's permitting 
system. We accept this. The final rule states that we will require no 
additional permits for uses of 22(g) lands beyond the completion of a 
compatibility determination by the Refuge Manager that finds the use to 
be compatible with refuge purposes. Any conditions necessary to ensure 
a proposed use is compatible may be included in the compatibility 
determination. Comments also stated the desire that compensation be 
granted for uses of 22(g) lands in the same manner as any other private 
landowner is compensated for the use of their lands. We do not believe 
this to be an issue in that we do not allow public uses of 22(g) lands 
and only work on these lands, for management reasons, with the 
permission of the landowner. This relationship does not prevent us and 
22(g) landowners from entering into agreements on uses of the 22(g) 
lands. Such agreements could include payments, or non-monetary 
compensation for benefits we would obtain from the 22(g) landowner. The 
final comment recommending implementation of the regulations through 
Sections 1307 and 1308 of ANILCA is not acceptable to us. While we 
support these sections of law, the completion of refuge compatibility 
determinations is a responsibility imposed by law that can only be 
carried out by the Service. This is not an authority that we can or 
should delegate outside of the government. KIC and AFN also asked for 
clarity that if conflicts arise between the implementation of the 
NWRSIA-1997 and ANILCA that ANILCA take precedence. We address this 
concern in our discussion of issues pertaining to ANILCA.
    Doyon, Limited wrote that the final policy and regulations should 
recognize that most lands conveyed to Native Corporations pursuant to 
ANCSA are not subject to the requirements of Section 22(g) . We agree 
that only a small percentage of land conveyed under the provisions of 
ANCSA is subject to the 22(g) restrictions. The compatibility policy 
and regulations is not applicable to Native land that is not subject to 
Section 22(g) of ANCSA.
    In summary, we have not changed our position on the general 
applicability of the compatibility standard to ANCSA 22(g) lands, but 
we have made numerous changes to the final rule and policy based on 
public comment as indicated above. These changes allow us to conduct 
compatibility determinations substantially different on the 22(g) lands 
in recognition of the unique status of these lands and the fact that we 
are implementing a provision of a patent.
ANILCA
    The remaining comments on the proposed rule relative to Alaska 
address concerns, or needs for clarification, on issues pertaining to 
ANILCA.
    The State of Alaska, the Alaska Professional Hunters Association, 
The Wildlife Legislative Fund of America, and several Alaska Native 
organizations all expressed concerns that the legal guidance included 
in ANILCA on a number of issues was not well presented. It was 
suggested that the statement in the NWRSIA-1997 on resolving any 
conflicts that arise between implementation of the NWRSIA-1997 and 
ANILCA be included in regulations. In adopting these regulations we 
have been mindful of this provision and have written them to avoid any 
conflicts. In addition we are not amending any of the regulations 
applicable to the Alaska refuges contained in 50 CFR Part 36. 
Additional statements about specific issues such as cabins, snowmachine 
use, and access rights ensured under Title XI of ANILCA, etc., are not 
necessary, as they are provided for in those regulations.
    The State of Alaska also expressed concern over possible impacts to 
State fish and wildlife research, rehabilitation, and enhancement 
programs, elimination of the option in 50 CFR 25.44 for using 
mitigation measures to make a right-of-way or easement use of a refuge 
compatible, and over an inadequate appeal process for not compatible 
findings where no permit is required (such as for general uses like 
fishing or boating). These are

[[Page 62467]]

not Alaska-specific concerns and other State agencies included them in 
their comments as well. We addressed them collectively elsewhere in 
this document.
    The State of Alaska, The Wildlife Legislative Fund of America, and 
the Alaska Professional Hunters Association all commented that Alaska 
refuges are different from lower 48 refuges in that Alaska refuges are 
considered open until closed. While there are notable differences for 
many activities on Alaska refuges compared to the lower 48, all uses of 
Alaska refuges must also be found to be compatible, unless specifically 
exempted by law. The policy and regulations describing the 
compatibility determination process apply equally well to all refuges 
within the National Wildlife Refuge System. These commenters also 
recommended that commercial guiding and transporting be allowed as 
economic uses, and that trapping be allowed as well. We generally allow 
such uses on Alaska refuges, and there is no proposal to change this; 
however, from a technical aspect, we must find these uses, as well as 
all other uses, to be compatible with refuge purposes and the National 
Wildlife Refuge System mission to allow them. With respect to all of 
the above comments, we are not changing the status of refuge uses in 
Alaska. See 50 CFR 36 for regulations governing Alaska refuges.
    Doyon, Limited (Doyon) wrote that the proposed regulations fail to 
clarify that oil and gas recovery can be a compatible use within a 
refuge, and that activities undertaken pursuant to Section 1008 of 
ANILCA are subject to a different presumption of compatibility than 
other uses. All uses, including oil and gas related activities (and 
even including uses that Congress specifically determined to be 
``appropriate uses'' such as hunting and fishing) must, by law, be 
determined to be compatible to be allowed. The assumption made by Doyon 
that oil and gas related activities on non-North Slope refuge lands may 
be undertaken unless and until a determination is issued which finds 
the activities not to be compatible, is incorrect. Only after 
completing a compatibility determination, and having found the proposed 
use to be compatible, could we proceed in permitting uses pursuant to 
Section 1008 of ANILCA. Doyon also commented that the draft 
compatibility policy improperly expands the authority of the Service to 
impose ``additional procedural steps'' on Alaska refuges. The 
additional steps that Doyon is referencing are any of the procedures, 
or special considerations, that may be specifically required by ANILCA. 
No other additional steps are included for conducting compatibility 
determinations for uses of Alaska refuges, except those that may be 
mandated by ANILCA, or those previously discussed as they specifically 
apply to ANCSA 22(g) lands. Additionally, Doyon commented that the 
proposed regulations could presumptively prohibit new uses for an 
undetermined amount of time (while completing a final comprehensive 
conservation plan). We have previously completed these plans, as 
required by ANILCA, for all Alaska refuges. While we will undertake 
periodic revisions of these plans, compatibility determinations for 
proposed new uses will not have to wait for completion of the 
revisions.
    Finally, the Becharof Corporation wrote that unless subsistence use 
is included as a priority in the language of the policy and 
regulations, the mission statement will undermine the intent of ANILCA 
provisions by giving recreational hunting and fishing enhanced 
consideration. The NWRSIA-1997 did recognize hunting and fishing 
(including subsistence hunting and fishing) as priority public uses 
that we are to facilitate if we find them to be compatible with refuge 
purposes and the National Wildlife Refuge System mission. This did not 
elevate these uses to the status of refuge purposes for which 
subsistence use is for 15 of the 16 Alaska refuges. Compatibility 
determinations for these 15 refuges will, by law and regulation, be 
required to document that uses, including recreational hunting and 
fishing, do not materially interfere with the ability of the refuges to 
provide for traditional subsistence uses. This is strong protection for 
subsistence that the new policy and regulations does not lessen in any 
way.
    In light of the comments related to ANILCA and as discussed in our 
responses we have made changes to the final rule and policy.

Issue 6: When Is a Compatibility Determination Required

    We received many comment letters addressing various facets of when 
a compatibility determination is and is not required. The comments 
focused primarily on two aspects of the policy and regulations: not 
requiring compatibility determinations for refuge management 
activities, except for refuge management economic activities; and 
consider State wildlife management activities as refuge management 
activities, not refuge uses.
    Two hundred and twenty-two individual commenters with a common 
shared theme ``please modify the draft by requiring all of the Fish and 
Wildlife Service's management activities to pass the compatibility 
test,'' plus several additional commenters recommended that we require 
compatibility determinations for all refuge management activities. As a 
general matter, refuge management activities, defined as an ``activity 
conducted by the Service or a Service-authorized agent to fulfill one 
or more purposes of the national wildlife refuge, or the National 
Wildlife Refuge System mission'' have not historically been subject to 
compatibility determinations. We have not in the past and do not now 
consider refuge management activities to be refuge uses, rather refuge 
management activities are actions that we are obligated to or decide to 
take in order to help accomplish refuge purposes and/or the National 
Wildlife Refuge System mission. We have processes in place, including 
intra-agency section 7 consultation, refuge planning and associated 
NEPA compliance, to help ensure that we are conducting the appropriate 
refuge management activities. In addition, our refuge planning process 
provides an opportunity for public involvement in refuge management 
decisions. Compatibility is designed specifically for evaluating the 
anticipated impacts of refuge uses, not refuge management activities. 
As we discussed in the preamble of the proposed rule, we acknowledge 
the unique nature of one category of refuge management activities, that 
is refuge management economic activities, and for the reasons stated in 
that preamble we believe that compatibility determinations should be 
required for this category of refuge management activities. For all 
other refuge management activities, we are not saying that they are or 
are not compatible, rather we are simply saying that compatibility does 
not apply. We believe that this is consistent with the NWRSAA-1966.
    The International Association of Fish and Wildlife Agencies 
(International) and several States addressed the importance of 
distinguishing between ``refuge use'' and ``refuge management 
activity.'' Most of these comments requested that we clarify that State 
wildlife management activities on a refuge are not considered a refuge 
use and, therefore, not subject to a compatibility determination. The 
International stated that this is consistent with the NWRSIA-1997, and 
in addition asked that we make this clear in the policy. We agree in 
part. We added additional language in the policy

[[Page 62468]]

stating that, we do not require compatibility determinations for State 
wildlife management activities on a national wildlife refuge pursuant 
to a cooperative agreement between the State and the Fish and Wildlife 
Service where the Service has issued a written determination that such 
activities support fulfilling the refuge purposes or the System 
mission. We consider proposals for State activities on refuges that are 
not pursuant to a cooperative agreement a proposal for a refuge use and 
we will require a compatibility determination. By law, we cannot allow 
these activities by the State or any other entity without ensuring that 
they are compatible. For refuges where the State is proposing a number 
of wildlife management activities that are not pursuant to a 
cooperative agreement, we will be able to prepare a single 
compatibility determination for all the State wildlife management 
activities.
    A few commenters addressed our discussion of circumstances in 2.10 
B Other exceptions under which the requirements of compatibility may 
not be applicable. Commenters suggested we delete portions of this 
section, add additional examples and add more guidance. We did not 
accept the recommendation to delete portions of the section because 
they are necessary to help explain when we should not prepare 
compatibility determinations. We did not accept the recommendation to 
add additional examples or to provide more guidance because we did not 
believe that any clarifying language was necessary.
    A few commenters recommended that only military overflights, not 
all overflights, be exempted from compatibility determinations. The 
NWRSIA-1997 states ``The provisions of this Act relating to 
determinations of the compatibility of a use shall not apply to--(A) 
overflights above a refuge; * * *'' The law does not differentiate 
between military and non-military overflights. We believe the law 
exempts all overflights, military or otherwise, from compatibility 
determinations.
    We received several comments regarding the emergency provision that 
allows us to temporarily allow or initiate any refuge use without 
making a compatibility determination if it is necessary to protect the 
health and safety of the public or any fish or wildlife population. We 
had stated that a temporary action should not exceed 12 months. The 
general concern was that 12 months was too long to be considered a 
temporary action. We agree. We have reduced the time frame for 
temporary actions to not exceed 30 days.

Issue 7: Denying Uses

    We received several comments regarding denying a use without 
determining compatibility and not permitting a use found to be 
compatible. The majority of these commenters questioned our authority 
to take these two actions, i.e., deny a proposed use without making a 
compatibility determination and not allow a use found to be compatible.
    As a matter of law, the Secretary acting through the Service 
clearly has the authority to permit or not permit any use on a national 
wildlife refuge, the only legal requirement imposed by the NWRSAA-1966 
being that those uses permitted must be shown to be compatible. The 
converse is not true. If an application for a use is denied, it need 
not be shown that the use is not compatible. In addition, when we 
determine that a use is compatible, we are not required to allow the 
use. This authority is not new. We believe this is consistent with the 
NWRSAA-1966 and is clearly stated in the NWRSIA-1997 House Report, 
``Pursuant to Section 4(d) of the NWRSAA, a determination of 
compatibility must be made by the USFWS prior to permitting an activity 
to occur, but a determination of compatibility does not require that a 
particular use be permitted. This legislation does not change that 
provision.''
    Several of the commenters also addressed the vagueness of the term 
``is inconsistent'' that we use in our discussion of denying a proposed 
use without determining compatibility. We agree that this term is 
somewhat vague. We replaced the term ``is inconsistent'' with the word 
``conflicts.''

Issue 8: Sound Professional Judgment

    We received comments from several non-government organizations 
regarding our interpretation and discussion of the term ``sound 
professional judgment.'' In addition, we received comments from several 
non-government organizations and one State agency regarding our 
definition of this term. We addressed the comments regarding the 
definition earlier in this document under Issue 3: Definitions. 
Following is a discussion of the comments specific to our 
interpretation and discussion of sound professional judgment.
    One commenter suggests that a closer working relationship between 
the State fish and wildlife agency and the Refuge Manager would improve 
the application of sound professional judgment. Another commenter 
agrees with closer working relationships, and suggests that the Refuge 
Manager consult a much wider range of professional advice. We agree. 
When a refuge manager is exercising sound professional judgment, the 
Refuge Manager will use available information, which could include 
consulting with others both inside and outside the Service. We added 
language to that effect in the general discussion of sound professional 
judgment.
    Several commenters said that refuge managers should not consider 
lack of adequate budgets when considering priority public uses. We do 
not agree. We believe that we must, by law, consider lack of adequate 
budgets for all uses, including priority public uses. The NWRSIA-1997 
states that ``no other determinations or findings are required to be 
made by the refuge official under this Act or the Refuge Recreation Act 
for wildlife-dependent recreation to occur.'' However, regarding this 
provision in law, the House Report states, ``In the future, no such 
determination is required to be made for wildlife-dependent 
recreational uses. However, this does not mean that limited financial 
and personnel resources must be directed toward maintenance or 
enhancement of these activities. As noted previously, one element of 
``sound professional judgment'' which must be exercised in making a 
compatibility determination is the availability of resources. This 
facet of sound professional judgment is intended to allow the manager 
to consider whether adequate financial, personnel, law enforcement, and 
infrastructure exists or can be provided in some manner by the USFWS or 
its partners to properly manage a public use.'' Regarding the 
definition of sound professional judgment, the House Report states, 
``Implicit within this definition is that financial resources, 
personnel and infrastructure be available to manage permitted 
activities.'' Therefore, we believe the available resources element of 
sound professional judgment is required by law to apply to all uses and 
must be included in these regulations and policy. Lastly, the NWRSIA-
1997 goes on to say that if available resources are the only things 
preventing a priority public use from being compatible, the Refuge 
Manager must make reasonable efforts to secure resources that are 
lacking. We address this additional requirement for priority public 
uses in sections 2.11 A.(2) and 2.12 A.(7) of the policy.
    The Wilderness Society, National Audubon Society and National 
Wildlife Refuge Association suggested we add additional language to the 
discussion of sound professional judgment regarding maintenance of 
biological integrity,

[[Page 62469]]

diversity, and environmental health. Several additional commenters 
stated, although in a variety of ways, that we consider biological 
integrity, diversity, and environmental health when making 
compatibility determinations and we prohibit uses that are detrimental 
to any aspect of the ecological health of the refuge. We also received 
222 individual letters with a common shared theme stating, ``Please 
also require that activities do not degrade the biological integrity, 
diversity, and environmental health of the refuges.'' Since these 
comments are so closely related we are collectively addressing them as 
follows. The NWRSIA-1997 states that we must maintain the biological 
integrity, diversity, and environmental health of the National Wildlife 
Refuge System. This is an important and fundamental requirement of the 
law and establishes a baseline for all actions (including refuge 
management activities and public uses) taken on refuges. As we 
discussed earlier in Issue 3: Definitions we did not add this statement 
to this definition but we recognized its value with regard to analyzing 
whether a use is compatible with the mission of the System. Because of 
that we added this concept in the discussion of ``materially interfere 
with or detract from'' in section 2.11(B) of our policy and 
``anticipated impacts of the use'' in section 2.12(A)(8) of our policy. 
We are now using the term ``ecological integrity'' in lieu of the 
phrase ``biological integrity, diversity, and environmental health.'' 
One commenter also suggested adding ``not negatively impacting 
conservation goals.'' We address this comment, in part, in Issue 17: 
Steps to prepare a compatibility determination where we state that we 
added to the policy that refuge managers should list all conservation 
objectives in approved refuge management plans that reasonably might be 
affected by the proposed use.

Issue 9: Materially Interfere With or Detract From

    We received several comments addressing our discussion of 
``materially interfere with or detract from.'' Comments ranged from 
``the intent of this section, as well as the scope of activities to 
which it applies, is unclear'' to ``we find this straightforward and 
particularly endorse.'' Other comments stressed the importance of 
considering direct and indirect impacts of uses plus the cumulative 
impacts of all activities on the refuge and specifically endorsed other 
statements in our discussion of ``materially interfere with or detract 
from.'' One commenter stated that the words ``lingering or continued 
adverse'' confuse more than clarify and should be deleted while another 
commenter stated that the words ``tangible'' and ``lingering and 
continued adverse'' seem to lower the compatibility standard. As we 
discuss in Issue 6: Sound professional judgment and Issue 17: Steps to 
prepare a compatibility determination we made changes that, in part, 
address some of the comments raised here. In addition, we revised 
portions of our discussion of ``materially interfere with or detract 
from'' to clarify this section. We stress that whether some impact is 
``tangible'' or ``lingering and continued adverse'' is not necessarily 
the overriding concern. The primary aspect is how does the use and any 
impacts from it affect our ability to fulfill the purposes of the 
refuge and the mission of the System.

Issue 10: Right-of-Ways and Replacement of Lost Habitat Values or Other 
Compensation

    We received many comment letters that addressed issues related to 
right-of-ways. These included several general comments, many comments 
specific to the issue of compensatory mitigation, and the transcript 
from a public meeting held in Aberdeen, South Dakota that addressed how 
the proposed regulations and draft policy may affect the Highway 12 
project in their state. Twenty-three citizens gave testimony at this 
October 23, 1999 meeting and each raised concerns about impacts the 
proposed changes might cause.
    The comments we received regarding right-of-ways primarily 
addressed our proposal to amend current regulations to no longer permit 
the use of compensatory mitigation in order to make a proposed use 
compatible. This proposed change was supported by 222 letters from 
individuals that had a shared common theme regarding this and four 
additional issues.
    The Federal Highway Administration stated ``The proposal in the 
rule and policy to disallow mitigation for uses of refuge land that 
have not been determined to be compatible may conflict with the laws 
for Federal land transfer for acquisition of right of way by the FHWA 
as codified in 23 U.S.C. Section 107(d), Acquisition of Rights-of-Way-
Interstate System, and Section 317, Appropriation for Highway Purposes 
of Lands or in Lands Owned by the United States. These laws establish 
the process through which the FHWA acquires land on the behalf of State 
transportation departments from other Federal Agencies for highway 
improvements and construction.'' Section 107(d) states ``(d) Whenever 
rights-of-way, including control of access, on the Interstate System 
are required over lands or interests in lands owned by the United 
States, the Secretary may make such arrangements with the agency having 
jurisdiction over such lands as may be necessary to give the State or 
other person constructing the projects on such lands adequate rights-
of-way and control of access thereto from adjoining lands, and any such 
agency is directed to cooperate with the Secretary in this 
connection.'' Section 317(a) and (b) state ``(a) If the Secretary 
determines that any part of the lands or interests in lands owned by 
the United States is reasonably necessary for the right-of-way of any 
highway, or as a source of materials for the construction or 
maintenance of any such highway adjacent to such lands or interests in 
lands, the Secretary shall file with the Secretary of the Department 
supervising the administration of such lands or interests in lands a 
map showing the portion of such lands or interests in lands which it is 
desired to appropriate. (b) If within a period of four months after 
such filing, the Secretary of such Department shall not have certified 
to the Secretary that the proposed appropriation of such land or 
material is contrary to the public interest or inconsistent with the 
purposes for which such land or materials have been reserved, or shall 
have agreed to the appropriation and transfer under conditions which he 
deems necessary for the adequate protection and utilization of the 
reserve, then such land and materials may be appropriated and 
transferred to the State highway department, or its nominee, for such 
purposes and subject to the conditions so specified.'' It has been the 
practice of the Service to comply with 23 U.S.C. 107(d) and 317(a) and 
(b). This rule will change the process by which we prepare 
compatibility determinations for highway right-of-ways but it will not 
interfere with our ability to continue to comply with 23 U.S.C. 107(d) 
and 317(a) and (b). By way of clarification, we are not precluding from 
the compatibility process all aspects of what is commonly thought of as 
mitigation. Certainly, any right-of-way applicant, including for roads 
or highways, could modify a proposed use through avoidance, 
minimization, and other steps (see discussion of mitigation below.) 
What we are limiting here is the use of that aspect that is referred to 
as compensatory mitigation. We still will cooperate by working with the 
Federal Highway Administration and States for redesign, etc. Another 
method that we can use to cooperate with the Federal Highway 
Administration, and, where appropriate, accommodate their request,

[[Page 62470]]

is through exchanges for fee title or less than fee title interests in 
land as provided in our policy at Part 342 Chapter 5 Non-Purchase 
Acquisitions. The criteria for exchanges are, (1) that the exchange be 
of benefit to the United States, and (2) that the value of the lands or 
interests in lands be approximately equal or that values may be 
equalized by the payment of cash by the grantor or by the United 
States. Exchanges are a valuable method to acquire land or interests in 
land for Service programs and may be used to accommodate Federal 
Highway Administration projects. This rule does not change our policy 
on land or interests in land exchanges.
    We proposed to add, in paragraph (b) of 50 CFR 26.41, language that 
states we will not allow making proposed refuge uses compatible through 
replacement of lost habitat values or other compensation (sometimes 
referred to as ``mitigation'' or as a component of mitigation). We also 
proposed to delete the current paragraph (d) of 50 CFR 25.44, which 
authorizes us to require ``mitigation measures'' within an easement 
area to ``make the proposed use compatible'' and to delete current 
paragraph (c) of 50 CFR 29.21-7, as it applies to the issuance of 
right-of-way permits, which authorizes us to require ``mitigation 
measures'' on-or off-site to ``make the proposed use compatible.''
    We want to clarify what is ``mitigation'' and what portion of 
``mitigation'' we do not allow. The President's Council on 
Environmental Quality defined the term ``mitigation'' in the National 
Environmental Policy Act regulations to include: ``(a) Avoiding the 
impact altogether by not taking a certain action or parts of an action; 
(b) minimizing impacts by limiting the degree or magnitude of the 
action and its implementation; (c) rectifying the impact by repairing, 
rehabilitating, or restoring the affected environment; (d) reducing or 
eliminating the impact over time by preservation and maintenance 
operations during the life of the action; and (e) compensating for the 
impact by replacing or providing substitute resources or 
environments.'' [40 CFR Part 1508.20(a-e)]. The Service supports this 
definition of mitigation and considers the specific elements to 
represent the desirable sequence of steps in the mitigation planning 
process. When we state in these regulations and policy that we will not 
allow compensatory mitigation to make a proposed refuge use compatible 
we are referring only to element (e) of mitigation as defined by the 
President's Council on Environmental Quality.
    Comments were generally either strongly in favor of retaining the 
existing provisions to allow the continued use of compensatory 
mitigation, or strongly in favor of our proposal to eliminate those 
provisions. Support for retaining the existing provisions was largely 
dominated by three concerns: first, that the proposed changes were too 
inflexible and could result in many projects that may be considered to 
be in the general best interest of the American public being delayed, 
deemed too costly, or prohibited; second, that Congress did not intend 
for such a far reaching impact in enacting the NWRSIA-1997; and third, 
that such a policy shift would ultimately be bad for wildlife 
conservation by discouraging State, local government, and private 
landowner partners, especially in the establishment of new conservation 
easement areas. Support for the proposed changes generally voiced our 
view that a use is either compatible or not, and the fact that some 
``incompatible'' impact might be compensated for by doing something to 
make up for the impacts cannot make a use compatible for purposes of 
the NWRSAA-1966. Some pointed out that it be made clear that 
compatibility ``is not for sale'' on national wildlife refuges.
    We have spent considerable time reviewing this issue and, based on 
substantial public comment, believe that some changes in the final 
policy and regulations are warranted. We understand the Congressional 
intent regarding existing right-of-ways, which is stated in the House 
Report, ``There are numerous existing rights-of-way on National 
Wildlife Refuge System lands for roads, oil and gas pipelines, 
electrical transmission, communication facilities, and other utilities. 
The Committee does not intend for this Act to in any way change, 
restrict, or eliminate these existing rights-of-way, whether 
established by easement or permit, or to grant the USFWS any authority 
that does not already exist to do so.''
    We have, therefore, amended and clarified our final policy and 
regulations to reflect the Committee's intent not to change, restrict, 
or eliminate existing right-of-ways. The policy and regulations also 
address the unique circumstance presented by existing public highway 
right-of-ways. In order to continue to serve the purpose for which a 
right-of-way was issued, public highways must, in certain 
circumstances, be expanded or realigned. We amended our policy and 
regulations to accommodate the reasonable need for the minor expansion 
or realignment of existing public highway right-of-ways. We note that 
while the Congressional intent is that the Act itself not change, 
restrict, or eliminate existing right-of-ways, it is also clear that 
Congress did not alter our authority to do so if warranted on 
compatibility or other grounds.

Issue 11: Refuge-Specific Analysis

    We received several comment letters that generally supported our 
refuge-specific analysis language in the policy. One commenter 
recommended adding specific language from our proposed rule preamble to 
our policy discussion on refuge-specific analysis. They stated this 
would give added clear and appropriate policy direction to refuge 
managers. We agree. Therefore, we modified this section to state that 
we do not require refuge managers to independently generate data to 
make determinations, but rather to work with available information. The 
Refuge Manager may work at their discretion with the proponent(s) of 
the use or other interested parties to gather additional information 
before making the determination.

Issue 12: Relationship to Management Plans

    We received several comment letters that addressed the relationship 
between compatibility determinations and refuge planning. These 
comments supported completing compatibility determinations as part of 
the comprehensive conservation planning process. They stated that this 
was one way to better address the impacts of the use and reduce 
unnecessary or duplicative paperwork. We agree that there are many 
advantages to preparing compatibility determinations concurrently with 
refuge planning documents, and in the policy we state that we will 
usually complete compatibility determinations as part of a planning 
process. In addition, our final refuge planning policy published in the 
Federal Register (65 FR 33892 published May 25, 2000) states we will, 
``Complete new compatibility determinations or re-evaluate existing 
compatibility determinations as part of the CCP process for all 
individual uses, specific use programs, or groups of related uses 
associated with the proposed action. Prepared concurrently with the 
CCP, incorporate the draft compatibility determinations into the draft 
CCP as an appendix. We require public review and comment for all 
compatibility determinations. We can achieve this concurrently through

[[Page 62471]]

public review and comment of the draft CCP and NEPA document.''
    Three State fish and wildlife agencies and the International 
Association of Fish and Wildlife Agencies, suggested adding to the rule 
Congressional intent that compatibility determinations be made, to the 
extent practicable, as part of the comprehensive conservation plan. We 
agree that this should be stated in the rule as well as in the policy. 
Therefore, we added language to the regulations that states we will 
usually complete compatibility determinations as part of the 
comprehensive conservation plan or step-down management plan process 
for individual uses, specific use programs, or groups of related uses 
described in the plan.

Issue 13: Priority Uses

    We received several comments from non-government organizations and 
State agencies regarding priority uses, or special considerations when 
managing conflict between uses. The NWRSIA-1997 established that 
compatible wildlife-dependent recreational uses, defined as refuge uses 
involving hunting, fishing, wildlife observation and photography, and 
environmental education and interpretation, are to be recognized as the 
priority general public uses of the National Wildlife Refuge System 
through which the American public can develop an appreciation for fish 
and wildlife. The law further requires that opportunities are to be 
provided for compatible wildlife-dependent recreational uses within the 
National Wildlife Refuge System, that these uses receive priority 
consideration over other general public uses in planning and management 
within the National Wildlife Refuge System, and for increased 
opportunities for families to engage in such activities within the 
National Wildlife Refuge System. The law did not establish a hierarchy 
among the priority public uses, or establish any clear process for 
determining such a hierarchy. The law was clear, however, that we must 
determine the priority public uses to be compatible if we are to allow 
them, and if determined compatible, we should facilitate them whenever 
possible.
    Some commenters expressed concern that the proposed policy would 
provide guidance to refuge managers that would allow them to find a 
priority public use not compatible based solely on insufficient 
information on the effects of the use. They suggested that 
Congressional intent directed that priority public uses should be 
determined compatible unless strong evidence demonstrated otherwise. We 
agree that Congressional intent provided that compatible priority 
public uses should be facilitated whenever possible, but it is clear 
that no different standard is to be applied to the actual determination 
of compatibility. Nonetheless, we acknowledge that there is rarely 
complete information available on the effects of a proposed use, and 
that the proposed terminology, ``If available information to the Refuge 
Manager is insufficient to document that a proposed use is compatible, 
then the Refuge Manager would be unable to make an affirmative finding 
of compatibility and we must not authorize or permit the use'' could be 
improved. Therefore, we have added to the final policy a discussion of 
how we deal with priority public uses when sufficient information is 
not available. We believe that this change clarifies this issue, 
provides adequate priority to the priority public uses, and addresses 
the comments.
    Several commenters also expressed concern with the Justification 
step in policy and regulations, suggesting we eliminate the language, 
amend it to exempt priority public uses or amend it to ensure that only 
those uses which are determined to be compatible will materially 
enhance the refuge purposes and System mission. The language, as part 
of a justification for the compatibility finding, would require a 
description of how the proposed use is reasonably expected to affect 
fulfilling the refuge's purpose(s) and the National Wildlife Refuge 
System mission. Most of these comments correctly pointed out that the 
compatibility standard measures how the proposed use would materially 
interfere with or detract from the fulfillment of the refuge's purposes 
or the National Wildlife Refuge System mission. Therefore, we amended 
this step in regulations and policy to clarify this point.
    A number of commenters asked for clarification on how we would 
determine which use, among priority public uses, would receive the 
higher priority should conflict between them arise.
    Suggestions were also made by some on how such priority decisions 
should be made, such as the Humane Society of the United States 
suggesting that consumptive wildlife uses (such as hunting and fishing) 
be held to a higher standard than non-consumptive wildlife uses (such 
as wildlife viewing and photography), while the New Mexico Department 
of Game and Fish requested that we give priority to waterfowl hunting 
(specifically to manage increasing populations of white geese) over the 
optimization of waterfowl viewing opportunities. The NWRSIA-1997 did 
not establish a hierarchy among the priority public uses, and we are 
not proposing to do so as a matter of general policy. We will continue 
to try and facilitate all compatible priority public uses to the degree 
that we are able to do so. If conflicts arise, and restrictions or the 
elimination of uses are necessary, we will give priority to uses that 
most positively contribute to the achievement of refuge purposes, the 
National Wildlife Refuge System mission, and specific refuge management 
goals.
    Two scientific organizations (American Institute of Biological 
Sciences and The Ornithological Council) suggested that scientific 
research should be presumed to be compatible unless otherwise 
determined that it is not, and such activities should be considered in 
the ``top tier of uses.'' While our experience has been that scientific 
research and other scientific activities are most often compatible, the 
NWRSAA-1966 as amended by the NWRSIA-1997 does not give us any 
authority to treat research differently than other uses. Nonetheless, 
we encourage many types of natural resource-related research and 
believe that we can cover many such proposed uses under our expedited 
compatibility review process.
    Many commenters voiced support for the priority public uses, either 
as a category, or individually. Some expressed concern that more was 
not stated in the draft documents that illustrated the preference that 
we must give to wildlife-dependent recreational uses under the 
provisions of the NWRSIA-1997. The State of Utah voiced support for our 
position on priority public uses but was concerned that regulations 
(specific to hunting) were not uniformly used on all refuges in their 
area. We understand this concern, and support consistency in general, 
but maintain that different regulations, or permit stipulations, are 
often necessary to ensure compatibility at different refuges because of 
different wildlife management issues, refuge purposes, size of the 
refuge, or other refuge-specific differences.
    The Wilderness Society suggested that we prohibit non-priority 
recreational activities, and commercial uses of refuges unless they can 
be demonstrated to contribute to the achievement of the National 
Wildlife Refuge System mission and the refuge purposes, and that they 
are compatible. While we believe such a policy could ultimately benefit 
refuges, the suggestion goes beyond both what the NWRSIA-1997 mandates 
and the general scope of the policy and regulations establishing the

[[Page 62472]]

process we will use to determine compatibility of uses.
    Several comments suggested that hunting or fishing guides or 
commercial outfitters, and/or trapping, should be considered priority 
public uses under the provisions of the NWRSIA-1997. We do not agree. 
The definition for the priority public uses is clearly provided in the 
law, and although these are related uses, they are not specifically 
included in the legal definitions. The most obvious effect beyond these 
uses not receiving automatic preference over other refuge uses, is the 
requirement to review compatibility determinations for these uses every 
10 years rather than every 15 years. Our interpretation of priority 
public use only includes the use itself and not uses that are related 
but separate from the actual use. Another example is that a permitted 
use that rents boats (that could be used in support of fishing, 
birdwatching, or waterfowl hunting) would not be considered a priority 
public use itself in our policy and regulations. We consider it a 
commercial use subject to the 10 year compatibility review requirement.

Issue 14: Re-evaluation of Uses

    We received several comment letters regarding how and when we re-
evaluate uses for compatibility. The majority of the commenters 
recommended we clarify our re-evaluation language. A few of the 
commenters recommended specific changes.
    One commenter recommended reducing the 10- and 15-year maximum re-
evaluation period to 5-years for recreational uses. Most of the re-
evaluation language in the policy and regulations is taken directly 
from the NWRSIA-1997. These 10- and 15-year maximum time frames coupled 
with the other criteria for re-evaluations in our policy and 
regulations are consistent with the NWRSIA-1997, which provided clear 
direction on when we will re-evaluate uses for compatibility. We 
believe that the re-evaluation criteria are sufficient to keep pace 
with changes in resources and relevant information. The 10- and 15-year 
re-evaluation criteria is the maximum period of time we can go without 
a re-evaluation whereas the other criteria may trigger a re-evaluation 
much earlier. In addition, we note that a refuge manager may re-
evaluate a use at any time and specifically state this in our policy.
    One commenter recommended we re-evaluate a priority public use 
whenever it is proposed, even if it has been previously denied. We 
consider requests for refuge uses whenever we receive them. For 
priority public uses we aggressively look for ways to allow them. The 
House Report states we should facilitate priority public uses when they 
are determined to be compatible and also states that, ``there will be 
occasions when, based on sound professional judgment, the manager will 
determine that such uses will be found to be incompatible and cannot be 
authorized.'' During fiscal year 1999 we welcomed over 33 million 
priority public use visits to the National Wildlife Refuge System. 
However, this does not mean that we should allow all priority public 
uses on all refuges. We agree that priority public uses is a category 
of uses that we must pay special attention to as directed by the 
NWRSIA-1997. We believe that we adequately address this special 
category of uses throughout the policy and do not need to make changes 
to the re-evaluation section. See Issue 13: Priority uses for more 
discussion on this topic.
    Four commenters, including Edison Electric Institute, 
Transcontinental Gas Pipe Line Company, Southern Natural Gas Company 
and El Paso Energy Corporation, specifically addressed our re-
evaluation procedures for right-of-ways. Generally, these commenters 
asked that we further clarify how re-evaluations will be conducted for 
right-of-ways. We are addressing existing right-of-ways very 
differently from other types of refuge uses. We have amended and 
clarified the final policy and regulations to reflect the Congressional 
intent as stated in the House Report that this law not in and of itself 
change, restrict, or eliminate existing right-of-ways. We discuss this 
issue earlier in this document under Issue 10: Right-of-ways and 
replacement of lost habitat values or other compensation. The 
commenters also asked us to clarify certain elements of a compatibility 
determination for re-authorizing an existing right-of-way. They 
recommended we consider the right-of-way re-authorization based on 
existing conditions rather than pre-right-of-way conditions. We agree 
and have amended the regulations and policy to clarify this point.
    One commenter acknowledged that the NWRSIA-1997 directs that re-
evaluations of uses specifically authorized for a period of longer than 
10 years (such as right-of-ways), will examine compliance with the 
terms and conditions of the authorization, not the authorization 
itself. They went on to reference a colloquy held between Senator John 
Chafee, Chairman of the Environment and Public Works Committee, and 
Senator Bob Graham on September 10, 1997 during passage of the NWRSIA-
1997 on the Senate floor. In that exchange, Senator Graham states that: 
``[I]n the case of unforseen changes in circumstances, it may 
occasionally be necessary to adjust a use to ensure that it remains 
compatible. My understanding is that utility companies have been 
willing and able to make minor adjustments to their facilities to 
ensure that they remain compatible. Mr. Chairman, am I correct to 
understand that this amendment will still allow the flexibility to make 
such adjustments to facilities that have been authorized for more than 
10 years in order to ensure that they remain compatible?'' At which 
point, Senator Chafee responds: ``That is correct.'' (Catalogued in 
Congressional Record of September 11, 1997, Page: S9238). Based on this 
conversation the commenter recommended we modify our regulations and 
policy to allow the Service to seek modifications to the terms and 
conditions of permits with a duration exceeding 10 years, if necessary 
to ensure that the use remains compatible. We agree and have amended 
the regulations and policy to clarify this point.
    One commenter was concerned that we might go beyond our authority 
when we examine compliance with the terms and conditions of a right-of-
way authorization and when we make a new compatibility determination 
prior to re-authorizing a right-of-way. We have always limited these 
actions to the extent of our authority to regulate and control the 
right-of-way. These regulations and policy do not change that 
authority.
    Several commenters suggested that we clarify certain aspects of the 
re-evaluation language. In particular, we were asked to clarify whether 
a compatibility re-evaluation is a full blown compatibility 
determination or something else. We have clarified this in both the 
policy and regulations. When we re-evaluate a use for compatibility, we 
will prepare a new compatibility determination following the procedure 
outlined in policy. For some uses, there may be no significant change 
in the conditions under which the use is permitted or no significant 
new information regarding the effects of the use; however, whenever a 
re-evaluation is triggered we will take a fresh look at the use and 
complete a new compatibility determination.
    Two commenters suggested we clarify how we determine significant 
change in the conditions under which the use is permitted or 
significant new information regarding the effects of a use. They also 
asked that we clarify how new information may be made available to the 
Refuge Manager. We added language to the policy to clarify this

[[Page 62473]]

point. The Refuge Manager will determine whether change in the 
conditions under which the use is permitted or new information 
regarding the effects of the use is significant or not. The Refuge 
Manager will make this decision by considering whether these new 
conditions or new information could reasonably be expected to change 
the outcome of the compatibility determination. Any person at any time 
may provide information regarding changes in conditions and new 
information to the Refuge Manager. However, the Refuge Manager 
maintains full authority to determine if this information is or is not 
sufficient to trigger a re-evaluation.

Issue 15: Public Review and Comment

    We received many comment letters regarding the public review and 
comment portion of the compatibility determination process. Generally, 
these comments supported this section and requested changes to the 
following areas: length of the public review and comment period; 
mechanism by which we seek public review and comment; involvement of 
State fish and wildlife agencies; level of detail; and types of uses we 
consider under the expedited compatibility determination process. A few 
of the commenters complimented our commitment to ``actively seeking to 
identify individuals and organizations that reasonably might be 
affected by, or interested in, a refuge use.''
    As we discussed in Issue 12: Relationship to management plans we 
will usually complete compatibility determinations as part of a 
planning process and we will achieve public review and comment on our 
compatibility determinations concurrently through public review and 
comment of the draft plans and NEPA documents. Our refuge planning 
policy provides a detailed discussion of how we will provide for 
substantial public involvement throughout the planning process from 
start to finish. We did not repeat those details in this policy. For 
compatibility determinations prepared separately from a plan we believe 
that we have adequately described the public review and comment process 
and that additional detail is not needed.
    Several of the commenters were particularly concerned about the 
Refuge Manager's ability to reduce the comment period for uses other 
than minor, incidental, or one-time uses that will likely have no 
detrimental effect on refuge purposes or the System mission. In 
response to those comments, we deleted the following: ``This period may 
be reduced by the Refuge Manager when there is not sufficient time to 
provide the full 14-days.''
    A few of the commenters suggested we consider specific categories 
of uses such as priority general public uses and electric utility 
right-of-ways, and minimal impact activities under the expedited 
compatibility determination process. We agree, in part, with the 
comments to include minimal impact activities under the expedited 
process and we adequately addressed this in the draft policy and 
further clarification is not needed. We did not accept the 
recommendations to include specific categories of uses, such as 
priority general public uses and electric utility right-of-ways, under 
the expedited process.
    We addressed the concerns of the States to be more involved in 
compatibility determinations in Issue 16: State Involvement.

Issue 16: State Involvement

    Thirteen States and one non-government organization addressed a 
State's need to be involved in compatibility determinations. Comments 
ranged from offering to assist refuge managers with compatibility 
determinations to requiring State consultation on all compatibility 
determinations. Although the range of the comments varied considerably, 
the topic that most frequently came up was the desire of the States to 
be involved in the compatibility determination process. The majority of 
these comments also made reference to the importance of completing 
compatibility determinations during the comprehensive conservation 
planning process.
    The International Association of Fish and Wildlife Agencies, 
representing all 50 State fish and wildlife agencies, stated that we 
should reiterate Congressional intent in the NWRSIA-1997 that 
``compatibility determinations be made, to the extent practicable, as 
part of the CCP.'' We agree. We addressed this concern under Issue 12: 
Relationship to management plans. We believe the relationship between 
compatibility and comprehensive conservation planning accommodates the 
desire of the States to be involved in the compatibility determination 
process. The States will be invited to participate in the comprehensive 
conservation planning process. We will complete most compatibility 
determinations concurrently with a comprehensive conservation plan. 
Therefore, the States will be involved in compatibility determinations 
early in the process. Because of the close relationship between 
compatibility and comprehensive conservation planning, and the States' 
active role on the planning team, we do not need to add an additional 
step for State involvement in these regulations and policy.

Issue 17: Steps To Prepare a Compatibility Determination

    We received many comments that addressed issues on the steps we 
propose to use in completing compatibility determinations. We have 
addressed comments on steps related to the determination of available 
resources (see Issue 8: Sound professional judgment), opportunity for 
public review and comment (see Issue 15: Public review and comment), 
preparing the justification for the finding (see Issue 13: Priority 
uses), and consultation by the Refuge Manager with their Regional 
Office Supervisor (see Issue 4: Decision making authority and appeal 
process), elsewhere in this document. Other comments related to the 
procedural steps we propose to take include: anticipated impacts of the 
use, description of the use, stipulations, finding of whether a use is 
compatible or not, and general comments about the proposed 
compatibility determination process.
    Several commenters suggested that further guidance is needed in the 
policy to ensure that the assessment of anticipated impacts fully 
captures the extent to which a use detracts from refuge purposes or the 
National Wildlife Refuge System mission. The National Audubon Society 
suggested that the compatibility determination should list all relevant 
refuge conservation objectives. We agree, that where specific 
management objectives have been adopted through the public planning 
process, and those objectives clearly support the refuge's ability to 
fulfill its purposes, steps in the compatibility review process should 
acknowledge and evaluate how the proposed use would impact those 
specific refuge management objectives. Therefore, we have amended the 
policy to include this recommendation.
    An individual wrote that refuge managers should have to take into 
account the impacts to wildlife in not continuing a use. We agree that 
this is inherent in the review process, that both positive and negative 
impacts to refuge resources must be evaluated in determining the net 
effect on the ability of the refuge to achieve its purposes. We did not 
believe that any clarifying language was necessary, however, on this 
issue. The Wildlife Legislative Fund of America stated that it was 
critical that the policy not invite or encourage refuge managers to 
speculate about possible or

[[Page 62474]]

potential problems that could arise, and that they are opposed to 
management decisions based on conjecture and speculation. We agree in 
part, and have addressed this potential concern in the discussion of 
sound professional judgment. We have also made changes to the language 
affecting the decision process when insufficient information is 
available to make a decision regarding a priority public use. See Issue 
13: Priority uses for more discussion on this topic. We did not change 
the policy relative to the recommendations received from the Animal 
Protection Institute that would add steps to the anticipated impacts 
section to address specifically what effects the use might have on 
threatened and endangered species or on ``non-target'' wildlife because 
we believe that the step already required analysis of impacts of the 
use to all species of wildlife. The National Wildlife Refuge 
Association requested we amend the section to include language that 
directs refuge managers to review all associated activities to the use 
(such as mode of transportation or special equipment that may be 
required for the intended use). We agree with the concept and believe 
that we have addressed this issue in the policy at section 2.9 When is 
a compatibility determination required?. In addition, we added language 
to section 2.12 What information do we include in a compatibility 
determination? to further clarify this point.
    A suggestion to add steps for the description of use that would 
describe what time frame the use would be conducted, and what is the 
purpose of the use, were not incorporated in that we believe we already 
included these issues in the step, without adding the clarifying 
language. Similarly, we did not amend the policy, as suggested, to 
identify whether the use ``and all associated uses are'' compatible or 
not compatible because we believe that the additional language was not 
necessary to clarify that we are talking about the use in its entirety 
(including supporting uses and facilities) as described in detail 
earlier in the process. However, we added language referring to 
associated facilities, structures and improvements to the steps where 
we identify and describe the use. We had already stated in the policy 
that whenever practicable, the Refuge Manager, should concurrently 
consider related uses or uses that are likely to have similar effects 
in order to facilitate analysis of cumulative effects and to provide 
opportunity for effective public review and comment. The Refuge Manager 
will determine whether to consider a use individually, a specific use 
program, or in conjunction with a group of related uses.
    The Edison Electric Institute, representing approximately 200 
electric utility members, and other commenters, asked that we clarify 
the difference between the term ``stipulations'' under the proposed 
steps for making a compatibility determination, and the term 
``mitigation.'' Stipulations generally establish the controlling 
parameters of a use. For example: no right-of-way mowing during the 
period March 15 to July 15; restore disturbed area with native 
vegetation; within the areas marked by public use signs; by no more 
than 45 people at one time; at speeds not to exceed 15 mph. While these 
might ``mitigate'' the effects of a use they are more correctly stated 
as ``stipulations'' for the use to be compatible. Mitigation often 
gives rise to the thought that one could compensate for impacts rather 
than avoid. In addition, we have added the term ``sufficient'' to the 
policy as requested by the National Wildlife Refuge Association.
    The Safari Club International expressed concern with the proposed 
changes to 50 CFR 26.41 which requires information ``whether the use is 
compatible or not compatible * * * '' They felt that this was not 
adequate and should also require the inclusion of an explanation of the 
reasoning used in reaching that determination. We agree that this is 
not enough alone; however, steps in the compatibility determination 
process also require the inclusion of the anticipated impacts of the 
use on the refuge's purposes and the National Wildlife Refuge System 
mission in regulations and a justification for the determination in 
policy. We believe that this will provide for adequate rationale for 
the decision being made.
    The National Audubon Society requested that a step be added to 
determine if a use is an ``appropriate use'' and if it was determined 
not to be, that the use be denied without determining compatibility. We 
have listed seven reasons that we would deny a use without determining 
compatibility. While we did not define any of these steps as a 
determination of appropriateness, all seven steps serve that function, 
in part. We do, however, agree that we should give additional scrutiny 
to the question of what are appropriate uses of national wildlife 
refuges but that this issue goes beyond the question of compatibility 
covered in these regulations and policy. We will likely address this 
issue in future regulations and policy. The National Audubon Society 
also suggested changes that would have us add language addressing 
indirect impacts of the proposed use on the time, space, or funding 
available to implement conservation objectives, and would encourage 
refuge managers to work with any interested party to gather 
information, and should make an effort to balance data gathering among 
proponents and opponents of a proposed use. We agree that indirect 
impacts of a proposed use may include taking away or diverting 
resources from an activity that would support fulfilling the System 
mission or refuge purposes and therefore would be a factor in 
determining whether the proposed use is compatible or not. We added a 
statement to this effect although we did not use the exact wording 
provided by the National Audubon Society. Their recommendation to work 
with all interested parties is encouraged, and we believe that adequate 
guidance on this issue is included in the rule; however, we do not 
support the view that information must somehow be balanced among 
perceived opponents or proponents of a use. We will seek all pertinent 
information from all interested parties.
    We have included a step to the compatibility determination process 
that would identify whether the use is a priority public use or not 
based upon a recommendation from the Wildlife Legislative Fund of 
America. Because of the clear focus on this issue in the NWRSIA-1997, 
we felt it was warranted to highlight such uses in our compatibility 
determination process.

Issue 18: Existing Uses Determined To Be Not Compatible

    We received several comments regarding what we do with existing 
uses that are not compatible. The comments ranged from opposed to the 
provision to need for clarification to strongly supportive of the 
provision. The NWRSIA-1997 directs us to ``provide for the elimination 
or modification of any use as expeditiously as practicable after a 
determination is made that the use is not a compatible use'' in the 
regulations. In the proposed regulations and draft policy we stated 
that existing uses determined to be not compatible would be terminated 
or modified to make them compatible as expeditiously as practicable. In 
the final regulations and policy, we maintained what we had already 
proposed and added a statement that says, except with written 
authorization from the Director, the process for termination or 
modification will not exceed 6 months from the date that the 
compatibility determination is signed.

[[Page 62475]]

Issue 19: Pre-acquisition Compatibility Determinations

    Several commenters addressed the type of uses for which we should 
prepare pre-acquisition compatibility determinations and one commenter 
addressed who should make the compatibility determination.
    Three commenters recommended that we prepare pre-acquisition 
compatibility determinations for all existing uses. One commenter 
supported the language in our draft policy and regulations, and said we 
should clarify that existing wildlife-dependent recreational public 
uses do not include private uses. One commenter recommended clarifying 
what public means. With regard to pre-acquisition compatibility 
determinations, the NWRSIA-1997 states ``on lands added to the System 
after March 25, 1996, the Secretary shall identify, prior to 
acquisition, withdrawal, transfer, reclassification, or donation of any 
such lands, existing compatible wildlife-dependent recreational uses * 
* *'' It is clear that this provision of the law does not apply to uses 
other than wildlife-dependent recreational uses. In addition, the law 
specifically refers to ``compatible wildlife-dependent recreational 
uses'' as the ``priority general public uses of the System.'' In the 
context of pre-acquisition compatibility determinations, we believe 
that Congress was referring to existing wildlife-dependent recreational 
public uses rather than existing wildlife-dependent recreational 
private uses. In order to make this distinction in policy and 
regulations, we used the word ``public'' in our discussion of pre-
acquisition compatibility determinations. We do not believe that we 
need further clarification in the policy and regulations.
    One commenter recommended that the planning team make pre-
acquisition compatibility determinations. As discussed elsewhere in 
this document under Issue 4: Decision making authority and appeal 
process, we believe that the Refuge Manager is the most appropriate and 
qualified person to make all compatibility determinations, including 
pre-acquisition compatibility determinations.

Issue 20: NEPA

    We received several comment letters regarding the National 
Environmental Policy Act (NEPA) and how it relates to compatibility. 
Generally, the comments addressed the need to follow the NEPA process 
when completing compatibility determinations.
    NEPA requires us to examine the environmental impact of our 
actions, incorporate environmental information, and utilize public 
participation, as appropriate, in the planning and implementation of 
our actions. NEPA compliance is required whenever we take an action. It 
is the action that triggers NEPA. A compatibility determination is not 
an action under NEPA, rather it is only one of many factors that we 
take into account whenever we consider taking an action, i.e., allowing 
a refuge use. Comprehensive conservation plans and step-down management 
plans include our decisions about allowing or not allowing refuge uses. 
These plans will have associated NEPA compliance documentation. As we 
discussed under Issue 12: Relationship to management plans, we will 
complete many compatibility determinations concurrently with a planning 
process. Compatibility determinations are an integral part of our 
decision about refuge uses; however, it is important to note that 
compatibility is only one of many factors that we take into account 
when we consider allowing or not allowing a refuge use. We revised the 
language to clarify the relationship between NEPA and compatibility.

Issue 21: Policy and Regulations

    Two commenters discussed the need to provide more detail in the 
regulations. They were surprised that we decided to prepare separate 
regulations and policy documents to implement this provision of the 
law. They were concerned that a number of the important provisions in 
the policy document are missing entirely from the regulations. The 
NWRSIA-1997 requires that we issue final regulations establishing the 
compatibility determination process. We have accomplished that 
directive with these final regulations. In addition to regulations in 
the Code of Federal Regulations (CFR), we chose to concurrently develop 
more detailed guidance for preparing compatibility determinations in 
the Fish and Wildlife Service Manual. The compatibility chapter in the 
Service Manual contains a mix of rules that we must follow as well as 
general guidance. Publishing compatibility rules in the Service Manual 
does not diminish the requirements that they contain. Refuge Managers 
will be bound by those requirements that are mandatory whether or not 
we publish them in the CFR. In addition, because the compatibility 
chapter of the policy manual contains rules, we will have to use the 
same notice and comment procedure utilized to adopt this chapter if we 
decide to amend or change it. Publishing in the Service Manual rather 
than the CFR does not affect the strength of any rules that are in the 
chapter nor does it exempt us from procedural requirements.

Issue 22: Wilderness

    One commenter was pleased that we discussed the importance of 
preserving wilderness and recommended we add ``Unless specifically 
authorized under the Act establishing the wilderness area, the 
construction of roads or permanent structures, and the use of motorized 
equipment or mechanized vehicles is prohibited within wilderness areas 
unless necessary to preserve the area's wilderness characteristics.'' 
We state in the policy that for uses proposed for wilderness areas we 
must first analyze whether the use can be allowed under the terms of 
the Wilderness Act before we determine if the use is compatible. We 
also state that if the use can be allowed under the Wilderness Act we 
must then determine if the use is compatible. This compatibility 
determination will include the purposes of the Wilderness Act, which 
makes such purposes supplemental to those of the refuge. We believe the 
recommended additional language goes beyond the question of 
compatibility covered in these regulations and policy and will be more 
appropriate in our future wilderness policy.

Issue 23: Economic Uses

    We received a few comments addressing economic uses of refuges. 
Comments ranged from encouraging economic uses to defining certain 
economic uses as allowed uses to not allowing economic uses unless they 
contribute towards achieving refuge purposes and the System mission and 
do not degrade the biological integrity, diversity and environmental 
health of the refuge. We already said in the proposed rule that we may 
allow economic uses when they may contribute to the ``administration'' 
of the refuge. ``Administration'' of the refuge was intended to mean 
achieving refuge purposes and the System mission. Therefore, to clarify 
what we mean we accept the recommendation to replace administration of 
the refuge with achievement of the refuge purposes and System mission. 
In the process of addressing comments we decided that section 29.3 
refers to the term ``nonprogram uses'' which is a term no longer 
applicable to the way we currently manage the National Wildlife

[[Page 62476]]

Refuge System. Section 29.3 provides no additional information beyond 
what we provide in section 25.21; therefore, we removed section 29.3.

Issue 24: Allowing a Use

    We received a few comments addressing the relationship between 
compatibility and actually allowing a use. The commenters stated that 
``the relationship of compatibility and refuge special use permits is 
not clear,'' ``compatibility determinations and permitting should be 
separate but linked processes' and ``we have concerns that there is no 
specific connection between a ``compatible'' compatibility finding and 
the granting of an actual permit to conduct the activity.'' We state in 
the regulations that we may open an area by regulation, individual 
permit, or public notice, in accordance with 50 CFR 25.31 and we may 
open an area only after we determine that the use is a compatible use. 
We may open refuges by a number of methods. Depending on the type of 
allowed use, the Refuge Manager has several ways to open a specific 
refuge. For example, to open a refuge to hunting, we revise a list of 
refuges allowing hunting found at 50 CFR part 32, to open a refuge to 
wildlife observation we may do so by posting a sign at an appropriate 
location and to open a refuge for a specific research project we may do 
so by issuing a special use permit. This is not new. Compatibility 
determinations are an integral part of our decision about refuge uses; 
however, it is important to note that compatibility is only one of many 
factors that we take into account when we consider allowing or not 
allowing a refuge use. We do not believe that any additional language 
is necessary to clarify this issue.

Issue 25: Public Safety

    One commenter recommended we add ``and not inconsistent with public 
safety'' in section 26.41 of the regulations and in section 2.3 of the 
policy. The commenter pointed out that this term was used in the 
NWRSIA-1997 and should be used in these regulations and policy. We 
recognize that the NWRSIA-1997 includes this directive, but have 
included it separate from compatibility. Deciding whether a proposed 
use is ``not inconsistent with public safety'' is an issue we take into 
consideration before we prepare a compatibility determination. In the 
policy at 2.10 D we list a number of situations, including 
``inconsistent with public safety,'' when a refuge manager would deny a 
proposed use without determining compatibility.

Issue 26: Support Letters

    We received many comments that stated support for a specific 
organization's comments. They were: one Native Village Corporation 
supported the Alaska Federation of Natives comments; one non-government 
organization supported the Animal Protection Institute's comments; one 
non-government organization supported the National Audubon Society's 
comments; one individual supported the Wilderness Society's comments; 
eight non-government organizations supported the Conservation Force's 
comments; and 18 non-government organizations supported the National 
Wildlife Refuge Association's comments.
    We considered these letters of endorsement at the same time we 
considered the information included in the organization's comments that 
they endorse. Since these letters of endorsement did not include new or 
additional information, we did not respond to them individually. For 
example, when we considered the issues included in the Conservation 
Force's comments, we took into account that eight conservation 
organizations endorsed their comments. Likewise, when we considered the 
issues included in the National Wildlife Refuge Association's comments, 
we took into account that 18 Friends Groups, who support local national 
wildlife refuges, formally endorsed their comments.

Issue 27: Extend Public Comment Period

    We published the proposed rule (64 FR 49056) and draft policy (64 
FR 49067) in the Federal Register on September 9, 1999. We invited the 
public to provide comments on the proposed rule and draft policy by 
November 8, 1999. During this 60-day comment period, we received 12 
written requests for an extension to the comment period. In order to 
ensure that the public had an adequate opportunity to review and 
comment on the proposed rule and draft policy, we extended the comment 
period to December 8, 1999 (64 FR 62163 published November 16, 1999). 
Therefore, the proposed rule and draft policy were available for public 
review and comment for 90 days.

Issue 28: Unrelated Comments

    We received many comment letters that did not include information 
relevant to the proposed rule and draft policy under review. Generally, 
these comments either voiced support for the Highway 12 project in 
South Dakota or voiced opinions about the appropriateness of hunting 
and trapping on national wildlife refuges. These comments did not 
contain information that we could use to improve the proposed rule and 
draft policy.

Revisions to the Proposed Rule

    We considered all of the information and recommendations for 
improvement included in the comments we received during the 90-day 
public review and comment period. We made changes to the proposed rule 
and draft policy as discussed in the ``Summary of Comments Received'' 
section of this document. The following represents a summary of the 
significant revisions made to the proposed rule and draft policy.
    (1) In the proposed regulations and draft policy we stated that 
lands subject to the patent restrictions imposed by Section 22(g) of 
ANCSA are subject to the compatibility standard. In the final 
regulations (25.21(b)) and final policy (2.8(C)) we have provided more 
detail on how this will be implemented. These changes allow us to 
conduct compatibility determinations differently with regard to the 
ANCSA 22(g) lands in recognition of the unique status of these lands.
    (2) In the proposed regulations and draft policy we stated that we 
will not allow making proposed refuge uses compatible with replacement 
of lost habitat values or other compensation. In the final regulations 
(26.41(b) and (c)) and final policy (2.11(C) and (D)) we maintain this 
requirement with one exception. We will not allow making proposed 
refuge uses compatible with replacement of lost habitat values or other 
compensatory mitigation, except for maintenance of an existing right-
of-way including minor expansions or minor realignments to meet safety 
standards. This change provides a workable mechanism for dealing with 
previously approved right-of-ways.
    (3) In the proposed regulations and draft policy we stated that 
prior to approving each compatibility determination, the Refuge Manager 
will consult with the regional office supervisor. In the final 
regulations (26.41(a)(14)) and final policy (2.12(A)(14)) we changed 
the required regional office consultation to a required regional office 
concurrence on all compatibility determinations. This change will help 
ensure that we look at both large-scale (System mission) and local-
scale (refuge purposes) issues when preparing compatibility 
determinations.
    (4) In the proposed regulations and draft policy we stated that the 
Refuge Manager may temporarily suspend, allow, or initiate any use in a 
refuge if

[[Page 62477]]

necessary to immediately act in order to protect the health and safety 
of the public or any fish or wildlife population. We stated in the 
draft policy that these temporary actions should not exceed 12 months. 
In the final policy (2.10(C)) we reduced the time frame for these 
temporary actions to not exceed 30 days.
    (5) In the proposed regulations and draft policy we stated that we 
would re-evaluate compatibility determinations for existing uses 
whenever any one of a number of criteria was met. In the final 
regulations (25.21(f), (g), (h) and (i)) and final policy (2.11(H)) we 
added significant detail to clarify certain aspects of how and when we 
would re-evaluate compatibility determinations. Among other clarifying 
language we added the following: Whenever a re-evaluation is triggered 
we will take a fresh look at the use and complete a new compatibility 
determination following the procedure outlined in the regulations and 
policy; whenever we prepare a compatibility determination for re-
authorization of an existing right-of-way, we will base our analysis on 
the existing conditions with the use in place, not from a pre-use 
perspective; for uses in existence on the effective date of these 
regulations that were specifically authorized for a period longer than 
10 years (such as right-of-ways), our compatibility re-evaluation will 
examine compliance with the terms and conditions of the authorization, 
not the authorization itself, however, the Service will request 
modifications to the terms and conditions of the permits from the 
permittee if the Service determines that such changes are necessary to 
ensure that the use remains compatible; and after the effective date of 
these regulations no uses will be permitted or re-authorized, for a 
period longer than 10 years, unless the terms and conditions for such 
long-term permits specifically allows for the modifications to the 
terms and conditions, if necessary to ensure compatibility.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The final rule was reviewed by the Office of Management and Budget 
under Executive Order 12866.
    (1) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit analysis for 
a new approach is provided in (4) below. This rule is administrative, 
legal, technical, and procedural in nature. This rule establishes the 
process for determining the compatibility of proposed national wildlife 
refuge uses as well as the procedures for documentation and periodic 
review of existing uses. We have been making compatibility 
determinations since passage of the NWRSAA-1966 in 1966. The NWRSIA-
1997, passed in 1997, does not greatly change the compatibility 
standards so we expect these procedures to cause only minor 
modifications to existing national wildlife refuge public use programs. 
We expect a small increase, up to 5 percent, in the amount of public 
use activities allowed on refuges as a result of this rule.
    The appropriate measure of the economic effect of changes in 
recreational use is the change in the welfare of recreationists. We 
measure this in terms of willingness to pay for the recreational 
opportunity. We estimated total annual willingness to pay for all 
recreation at national wildlife refuges to be $372.5 million in Fiscal 
Year 1995 (Banking on Nature: The Economic Benefits to Local 
Communities of National Wildlife Refuge Visitation, DOI/FWS/Refuges, 
1997). We expect the compatibility determination process implemented in 
this rule to cause at most a 5 percent increase in recreational use 
system-wide. This does not mean that every refuge will have the same 
increase in public use. Only refuges where increases in hunting, 
fishing, and non-consumptive visitation are compatible will we allow 
the increases. Across the entire National Wildlife Refuge System we 
expect an increase in hunting, fishing, and non-consumptive visitation 
to amount to no more than a 5 percent overall increase. If the full 5 
percent increase in public use were to occur at national wildlife 
refuges, this would translate to a maximum additional willingness to 
pay of $21 million (1999 dollars) annually for the public. However, we 
expect the real benefit to be less than $21 million because we expect 
the final increase in public use to be smaller than 5 percent. 
Furthermore, if the public substitutes non-refuge recreation sites for 
refuges, then we would subtract the loss of benefit attributed to non-
refuge sites from the $21 million estimate.
    We measure the economic effect of commercial activity by the change 
in producer surplus. We can measure this as the opportunity cost of the 
change, i.e., the cost of using the next best production option if we 
discontinue production using the national wildlife refuge. National 
wildlife refuges use grazing, haying, timber harvesting, and row crops 
to help fulfill the National Wildlife Refuge System mission and 
national wildlife refuge purposes. Congress authorizes us to allow 
economic activities of national wildlife refuges, and we do allow some. 
But, for all practical purposes, we invite (almost 100 percent) the 
economic activities to help achieve a national wildlife refuge purpose 
or National Wildlife Refuge System mission. For example, we do not 
allow farming per se, rather we invite a farmer to farm on the national 
wildlife refuge under a Cooperative Farming Agreement to achieve a 
national wildlife refuge purpose. Compatibility applies to these 
economic activities, and this rule likely will have minor changes in 
the amounts of these activities occurring on national wildlife refuges. 
Information on profits and production alternatives for most of these 
activities is proprietary, so a valid estimate of the total benefits of 
permitting these activities on national wildlife refuges is not 
available.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency since the 
rule pertains solely to management of national wildlife refuges by the 
Service.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No grants or other Federal assistance programs are 
associated with public use of national wildlife refuges.
    (4) This rule does not raise novel legal or policy issues; however, 
it does provide a new approach. This rule is significant because of 
this reason. This rule continues the practice of requiring public use 
of national wildlife refuges to be compatible. It adds the NWRSIA-1997 
provisions that ensure that compatibility becomes a more effective 
conservation standard, more consistently applied across the entire 
National Wildlife Refuge System, and more understandable and open to 
involvement by the public. A benefit/cost assessment of the 
implementation of this rule follows.
    Baseline for analysis--A ``with'' and ``without'' this rule format 
is used to determine the impact of implementing this rule on activities 
engaged in by the public on national wildlife refuge lands. The impact 
on the public of refuge visitation rates translated into public 
benefits for all wildlife-related and other activities that were 
determined compatible ``without'' this rule is the proper economic 
baseline. The Refuge Management Information System data on public 
visitation for the System for fiscal year 1999 was used to determine 
the level of baseline wildlife-related

[[Page 62478]]

activities. Non-wildlife related activities on refuges such as research 
and crop production are not estimated in the baseline but their effect 
on compatibility planning cycles is included in the cost estimate of 
this rule.
    Benefits from implementing this rule--As was estimated under (1) 
above, it is expected that a maximum of $21 million annually in 
additional consumer surplus will be attributable to this rulemaking. 
This is a System-wide estimate of the increase in consumer surplus and 
covers all public activities on System lands.
    Costs of implementing this rule--There are two components of cost 
that are relevant to this rulemaking action. They are the changes in 
the allocation of refuge labor from preparing compatibility 
determinations that include more comprehensive determinations with 
additional data requirements and public review before implementation 
and the potential costs associated with increased refuge visitation. 
The provisions of the NWRSIA-1997 call for preparing new compatibility 
determinations at least every 15 years for wildlife-dependent 
recreational uses and at least every 10 years for non-wildlife-
dependent recreational uses. This means that over the next 50 years the 
Service expects to make at least five compatibility determinations for 
non-wildlife-dependent recreational uses and at least three 
compatibility determinations for wildlife-dependent recreational uses 
on all refuges with these uses.
    Reallocation of refuge labor--Compatibility determinations require 
sound professional judgement, experience and consultation time which 
are labor costs that are fixed costs in the refuge budget and will not 
change because of this rulemaking. The requirement of consistent, 
written, and public reviewed compatibility determinations done 
according to a specific format will help to guarantee the integrity of 
the wildlife resources on the more than 93 million acres of refuge 
lands and waters administered by the Service. The allocation of 
additional time spent preparing and documenting the compatibility 
determinations with this rule compared to the time spent without this 
rule is the portion of fixed cost attributable to this rulemaking. For 
the approximately 429 refuges in the System with public use, the amount 
of time for refuge managers to become trained and familiar with the new 
procedures and requirements is estimated to be an average of five 
working days. The incremental time spent preparing the compatibility 
determinations using the new format, including public review and 
comment, is estimated to be an average of five working days. The ten 
working days per compatibility determination only applies for the first 
determination. All succeeding determinations will only take an 
additional five days each. Using the average salary level for a refuge 
manager, the discounted present value of the labor costs associated 
with learning and preparing compatibility determinations using the new 
format amounts to a cost of $5.8 million. The $5.8 million includes, 
refuge manager training, three iterations of compatibility 
determinations for wildlife-dependent recreational uses, and five 
compatibility determinations for non-wildlife-dependent recreational 
uses. The present value calculation used a real interest rate of 3.6 
percent (30 year Treasury Note real rate of interest, OMB circular A-
94). The annualized total costs over the 50 years equate to slightly 
over $242 thousand per year. The analytical cycle for this rulemaking 
was fifty years, since discounting beyond that time reduced future 
costs to a negligible amount.
    Increased public visitation--In addition to labor costs, the better 
maintenance of trust resources on refuge lands will likely lead to an 
increase in public visitation and use. This will require some 
infrastructure changes, i.e. additional nature trails, visitor center 
improvements, law enforcement, etc. Some of these costs will be a 
reallocation of refuge labor and the purchasing of additional supplies. 
For example, more brochures stating refuge hunting and fishing 
regulations, building new signs and kiosks for additional wildlife 
viewing trails. It is anticipated that a 5 percent increase in 
visitation would require some additional expenditures from existing 
refuge budgets but how much cannot be determined at this time. However, 
if each refuge with wildlife viewing and photography opportunities were 
to build a new one-mile trail for this purpose it would cost 
approximately $3 million in one time cost and nearly $400 thousand in 
annual maintenance. Hunting and fishing visits to refuges would 
increase the time refuge staff devoted to law enforcement activities 
which would mean a reallocation of time from other duties. This would 
lead to maintenance delays. There may be a small impact System-wide but 
it is impossible to attribute any of these effects to specific refuges 
at this time.
    Comparison of total benefits and total costs--The total benefits of 
this rulemaking are estimated to be $21 million annually. The total 
annualized costs include slightly over $242 thousand for more 
comprehensive compatibility determinations and approximately $500 
thousand if each refuge built and maintained an additional one-mile, 
marked nature trail. It is unknown exactly what kind of additional 
public use facilities would be required and at which refuge. Some 
refuges may be able to accommodate a small increase in public use 
without incurring additional cost and some refuges may face significant 
costs. These costs cannot be determined for sure until the Service has 
time to implement the new compatibility regulations and the public is 
given time to react to the new procedures.
    However, the estimated public benefits (a more protected and 
maintained resource base on 93 million acres of Service refuge lands 
and waters and an increase in refuge visitation, valued at $21 million 
annually) of this rulemaking substantially outweigh the known ($242 
thousand for more comprehensive compatibility determinations) and 
potential costs (potential facility enhancements and maintenance valued 
at approximately $500 thousand per year).

Regulatory Flexibility Act

    We certify that this document will not have a significant economic 
effect on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).
    Congress created the National Wildlife Refuge System to conserve 
fish, wildlife, and plants and their habitats and facilitated this 
conservation mission by providing Americans opportunities to visit and 
participate in compatible wildlife-dependent recreation, including 
fishing, hunting, wildlife observation and photography, and 
environmental education and interpretation as priority general public 
uses on national wildlife refuges and to better appreciate the value 
of, and need for, wildlife conservation.
    This rule is administrative, legal, technical, and procedural in 
nature and provides more detailed instructions for the compatibility 
determination process than have existed in the past. This rule does not 
change the compatibility standard, but implementation of the National 
Wildlife Refuge System Improvement Act of 1997 may result in more 
opportunities for wildlife-dependent recreation on national wildlife 
refuges. For example, more wildlife observation opportunities may occur 
at Florida Panther National Wildlife Refuge in Florida or more hunting 
opportunities at Pond Creek National Wildlife Refuge in Arkansas. Such 
changes in permitted use are likely

[[Page 62479]]

to increase visitor activity near the national wildlife refuge. To the 
extent visitors spend time and money in the area that they would not 
have otherwise, they contribute new income to the regional economy and 
benefit local businesses.
    National wildlife refuge visitation is a small component of the 
wildlife recreation industry as a whole. In 1996, 77 million U.S. 
residents over 15 years old spent 1.2 billion activity-days in 
wildlife-associated recreation activities. They spent about $30 billion 
on fishing, hunting, and wildlife watching trips (Tables 49, 54, 59, 
63, 1996 National Survey of Fishing, Hunting, and Wildlife-Associated 
Recreation, DOI/FWS/FA, 1997). National wildlife refuges recorded about 
29 million visitor-days that year (RMIS, FY 1996 Public Use Summary). A 
study of 1995 national wildlife refuge visitors found their travel 
spending generated $401 million in sales and 10,000 jobs for local 
economies (Banking on Nature: The Economic Benefits to Local 
Communities of National Wildlife Refuge Visitation, DOI/FWS/Refuges, 
1997). These spending figures include spending that would have occurred 
in the community anyway, and so they show the importance of the 
activity in the local economy rather than its incremental impact. 
Marginally greater recreational opportunities on national wildlife 
refuges will have little industry-wide effect.
    Expenditures as a result of this rule are a transfer and not a 
benefit to many small businesses. We expect the incremental 
recreational opportunities to be marginal and scattered so we do not 
expect the rule to have a significant economic effect on a substantial 
number of small entities in any Region or nationally.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act as discussed in the 
Regulatory Planning and Review section above. This rule:
    a. Will not have an annual effect on the economy of $100 million or 
more;
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies or geographic regions; and
    c. Will 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.

Unfunded Mandates Reform Act

    Since this rule applies to use of Federally-owned and managed 
national wildlife refuges, it does not impose an unfunded mandate on 
State, local, or Tribal governments or the private sector of more than 
$100 million per year. This rule does not have a significant or unique 
effect on State, local, 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 Executive Order 12630, this rule does not have 
significant takings implications. Therefore, a takings implication 
assessment is not required. These regulations may result in increased 
visitation at refuges and provide for minor changes to the methods of 
public use permitted within the National Wildlife Refuge System.

Federalism Assessment (E.O. 13132)

    As discussed in the Regulatory Planning and Review, and Unfunded 
Mandates Reform Act sections above, this rule will not have substantial 
direct effects on the States, in their relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 13132, the Service has determined that 
this rule does not have sufficient Federalism implications to warrant 
the preparation of a Federalism Assessment.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not contain any information collection 
requirements other than that already approved by the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 
3501). See 50 CFR 25.23 for information concerning that approval.

Section 7 Consultation

    The Service has determined that the regulations established by this 
final rule will not affect listed species or designated critical 
habitat and therefore, consultation under section 7 of the Endangered 
Species Act is not required. The basis for this conclusion is that this 
final rule establishes in regulations the process for determining 
whether or not a use of a national wildlife refuge is a compatible use. 
The compatibility determination process described in this final rule is 
only one step in the decision making process for deciding whether or 
not to permit a use of a national wildlife refuge. It is the ultimate 
decision to permit or otherwise implement a particular use that is 
causative with respect to affecting listed species or their critical 
habitat. The Service will conduct section 7 consultations when actions 
it authorizes, funds, or carries out may affect listed species or their 
critical habitat.

National Environmental Policy Act

    We ensure compliance with the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4332(C)) when developing national wildlife 
refuge comprehensive conservation plans and step-down management plans, 
and we make determinations required by NEPA before the addition of 
national wildlife refuges to the lists of areas open to public uses. 
The revisions to regulations in this document resolve a variety of 
issues concerning compatibility of national wildlife refuge uses. In 
accordance with 516 DM 2, Appendix 1.10, we have determined that this 
rule is categorically excluded from the NEPA process because it is 
limited to policies, directives, regulations and guidelines of an 
administrative, financial, legal, technical or procedural nature; or 
the environmental effects of which are too broad, speculative or 
conjectural to lend themselves to meaningful analysis. Site-specific 
proposals, as indicated above, will be subject to the NEPA process.

Available Information for Specific National Wildlife Refuges

    Individual national wildlife refuge headquarters retain information 
regarding public use programs and the conditions that apply to their 
specific programs, and maps of their respective areas.
    You may also obtain information from the Regional Offices at the 
addresses listed below:
    <bullet> Region 1--California, Hawaii, Idaho, Nevada, Oregon, and 
Washington. Regional Chief, National Wildlife Refuge System, U.S. Fish 
and Wildlife Service, Eastside Federal Complex, Suite 1692, 911 N.E. 
11th Avenue, Portland, Oregon 97232-4181; Telephone (503) 231-6214; 
http://pacific.fws.gov.
    <bullet> Region 2--Arizona, New Mexico, Oklahoma and Texas. 
Regional Chief, National Wildlife Refuge System, U.S.

[[Page 62480]]

Fish and Wildlife Service, Box 1306, Albuquerque, New Mexico 87103; 
Telephone (505) 766-1829; http://southwest.fws.gov.
    <bullet> Region 3--Illinois, Indiana, Iowa, Michigan, Minnesota, 
Missouri, Ohio and Wisconsin. Regional Chief, National Wildlife Refuge 
System, U.S. Fish and Wildlife Service, Federal Building, Fort 
Snelling, Twin Cities, Minnesota 55111; Telephone (612) 713-5300; 
http://midwest.fws.gov.
    <bullet> Region 4--Alabama, Arkansas, Florida, Georgia, Kentucky, 
Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, 
Puerto Rico and the Virgin Islands. Regional Chief, National Wildlife 
Refuge System, U.S. Fish and Wildlife Service, 1875 Century Boulevard, 
Room 324, Atlanta, Georgia 30345; Telephone (404) 679-7152; 
http://southeast.fws.gov.
    <bullet> Region 5--Connecticut, Delaware, District of Columbia, 
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, 
Pennsylvania, Rhode Island, Vermont, Virginia and West Virginia. 
Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife 
Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035-9589; 
Telephone (413) 253-8550; 
http://northeast.fws.gov.
    <bullet> Region 6--Colorado, Kansas, Montana, Nebraska, North 
Dakota, South Dakota, Utah and Wyoming. Regional Chief, National 
Wildlife Refuge System, U.S. Fish and Wildlife Service, Box 25486, 
Denver Federal Center, Denver, Colorado 80225; Telephone (303) 236-
8145; http://www.r6.fws.gov.
    <bullet> Region 7--Alaska. Regional Chief, National Wildlife Refuge 
System, U.S. Fish and Wildlife Service, 1011 E. Tudor Rd., Anchorage, 
Alaska 99503; Telephone (907) 786-3357; http://alaska.fws.gov.

Primary Author

    J. Kenneth Edwards, Refuge Program Specialist, Division of Refuges, 
U.S. Fish and Wildlife Service, is the primary author of this final 
rule.

List of Subjects

50 CFR Part 25

    Administrative practice and procedure, Concessions, Reporting and 
recordkeeping requirements, Safety, Wildlife refuges.

50 CFR Part 26

    Recreation and recreation areas, Wildlife refuges.

50 CFR Part 29

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


    For the reasons set forth in the preamble, we amend parts 25, 26, 
and 29 of Title 50, Chapter I, Subchapter C of the Code of Federal 
Regulations as follows:

PART 25--[AMENDED]

    1. The authority citation for part 25 continues to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i, 
3901 et seq.; and Pub. L. 102-402, 106 Stat. 1961.


    2. Amend Sec. 25.12 by revising the definitions of ``Coordination 
area,'' ``National wildlife refuge,'' ``National Wildlife Refuge 
System,'' and ``Service or we'' and adding alphabetically definitions 
of ``Compatibility determination,'' ``Compatible use,'' ``Comprehensive 
conservation plan,'' ``Conservation, and Management,'' ``Director,'' 
``Fish, Wildlife, and Fish and wildlife,'' ``National Wildlife Refuge 
System mission, and System mission,'' ``Plant,'' ``Purpose(s) of the 
refuge,'' ``Refuge management activity,'' ``Refuge management economic 
activity,'' ``Refuge Manager,'' ``Regional Chief,'' ``Refuge use, and 
Use of a refuge,'' ``Regional Director,'' ``Secretary,'' ``Sound 
professional judgment,'' ``State, and United States,'' ``Wildlife-
dependent recreational use, and Wildlife-dependent recreation,'' and 
``You'' to read as follows:


Sec. 25.12  What do these terms mean?

    (a) * * *
* * * * *
    Compatibility determination means a written determination signed 
and dated by the Refuge Manager and Regional Chief, signifying that a 
proposed or existing use of a national wildlife refuge is a compatible 
use or is not a compatible use. The Director makes this delegation 
through the Regional Director.
    Compatible use means a proposed or existing wildlife-dependent 
recreational use or any other use of a national wildlife refuge that, 
based on sound professional judgment, will not materially interfere 
with or detract from the fulfillment of the National Wildlife Refuge 
System mission or the purpose(s) of the national wildlife refuge.
    Comprehensive conservation plan means a document that describes the 
desired future conditions of a refuge or planning unit and provides 
long-range guidance and management direction to achieve the purposes of 
the refuge; helps fulfill the mission of the Refuge System; maintains 
and, where appropriate, restores the ecological integrity of each 
refuge and the Refuge System; helps achieve the goals of the National 
Wilderness Preservation System; and meets other mandates.
    Conservation, and Management mean to sustain and, where 
appropriate, restore and enhance, healthy populations of fish, 
wildlife, and plants utilizing, in accordance with applicable Federal 
and State laws, methods and procedures associated with modern 
scientific resource programs. Such methods and procedures include, 
consistent with the provisions of the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd-668ee), protection, 
research, census, law enforcement, habitat management, propagation, 
live trapping and transplantation, and regulated taking.
    Coordination area means a wildlife management area made available 
to a State by cooperative agreement between the U.S. Fish and Wildlife 
Service and a State agency having control over wildlife resources 
pursuant to section 4 of the Fish and Wildlife Coordination Act (16 
U.S.C. 664 or by long-term leases or agreements pursuant to title III 
of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010 et seq.). The 
States manage coordination areas but they are part of the National 
Wildlife Refuge System. The compatibility standard does not apply to 
coordination areas.
    Director means the Director, U.S. Fish and Wildlife Service or the 
authorized representative of such official.
* * * * *
    Fish, Wildlife, and Fish and wildlife mean any member of the animal 
kingdom in a wild, unconfined state, whether alive or dead, including a 
part, product, egg, or offspring of the member.
* * * * *
    National wildlife refuge, and Refuge mean a designated area of 
land, water, or an interest in land or water located within the 
National Wildlife Refuge System but does not include coordination 
areas.
    National Wildlife Refuge System, and System mean all lands, waters, 
and interests therein administered by the U.S. Fish and Wildlife 
Service as wildlife refuges, wildlife ranges, wildlife management 
areas, waterfowl production areas, coordination areas, and other areas 
for the protection and conservation of fish and wildlife including 
those that are threatened with extinction as determined in writing by 
the Director or so directed by Presidential or Secretarial order. The 
determination by the Director may not be delegated.
    National Wildlife Refuge System mission, and System mission mean to

[[Page 62481]]

administer a national network of lands and waters for the conservation, 
management, and where appropriate, restoration of the fish, wildlife, 
and plant resources and their habitats within the United States for the 
benefit of present and future generations of Americans.
* * * * *
    Plant means any member of the plant kingdom in a wild, unconfined 
state, including any plant community, seed, root, or other part of a 
plant.
    Purpose(s) of the refuge means the purposes specified in or derived 
from the law, proclamation, executive order, agreement, public land 
order, donation document, or administrative memorandum establishing, 
authorizing, or expanding a national wildlife refuge, national wildlife 
refuge unit, or national wildlife refuge subunit. For refuges that 
encompass Congressionally designated wilderness, the purposes of the 
Wilderness Act are additional purposes of the wilderness portion of the 
refuge.
    Refuge management activity means an activity conducted by the 
Service or a Service-authorized agent to fulfill one or more purposes 
of the national wildlife refuge, or the National Wildlife Refuge System 
mission. Service-authorized agents include contractors, cooperating 
agencies, cooperating associations, refuge support groups, and 
volunteers.
    Refuge management economic activity means a refuge management 
activity on a national wildlife refuge which results in generation of a 
commodity which is or can be sold for income or revenue or traded for 
goods or services. Examples include: Farming, grazing, haying, timber 
harvesting, and trapping.
    Refuge Manager means the official directly in charge of a national 
wildlife refuge or the authorized representative of such official. In 
the case of a national wildlife refuge complex, this refers to the 
official directly in charge of the complex.
    Regional Chief means the official in charge of the National 
Wildlife Refuge System within a Region of the U.S. Fish and Wildlife 
Service or the authorized representative of such official.
    Refuge use, and Use of a refuge mean a recreational use (including 
refuge actions associated with a recreational use or other general 
public use), refuge management economic activity, or other use of a 
national wildlife refuge by the public or other non-National Wildlife 
Refuge System entity.
    Regional Director means the official in charge of a Region of the 
U.S. Fish and Wildlife Service or the authorized representative of such 
official.
    Secretary means the Secretary of the Interior or the authorized 
representative of such official.
    Service, We, and Us mean the U.S. Fish and Wildlife Service, 
Department of the Interior.
    Sound professional judgment means a finding, determination, or 
decision that is consistent with principles of sound fish and wildlife 
management and administration, available science and resources, and 
adherence to the requirements of the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd-668ee), and other 
applicable laws. Included in this finding, determination, or decision 
is a refuge manager's field experience and knowledge of the particular 
refuge's resources.
    State, and United States mean one or more of the States of the 
United States, Puerto Rico, American Samoa, the Virgin Islands, Guam, 
and the territories and possessions of the United States.
* * * * *
    Wildlife-dependent recreational use, and Wildlife-dependent 
recreation mean a use of a national wildlife refuge involving hunting, 
fishing, wildlife observation and photography, or environmental 
education and interpretation. The National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd-668ee), specifies that 
these are the six priority general public uses of the National Wildlife 
Refuge System.
* * * * *
    You means the public.

    3. Revise Sec. 25.21 to read as follows:


Sec. 25.21  When and how do we open and close areas of the National 
Wildlife Refuge System to public access and use or continue a use?

    (a) Except as provided below, all areas included in the National 
Wildlife Refuge System are closed to public access until and unless we 
open the area for a use or uses in accordance with the National 
Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-
668ee), the Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) and 
this subchapter C. See 50 CFR 36 for details on use and access 
restrictions, and the public participation and closure process 
established for Alaska national wildlife refuges. We may open an area 
by regulation, individual permit, or public notice, in accordance with 
Sec. 25.31 of this subchapter.
    (b) We may open a national wildlife refuge for any refuge use, or 
expand, renew, or extend an existing refuge use only after the Refuge 
Manager determines that it is a compatible use and not inconsistent 
with any applicable law. Lands subject to the patent restrictions 
imposed by Section 22(g) of the Alaska Native Claims Settlement Act are 
subject to the compatibility requirements of Parts 25 and 26 of 50 CFR 
except as otherwise provided in paragraph (b)(1) of this section.
    (1) We will complete compatibility determinations for uses of 
Alaska Native Claims Settlement Act 22(g) lands in compliance with the 
following requirements:
    (i) Refuge managers will work with 22(g) landowners in 
implementation of these regulations. The landowners should contact the 
Refuge Manager in advance of initiating a use and request a 
compatibility determination. After a compatibility determination is 
requested, refuge managers have no longer than ninety (90) days to 
complete the compatibility determination and notify the landowner of 
the finding by providing a copy of the compatibility determination or 
to inform the landowner of the specific reasons for delay. If a refuge 
manager believes that a finding of not compatible is likely, the Refuge 
Manager will notify the landowner prior to rendering a decision to 
encourage dialog on how the proposed use might be modified to be 
compatible.
    (ii) Refuge managers will allow all uses proposed by 22(g) 
landowners when the Refuge Manager determines the use to be compatible 
with refuge purposes.
    (iii) Compatibility determinations will include only evaluations of 
how the proposed use would affect the ability of the refuge to meet its 
mandated purposes. The National Wildlife Refuge System mission will not 
be considered in the evaluation. Refuge purposes will include both pre-
ANILCA purposes and those established by ANILCA, so long as they do not 
conflict. If conflicts arise, ANILCA purposes will take precedence.
    (iv) A determination that a use is not compatible may be appealed 
by the landowner to the Regional Director. The appeal must be submitted 
in writing within forty-five (45) days of receipt of the determination. 
The appeals process provided for in 50 CFR 36.41(i) (3) through (5) 
will apply.
    (v) Compatibility determinations for proposed uses of 22(g) lands 
will only evaluate the effects of the use on the adjacent refuge lands, 
and the ability of that refuge to achieve its purposes, not on the 
effects of the proposed use to the 22(g) lands.
    (vi) Compatibility determinations for 22(g) lands that a use is 
compatible are not subject to re-evaluation unless the

[[Page 62482]]

use changes significantly, significant new information is made 
available that could affect the compatibility determination, or if 
requested by the landowner.
    (vii) Refuge comprehensive conservation plans will not include 
22(g) lands, and compatibility determinations affecting such lands will 
not to be automatically re-evaluated when the plans are routinely 
updated. (viii) Refuge special use permits will not be required for 
compatible uses of 22(g) lands. Special conditions necessary to ensure 
a proposed use is compatible may be included in the compatibility 
determination and must be complied with for the use to be considered 
compatible.
    (c) The Refuge Manager may temporarily allow or initiate any refuge 
use without making a compatibility determination if necessary to 
protect the health and safety of the public or any fish or wildlife 
population.
    (d) When we add lands to the National Wildlife Refuge System, the 
Refuge Manager will identify, prior to acquisition, withdrawal, 
transfer, reclassification, or donation of those lands, existing 
wildlife-dependent recreational public uses (if any) determined to be 
compatible that we will permit to continue on an interim basis, pending 
completion of the comprehensive conservation plan for the national 
wildlife refuge. We will make these compatibility determinations in 
accordance with procedures in Sec. 26.41 of this subchapter.
    (e) In the event of a threat or emergency endangering the health 
and safety of the public or property or to protect the resources of the 
area, the Refuge Manager may close or curtail refuge uses of all or any 
part of an opened area to public access and use in accordance with the 
provisions in Sec. 25.31, without advance notice. See 50 CFR 36.42 for 
procedures on closing Alaska national wildlife refuges.
    (f) We will re-evaluate compatibility determinations for existing 
wildlife-dependent recreational uses when conditions under which the 
use is permitted change significantly, or if there is significant new 
information regarding the effects of the use, or concurrently with the 
preparation or revision of a comprehensive conservation plan, or at 
least every 15 years, whichever is earlier. In addition, a refuge 
manager always may re-evaluate the compatibility of a use at any time.
    (g) Except for uses specifically authorized for a period longer 
than 10 years (such as right-of-ways), we will re-evaluate 
compatibility determinations for all existing uses other than wildlife-
dependent recreational uses when conditions under which the use is 
permitted change significantly, or if there is significant new 
information regarding the effects of the use, or at least every 10 
years, whichever is earlier. In addition, a refuge manager always may 
re-evaluate the compatibility of a use at any time.
    (h) For uses in existence on November 17, 2000 that were 
specifically authorized for a period longer than 10 years (such as 
right-of-ways), our compatibility re-evaluation will examine compliance 
with the terms and conditions of the authorization, not the 
authorization itself. We will frequently monitor and review the 
activity to ensure that the permittee carries out all permit terms and 
conditions. However, the Service will request modifications to the 
terms and conditions of these permits from the permittee if the Service 
determines that such changes are necessary to ensure that the use 
remains compatible. After November 17, 2000 no uses will be permitted 
or re-authorized, for a period longer than 10 years, unless the terms 
and conditions for such long-term permits specifically allows for 
modifications to the terms and conditions, if necessary to ensure 
compatibility. We will make a new compatibility determination prior to 
extending or renewing such long-term uses at the expiration of the 
authorization. When we prepare a compatibility determination for re-
authorization of an existing right-of-way, we will base our analysis on 
the existing conditions with the use in place, not from a pre-use 
perspective.
    (i) When we re-evaluate a use for compatibility, we will take a 
fresh look at the use and prepare a new compatibility determination 
following the procedure outlined in 50 CFR 26.41.

    4. Amend Sec. 25.44 by:
    a. Revising the heading and paragraphs (b), and (c)(1);
    b. Removing paragraph (d); and
    c. Redesignating paragraph (e) as (d) to read as follows:


Sec. 25.44  How do we grant permits for easement area uses?

* * * * *
    (b) We require permits for use of easement areas administered by us 
where proposed activities may affect the property interest acquired by 
the United States. Applications for permits will be submitted in 
writing to the Regional Director or a designee. We may grant special 
use permits to owners of servient estates, or to third parties with the 
owner's agreement, by the Regional Director or a designee, upon written 
determination that such permitted use is compatible. If we ultimately 
determine that the requested use will not affect the United States' 
interest, the Regional Director will issue a letter of non-objection.
* * * * *
    (c) * * *
    (1) The permitted use is compatible; and
* * * * *

PART 26--[AMENDED]

    5. The authority citation for part 26 continues to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 715i; Pub. 
L. 96-315 (94 Stat. 958) and Pub. L. 98-146 (97 Stat. 955).


    6. Add Sec. 26.41 to read as follows:


Sec. 26.41  What is the process for determining if a use of a national 
wildlife refuge is a compatible use?

    The Refuge Manager will not initiate or permit a new use of a 
national wildlife refuge or expand, renew, or extend an existing use of 
a national wildlife refuge, unless the Refuge Manager has determined 
that the use is a compatible use. This section provides guidelines for 
making compatibility determinations, and procedures for documenting 
compatibility determinations and for periodic review of compatibility 
determinations. We will usually complete compatibility determinations 
as part of the comprehensive conservation plan or step-down management 
plan process for individual uses, specific use programs, or groups of 
related uses described in the plan. We will make all compatibility 
determinations in writing.
    (a) What information do we include in a compatibility 
determination? All compatibility determinations will include the 
following information:
    (1) The proposed or existing use;
    (2) The name of the national wildlife refuge;
    (3) The authorities used to establish the national wildlife refuge;
    (4) The purpose(s) of the national wildlife refuge;
    (5) The National Wildlife Refuge System mission;
    (6) The nature and extent of the use including the following:
    (i) What is the use? Is the use a priority public use?;
    (ii) Where would the use be conducted?;
    (iii) When would the use be conducted?;
    (iv) How would the use be conducted?; and
    (v) Why is the use being proposed?.

[[Page 62483]]

    (7) An analysis of costs for administering and managing each use;
    (8) The anticipated impacts of the use on the national wildlife 
refuge's purposes and the National Wildlife Refuge System mission;
    (9) The amount of opportunity for public review and comment 
provided;
    (10) Whether the use is compatible or not compatible (does it or 
will it materially interfere with or detract from the fulfillment of 
the National Wildlife Refuge System mission or the purpose(s) of the 
national wildlife refuge);
    (11) Stipulations necessary to ensure compatibility;
    (12) A logical explanation describing how the proposed use would, 
or would not, materially interfere with or detract from the fulfillment 
of the National Wildlife Refuge System mission or the purpose(s) of the 
national wildlife refuge;
    (13) The Refuge Manager's signature and date signed; and
    (14) The Regional Chief's concurrence signature and date signed.
    (15) The mandatory 10- or 15-year re-evaluation date.
    (b) Making a use compatible through replacement of lost habitat 
values or other compensatory mitigation. We will not allow compensatory 
mitigation to make a proposed refuge use compatible, except by 
replacement of lost habitat values as provided in paragraph (c) of this 
section. If we cannot make the proposed use compatible with 
stipulations we cannot allow the use.
    (c) Existing right-of-ways. We will not make a compatibility 
determination and will deny any request for maintenance of an existing 
right-of-way which will affect a unit of the National Wildlife Refuge 
System, unless: the design adopts appropriate measures to avoid 
resource impacts and includes provisions to ensure no net loss of 
habitat quantity and quality; restored or replacement areas identified 
in the design are afforded permanent protection as part of the national 
wildlife refuge or wetland management district affected by the 
maintenance; and all restoration work is completed by the applicant 
prior to any title transfer or recording of the easement, if 
applicable. Maintenance of an existing right-of-way includes minor 
expansion or minor realignment to meet safety standards.
    (d) Termination of uses that are not compatible. When we determine 
an existing use is not compatible, we will expeditiously terminate or 
modify the use to make it compatible. Except with written authorization 
by the Director, this process of termination or modification will not 
exceed 6 months from the date that the compatibility determination is 
signed.

PART 29--[AMENDED]

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

    Authority: Sec. 2, 33 Stat. 614, as amended, sec. 5, 43 Stat. 
651, secs. 5, 10, 45 Stat. 449, 1224, secs. 4, 2, 48 Stat. 402, as 
amended, 1270, sec. 4, 76 Stat. 645; 5 U.S.C. 301, 16 U.S.C. 668dd, 
685, 725, 690d, 715i, 664, 43 U.S.C. 315a, 16 U.S.C. 460k; 80 Stat. 
926.


    8. Revise Sec. 29.1 to read as follows:


Sec. 29.1  May we allow economic uses on national wildlife refuges?

    We may only authorize public or private economic use of the natural 
resources of any national wildlife refuge, in accordance with 16 U.S.C. 
715s, where we determine that the use contributes to the achievement of 
the national wildlife refuge purposes or the National Wildlife Refuge 
System mission. We may authorize economic use by appropriate permit 
only when we have determined the use on a national wildlife refuge to 
be compatible. Persons exercising economic privileges on national 
wildlife refuges will be subject to the applicable provisions of this 
subchapter and of other applicable laws and regulations governing 
national wildlife refuges. Permits for economic use will contain such 
terms and conditions that we determine to be necessary for the proper 
administration of the resources. Economic use in this section includes 
but is not limited to grazing livestock, harvesting hay and stock feed, 
removing timber, firewood or other natural products of the soil, 
removing shell, sand or gravel, cultivating areas, or engaging in 
operations that facilitate approved programs on national wildlife 
refuges.


Sec. 29.3  [Reserved]

    9. Remove and reserve Sec. 29.3.

    10. Amend Sec. 29.21 by:
    a. Revising the heading;
    b. Removing the paragraph designations and placing the definitions 
in alphabetical order;
    c. Removing the definitions of ``Compatible,'' ``Regional 
Director,'' ``Secretary,'' and ``Service;'' and
    d. Adding a definition of ``Compatible use'' to read as follows:


Sec. 29.21  What do these terms mean?

    Compatible use means a proposed or existing wildlife-dependent 
recreational use or any other use of a national wildlife refuge that, 
based on sound professional judgment, will not materially interfere 
with or detract from the fulfillment of the National Wildlife Refuge 
System mission or the purposes of the national wildlife refuge. The 
term ``inconsistent'' in section 28(b)(1) of the Mineral Leasing Act of 
1920 (30 U.S.C. 185) means a use that is not compatible.
* * * * *

    11. Amend Sec. 29.21-7 by removing paragraph (c) and revising the 
heading to read as follows:


Sec. 29.21-7  What payment do we require for use and occupancy of 
national wildlife refuge lands?

    Dated: July 28, 2000.
Stephen C. Saunders,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 00-26389 Filed 10-17-00; 8:45 am]
BILLING CODE 4310-55-P