62458 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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.

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 caseby-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 wildlifedependent 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

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 timeframe, 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 wildlifedependent 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-ofway), 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, nongovernment 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

62460 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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–

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 62461

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

62462 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 sitespecific 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

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

62464 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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

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

62466 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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

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

62468 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 wildlifedependent 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,

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

62470 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 refugespecific 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

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

62472 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 reevaluation 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 reevaluation criteria is the maximum

period of time we can go without a reevaluation 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 reevaluate 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-ofways. Generally, these commenters

asked that we further clarify how reevaluations will be conducted for rightof-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-ofways. We discuss this issue earlier in

this document under Issue 10: Right-ofways 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-ofway 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 reevaluations 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 reauthorizing 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 reevaluation 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

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

62474 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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.

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 wildlifedependent recreational public uses do

not include private uses. One

commenter recommended clarifying

what public means. With regard to preacquisition 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 preacquisition compatibility

determinations, we believe that

Congress was referring to existing

wildlife-dependent recreational public

uses rather than existing wildlifedependent recreational private uses. In

order to make this distinction in policy

and regulations, we used the word

‘‘public’’ in our discussion of preacquisition 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 preacquisition 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

62476 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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-ofway 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

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

Among other clarifying language we

added the following: Whenever a reevaluation 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 rightof-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-ofways), 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 costbenefit 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 systemwide. This does not mean that every

refuge will have the same increase in

public use. Only refuges where

increases in hunting, fishing, and nonconsumptive 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

62478 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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-wildlifedependent 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 wildlifedependent 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

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

• 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.

• Region 2—Arizona, New Mexico,

Oklahoma and Texas. Regional Chief,

National Wildlife Refuge System, U.S.

62480 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

Fish and Wildlife Service, Box 1306,

Albuquerque, New Mexico 87103;

Telephone (505) 766–1829; http://

southwest.fws.gov.

• 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.

• 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.

• 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.

• 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.

• 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 § 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,’’ ‘‘Wildlifedependent recreational use, and

Wildlife-dependent recreation,’’ and

‘‘You’’ to read as follows:

§ 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

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 § 25.21 to read as follows:

§ 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 § 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

62482 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 § 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

§ 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 wildlifedependent 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 reevaluate 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 reevaluate compatibility determinations

for all existing uses other than wildlifedependent 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 longterm 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 reauthorization of an existing right-ofway, 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 § 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:

§ 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 nonobjection.

* * * * *

(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 § 26.41 to read as follows:

§ 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?.

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 reevaluation 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 § 29.1 to read as follows:

§ 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.

§ 29.3 [Reserved]

9. Remove and reserve § 29.3.

10. Amend § 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:

§ 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 § 29.21–7 by removing

paragraph (c) and revising the heading

to read as follows:

§ 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