[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Proposed Rules]
[Pages 49056-49066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22992]
[[Page 49055]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 Parts 25, 26 and 29
Proposed Compatibility Regulations Pursuant to the National Wildlife
Refuge System Improvement Act of 1997 and Draft Compatibility Policy
Pursuant to the National Wildlife Refuge System Improvement Act of
1997; Proposed Rule and Notice
Federal Register / Vol. 64, No. 174 / Thursday, September 9, 1999 /
Proposed Rules
[[Page 49056]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 25, 26, and 29
1018-AE98
Proposed Compatibility Regulations Pursuant to the National
Wildlife Refuge System Improvement Act of 1997
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We propose to establish in regulations, the process for
determining whether or not a use of a national wildlife refuge is a
compatible use. The National Wildlife Refuge System Improvement Act of
1997 (NWRSIA-1997), that amends the National Wildlife Refuge System
Administration Act of 1966 (NWRSAA-1966) requires this rulemaking.
Published concurrently in this issue of the Federal Register is our
draft compatibility policy describing in more detail the process for
determining whether or not a use of a national wildlife refuge is a
compatible use.
DATES: Submit comments on or before November 8, 1999.
ADDRESSES: Send comments concerning this proposed compatibility
regulation via mail, fax or email to: Chief, Division of Refuges, U.S.
Fish and Wildlife Service, 4401 North Fairfax Drive, Room 670,
Arlington, Virginia 22203; fax (703) 358-2248; e-mail
Compatibility__Regulations__ Comments@fws.gov.
FOR FURTHER INFORMATION CONTACT: Jim Kurth, Chief, Division of Refuges,
U.S. Fish and Wildlife Service, Telephone (703) 358-1744.
SUPPLEMENTARY INFORMATION: The NWRSIA-1997 amends and builds upon the
NWRSAA-1966, providing an ``Organic Act'' for the National Wildlife
Refuge System. It 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 national
wildlife 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 national
wildlife refuge. We built this legal requirement into our policy and
regulation. For 32 years, the compatibility standard for national
wildlife refuge uses has helped us manage national wildlife 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 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.
Compatibility and the NWRSIA-1997
The NWRSIA-1997 includes a number of provisions that specifically
address compatibility. The following is a summary of those provisions
and how they apply to us.
We will not initiate or permit a new use of a national wildlife
refuge or expand, renew, or extend an existing use of a national
wildlife refuge, unless we have determined that the use is a compatible
use and that the use is not inconsistent with public safety. We may
make compatibility determinations for a national wildlife refuge
concurrently with the development of a Comprehensive Conservation Plan.
On lands added to the National Wildlife Refuge System after March
25, 1996, we will identify, prior to acquisition, withdrawal, transfer,
reclassification, or donation of any such lands, existing compatible
wildlife-dependent recreational public uses (if any) that we will
permit to continue on an interim basis pending completion of a
Comprehensive Conservation Plan for the national wildlife refuge.
We may authorize wildlife-dependent recreational uses on a national
wildlife refuge when we determine they are compatible uses and are not
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.
By October 9, 1999, we will issue final regulations establishing
the process for determining whether or not a use of a national wildlife
refuge is a compatible use. These regulations will:
1. Identify the refuge official responsible for making
compatibility determinations;
2. Require an estimate of the time-frame, location, manner, and
purpose of each use;
3. Require the identification of the effects of each use on
national wildlife refuge resources and purposes of each national
wildlife refuge;
4. Require that compatibility determinations be made in writing;
5. Provide for the expedited consideration of uses that will likely
have no detrimental effect on the fulfillment of the affected national
wildlife refuge's purposes or the National Wildlife Refuge System
Mission;
6. Provide for the elimination or modification of any use as
expeditiously as practicable after we make a determination that the use
is not a compatible use;
7. Require, after an opportunity for public comment, reevaluation
of each existing use, other than wildlife-dependent recreational uses,
if conditions under which the permitted use change significantly or if
there is significant new information regarding the effects of the use,
but not less frequently than once every 10 years, to ensure that the
use remains a compatible use. In the case of any use authorized for a
period longer than 10 years (such as an electric utility right-of-way),
the reevaluation will examine compliance with the terms and conditions
of the authorization, not examine the authorization itself;
8. Require, after an opportunity for public comment, reevaluation
of each existing wildlife-dependent recreational use when conditions
under which the permitted use 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
[[Page 49057]]
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 Proposed Rule
The purpose of this proposed rule is to establish in regulation,
the process for determining compatibility of proposed national wildlife
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 draft
compatibility policy, Part 603 Chapter 3 (draft) of the Fish and
Wildlife Service Manual, which reflects this proposed rule and provides
additional detail for each step in the compatibility determination
process.
Specific Changes to 50 CFR Part 25
We are revising Sec. 25.12(a) by adding 20 new definitions and
revising 3 existing definitions. Of the 20 new definitions, the NWRSIA-
1997 provides 11 (``compatible use,'' ``conservation, and management,''
``Director,'' ``fish, wildlife, and fish and wildlife,'' ``National
Wildlife Refuge System Mission, and Refuge System Mission,'' ``plant,''
``purpose(s) of the refuge,'' ``Secretary,'' ``sound professional
judgment,'' ``State, and United States,'' and ``wildlife-dependent
recreational use, and wildlife-dependent recreation'') and we developed
9 (``compatibility determination,'' ``comprehensive conservation
plan,'' ``Refuge Manager,'' ``refuge use, and use of a refuge,''
``refuge management economic activity,'' ``refuge management
activity,'' ``Regional Director,'' ``Service, and we,'' and ``you'').
The 3 existing definitions (``coordination area,'' ``national wildlife
refuge, and refuge'' and ``National Wildlife Refuge System, and Refuge
System'') that we are revising are provided in the NWRSIA-1997 and are
not significantly different from the existing ones. These definitions
are necessary to consistently determine compatibility of proposed
national wildlife refuge uses.
We are revising and expanding Sec. 25.21 in order to explain how we
open and close a national wildlife refuge to public access and use, and
how we continue to allow an existing use of a national wildlife refuge.
Currently, this part only addresses closing national wildlife refuges.
We are expanding this section because this is the most appropriate
place in this subchapter to state not only how we close a national
wildlife refuge but how we open a national wildlife refuge and continue
a use on a national wildlife refuge. This revision of Sec. 25.21
consolidates existing regulations but does not change existing
regulations regarding how we open and close national wildlife refuges
or continue uses on national wildlife refuges. The following is a
discussion of the specific sections we are adding.
Paragraph (a) of Sec. 25.21--When and how do we open and close
areas of the National Wildlife Refuge System to public access and use
or continue a use?--states our long-standing policy and regulation
under the NWRSAA-1966 that presumes that national wildlife refuges are
closed to public access and use until they are specifically opened to
public access and use. Simply stated, the NWRSAA-1966 closes national
wildlife refuges until we administratively open them. This section also
states that we may open national wildlife refuges by a number of
methods. Depending on the type of allowed use, the Refuge Manager has
several ways to open a given national wildlife refuge. For example, to
open a national wildlife refuge to hunting, we revise a list of refuges
allowing hunting found at 50 CFR part 32, whereas to open a national
wildlife refuge to wildlife observation we may do so by posting a sign
at an appropriate location. This revised section does not change the
various ways we currently open a national wildlife refuge.
Paragraph (b) of Sec. 25.21 states that we cannot allow a use of a
national wildlife refuge unless we first determine that the use is a
compatible use, except in emergencies when we may temporarily allow
uses to protect the public or wildlife. This comes directly from the
NWRSIA-1997. In addition, this section states that the compatibility
standard applies to the development and use of Alaska Native Claims
Settlement Act, Section 22(g) village lands in Alaska national wildlife
refuges. The Alaska Statehood Act of 1959 allowed the new state to
select 104 million acres of Federal lands (outside of existing parks,
national wildlife refuges, and military reservations) but left the
matter of Native land claims ``* * * for either future legislative
action or judicial determination.'' Passage of the Alaska Native Claims
Settlement Act (ANCSA) (December 18, 1971) later settled Native land
claims by providing a cash settlement over a number of years, together
with 44 million acres to be selected from Federal public lands. Section
22(g) of ANCSA provides, that ``[I]f 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 shall contain a
provision that such lands remain subject to the laws and regulations
governing use and development of such Refuge.'' The legislative history
of ANCSA 22(g) clearly illustrates the Congressional intent that the
national wildlife refuge compatibility standard applies as a protection
to the basic integrity of the pre-1971 refuge lands from which ANCSA
village conveyances may be made. S. Rep. No. 92-405, at 34 in a
section-by-section analysis explains: ``[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.''
Paragraph (c) of Sec. 25.21 is a requirement to identify and inform
the public, prior to adding lands to the National Wildlife Refuge
System, as to which existing wildlife-dependent recreational public
uses we will allow to continue on the newly added lands between the
time we acquire the lands and completion of a Comprehensive
Conservation Plan. This does not relieve us from the requirement that
before we may allow a use on a national wildlife refuge, we must first
determine that it is a compatible use. We will prepare a compatibility
determination as we would for any other use, but in this case we will
prepare the compatibility determination prior to adding the land to the
National Wildlife Refuge System.
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This comes directly from the NWRSIA-1997.
Paragraph (d) of Sec. 25.21 states that we may close a national
wildlife refuge to public access and use. This is essentially the same
language as currently exists in Sec. 25.21 and does not change the way
we currently close a national wildlife refuge.
Paragraphs (e), (f), and (g) of Sec. 25.21 require that we must
periodically re-evaluate uses to ensure that they continue to be
compatible. The NWRSIA-1997 provides specific criteria for re-
evaluating three categories of uses (wildlife-dependent recreational
uses, uses other than wildlife-dependent recreational uses except for
uses authorized for more than 10 years, and uses authorized for more
than 10 years). The re-evaluation schedule for wildlife-dependent
recreational uses is tied closely to the Comprehensive Conservation
Plan schedule. We must re-evaluate this category of uses at least every
15 years which is the same minimum requirement for revising
Comprehensive Conservation Plans. The re-evaluation schedule for uses
other than wildlife-dependent recreational uses is more stringent. We
must re-evaluate this category of uses at least every 10 years. The
third category is for special activities such as the granting of a
utility line right-of-way which may require a term beyond ten years.
The NWRSIA-1997 limits the re-evaluation in these cases to whether the
original terms and conditions of the permit had been complied with by
the permittee.
We will most likely re-evaluate the first two categories of uses
more often than the minimum requirement because new information may
become available or the conditions for conducting the use may change
that would engage the re-evaluation requirement.
As noted previously, the NWRSIA-1997 specifically separates out
uses authorized for a period longer than 10 years, and this will almost
always involve a right-of-way use. The primary reason for this
particular separation is to clarify that once we prepare a
compatibility determination for a use specifically authorized for a
relatively long period of time (greater than 10 years), we will not re-
evaluate the use for compatibility until and unless the authorization
has expired and we are considering extending or renewing the
authorization. When we authorize a use for greater than 10 years, we
develop terms and conditions associated with the use that the permittee
must follow. We design terms and conditions to ensure that the
authorized use will remain compatible, and we check compliance
regularly with these terms and conditions.
We are revising Sec. 25.44 to incorporate the definition of
compatibility from the NWRSIA-1997 and to remove the option of using
mitigation measures to make uses of easement areas of a national
wildlife refuge compatible. We also changed the heading to comply with
the plain language requirement for new regulations. The following is a
discussion of the specific revised sections.
We are revising paragraph (b) of Sec. 25.44 by placing a period
after the word ``compatible'' and deleting ``with the purposes for
which the easement was acquired'' in the third sentence. It is
necessary to either end the sentence after the word ``compatible'' or
repeat the entire definition of compatible which we now define in
Sec. 25.12. Since we use the term ``compatible use'' extensively
throughout subchapter C, we will define this term in the definitions
section and then only use the term without repeating the definition. We
also made minor word changes to comply with the plain language
requirement for new regulations.
We are revising paragraph (c)(1) of Sec. 25.44 by placing a
semicolon after the word ``compatible'' and deleting ``with the
purposes for which the Service's easement was acquired.'' This is
necessary for the same reason described in the above paragraph.
We are removing paragraph (d) of Sec. 25.44 for the reasons stated
in the discussion of proposed paragraph (b) of Sec. 26.41.
Specific Changes to 50 CFR Part 26
We are adding Sec. 26.41 to establish in regulations the process
for determining whether or not a proposed or existing use of a national
wildlife refuge is a compatible use. Rather than revise an existing
section of part 26 to include this process, we believe it should be a
separate section within part 26.
This section clearly states that we cannot allow a use of a
national wildlife refuge unless we first determine that it is a
compatible use. This has been a legal requirement since 1962 for
recreational uses and since 1966 for all uses. This rule does not
change that legal requirement; however, it more clearly states the
requirement and provides additional detail of how we will make the
determination. This section requires that we make all compatibility
determinations in writing and include the following information which
is necessary to make the determination:
(1) The proposed or existing use being evaluated. This may be an
individual use or a group of closely related uses or a use program.
Whenever practicable, the Refuge Manager will concurrently consider
similar uses or uses that are likely to have similar effects, in order
to facilitate analysis of cumulative effects. This includes, all uses
as defined by the term ``refuge use'' to mean a recreational use,
refuge management economic activity, refuge action undertaken
principally to support a recreational or other general public use, or
other use of a national wildlife refuge by the public or other non-
Service entity.
(2) The name of the national wildlife refuge. We will state the
name of the national wildlife refuge where the proposed use may occur
or where the existing use is occurring.
(3) The authorities used to establish the national wildlife refuge.
This could include a variety of authorities including Executive Orders,
public land orders, Secretarial Orders, refuge-specific legislation, or
general legislation. For example, the establishing authority for Archie
Carr National Wildlife Refuge in Florida is the Endangered Species Act
of 1973 and for Breton National Wildlife Refuge in Louisiana it is
Executive Order 7938.
(4) The major purposes of the national wildlife refuge. This will
be a statement of the major purposes for which the refuge was
established and will be based on those things that are referenced in
the definition of the term ``purposes of the refuge.'' For example, the
purposes of Okefenokee National Wildlife Refuge in Georgia are ``* * *
as a refuge and breeding ground for migratory birds and other wildlife:
* * *'' Executive Order 7593, dated March 30, 1937, ``* * * for use as
an inviolate sanctuary, or for any other management purpose, for
migratory birds.'' 16 U.S.C. 715d (Migratory Bird Conservation Act) and
``* * * to conserve (A) fish or wildlife which are listed as endangered
species or threatened species * * * or (B) plants * * *'' 16 U.S.C.
1534 (Endangered Species Act of 1973).
(5) The National Wildlife Refuge System Mission. The Mission of the
National Wildlife Refuge System is ``to 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.'' This is directly from the NWRSIA-
1997.
(6) The nature and extent of the use including the following: (i)
What is the use? (ii) Where would the use be
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conducted? (iii) When would the use be conducted? (iv) How would the
use be conducted? This will include such things as specific areas of
the national wildlife refuge where the use would take place, habitat
types and acres involved, key species in the area, time of year and
duration of the use, number of people involved, and facilities needed.
With regard to facilities, structures, or improvements constructed
or installed by us (or at our direction) in conjunction with a use, and
refuge management activities undertaken in conjunction with a use, Part
603 Chapter 3 (draft) Section 3.9 of the Service Manual makes it clear
to Refuge Managers that they must consider these things when making
compatibility determinations. This requirement will apply to all such
facilities, structures, improvements, and refuge actions associated
with uses that we approve on or after the effective date of these
regulations and to the replacement or major repair or alteration of
facilities, structures, and improvements associated with already
approved uses.
It goes without saying that these facilities, structures, and
improvements are and have been subject to compatibility determinations
when proposed by an applicant as part of a requested use. It has not,
however, been our clear policy to include these types of facilities,
structures, or improvements in such analyses when we have built or
installed them. We have historically viewed them as part of our
management activities and, as a general matter, they have not
specifically been the subject of the compatibility determinations.
The NWRSIA-1997's amendments to the NWRSAA-1966 have caused us to
re-address this issue. Requiring Refuge Managers to ensure that our
installed facilities and management activities that are associated with
public uses are compatible will provide an additional measure of
protection for each national wildlife refuge and for the National
Wildlife Refuge System. It will further enable us to accomplish the
Secretary's responsibilities under the NWRSIA-1997's amendments to
conserve fish, wildlife, plants, and their habitats; to ensure the
biological integrity, diversity and environmental health of the
National Wildlife Refuge System; and to ensure that we carry out the
purposes of each national wildlife refuge and the National Wildlife
Refuge System Mission.
With regard to refuge management economic activities (defined at
Sec. 25.12), we are also making it clear in Part 603 Chapter 3 (draft)
Section 3.9 of the Service Manual that whenever an activity designed to
achieve a management objective but performed by a member of the public
will result in the generation of income or in a commodity that is or
can be sold or traded by them, a Refuge Manager must make a
compatibility determination before allowing the activity. The issue
here is that some management activities (timber harvesting in order to
provide a certain type of habitat, for example) can also generate local
economic dependency upon a continuation of the activity or create an
appearance that it is a use, not a management activity. In some
instances, such a dependency could outweigh and override the management
needs of the refuge and in fact become more in the nature of a use. In
some past instances, this local economic dependency ultimately
outweighed and overrode the biological needs or interests of the
affected national wildlife refuges and became not compatible. We
believe that the local economic aspect of these refuge management
economic activities enhances the possibility of compatibility problems,
thereby warranting the preparation of compatibility determinations.
This requirement will apply to all refuge management economic
activities approved or extended on or after the effective date of these
regulations.
We want to make it clear that because a compatibility determination
is not being required for other Service management activities, those
activities will not escape scrutiny. To properly manage a national
wildlife refuge, a Refuge Manager must take actions that will lead
toward accomplishing the purposes of that national wildlife refuge.
This, in fact, is a different but higher standard than that applied to
uses. Authorizing a use requires the Refuge Manager to find that it
will ``not materially interfere with or detract from'' fulfilling the
refuge purposes and Refuge System Mission, whereas management
activities of a Refuge Manager must be for accomplishing those
purposes. Refuge Managers are constantly engaging in the difficult job
of marshaling the necessary resources and equipment, controlling uses,
providing the necessary habitat, managing personnel, seeking enhanced
budget allocations, and taking numerous other actions all with the
ultimate goal of accomplishing those purposes. Each Refuge Manager is
responsible for ensuring that what we do at each particular national
wildlife refuge in the name of management is done with that goal in
mind.
(7) An analysis of costs for administering and managing each use.
This will be an analysis of adequate resources (including financial,
personnel, facilities, and other infrastructure) to properly develop,
operate, and maintain the use at an acceptable level. It would include:
resources involved in the administration and management of the use;
special equipment, facilities or improvements necessary to support the
use and comply with disabled access requirements, such as costs
associated with special equipment, physical changes, or necessary
improvements; maintenance costs associated with the use (e.g., trail
maintenance and mowing, signing, garbage pickup or sanitation costs,
parking areas, road repair or grading, building or structure repair,
including blinds, boat ramps, kiosks, etc.); and monitoring costs to
assess the impact of uses over time. This analysis of cost for
administering and managing each use will only include the incremental
increase above general operational costs that we can show as being
directly caused by the proposed use.
(8) The anticipated impacts of the use on the national wildlife
refuge's major purposes and the National Wildlife Refuge System
Mission. This will include an assessment of the potential impacts of a
proposed use on the national wildlife refuge purposes and the National
Wildlife Refuge System Mission. Refuge Managers will use available
sources of information to substantiate their analysis. Sources may
include planning documents, environmental assessments, environmental
impact statements, annual narratives, information from previously-
conducted or ongoing research, data from refuge inventories or studies,
published literature on related biological studies, State conservation
management plans, field management experience, etc. We do not require
Refuge Managers to independently generate new data on which to base
compatibility determinations but rather to work with available
information. The Refuge Manager may work at his or her discretion with
the proponent of the use to gather additional information before making
the determination. If the available information is insufficient to
document that a proposed use will be compatible, the use is not
compatible, and we will not authorize or permit the use.
(9) A logical explanation describing how the proposed use affects
fulfillment of the national wildlife refuge's major purposes and the
National Wildlife Refuge System Mission. After completing steps 1-8,
the Refuge Manager will provide a written and logical explanation of
the rationale for,
[[Page 49060]]
or the rational basis behind, the determination. The justification will
describe how the proposed use affects the fulfillment of the national
wildlife refuge's major purposes and the National Wildlife Refuge
System Mission.
(10) The amount of opportunity for public review and comment
provided. The Refuge Manager will provide an adequate opportunity for
public review and comment on the proposed refuge use before issuing a
final compatibility determination. Providing for public review and
comment includes actively seeking to identify and inform individuals
and organizations reasonably affected by or interested in the proposed
refuge use. Additionally, review and comment will offer the public the
opportunity to provide relevant information and express their views on
whether or not a use is compatible. The Refuge Manager will determine
the level of opportunity for public review and comment that is
necessary or appropriate based upon the complexity or controversial
nature of the use, the anticipated adverse impacts to the refuge and
potential public interest. For compatibility determinations prepared
concurrently with Comprehensive Conservation Plans, we can achieve
public review and comment concurrently with the public review and
comment of the draft Comprehensive Conservation Plan and associated
NEPA document. For compatibility determinations prepared separate from
a Comprehensive Conservation Plan, we will determine the appropriate
level of opportunity for public review and comment through a tiered
approach. For minor, incidental, or one-time uses which have been shown
by past experience at this or other refuges in the Refuge System to
result in no significant, cumulative, lingering or continuing adverse
impacts to the refuge and would likely generate minimal public
interest, the public review and comment requirement can be accomplished
by posting a notice of the proposed determination at the refuge
headquarters so as to maximize the opportunity for comment as is
practicable. For all other uses, at a minimum, the Refuge Manager will
solicit public comment by placing a public notice in a newspaper with
wide local distribution. The notice must contain, at a minimum: a brief
description of the compatibility determination process, a description
of the use that is being evaluated, the types of information that may
be used in completing the evaluation, how to provide comments, when
comments are due, and how people may be informed of the decision the
Refuge Manager will make regarding the use. The public will be given at
least 14 calendar days to provide comments following the day the notice
is published. This period may be reduced by the Refuge Manager when
there is not sufficient time to provide the full 14-days. For
evaluations of controversial or complex uses, the Refuge Manager should
expand the public review and comment process to allow for additional
opportunities for comment. This may include newspaper or radio
announcements, notices or postings in public places, notices in the
Federal Register, letters to potentially interested people such as
adjacent landowners, holding public meetings, or extending the comment
period.
(11) Whether the use is compatible or not compatible. The Refuge
Manager will simply identify whether the use is compatible or not
compatible based on the explanation under (9), above.
(12) Stipulations necessary to ensure compatibility. This will
include such protective stipulations, detailed and specific, that are
necessary for a particular use to be compatible. They may include such
things as: limitations on time (daily, seasonal, or annual) or space
where the use would occur; the routes or forms of access for the use;
restrictions on the types of equipment used; and the number of people
involved.
(13) The name of the Regional Office Supervisor or designee that
was consulted with and date of consultation prior to approving each
compatibility determination. Prior to approving each compatibility
determination, the Refuge Manager will consult with their Regional
Office Supervisor or designee. The Refuge Manager will document the
consultation by recording on the compatibility determination form the
date and name of person consulted with.
(14) The Refuge Manager's signature and date signed. The Refuge
Manager will sign and date the compatibility determination.
Paragraph (b) of Sec. 26.41 states that 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.) This does not change the current
general application of the compatibility standard and represents a
change only in our application of the standard with regard to rights-
of-way and easement area uses. The review and analysis of current
regulations that we conducted while complying with the mandate of the
NWRSIA-1997 to issue compatibility regulations caused us to look into
the right-of-way and easement area uses regulations. We found no
authority in law to allow an incompatible use where the Service
receives some sort of compensatory mitigation. In this regard, we are
also proposing to delete paragraph (d) of Sec. 25.44, which authorizes
the Service to require ``mitigation measures'' within the easement area
to ``make the proposed use compatible'' and paragraph (c) of
Sec. 29.21-7, which authorizes the Service to require ``mitigation
measures'' on- or off-site to ``make the proposed use compatible.''
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. This change does not alter our current practice that
if a use as proposed is deemed not compatible, the applicant can
certainly re-propose or amend the original proposed use to avoid the
troublesome impacts and render the use compatible.
Paragraph (c) of Sec. 26.41 requires us to either terminate an
existing use or modify an existing use to make it compatible as
expeditiously as practicable whenever we determine an existing use is
not compatible. For example, if a group of colonial nesting birds began
nesting in an area open to fishing by motorized boats, and,
consequently, we determined fishing in this area to be not compatible
because of disturbance to the nesting birds, we would likely modify the
fishing program (prohibit fishing from that particular portion of the
area open to fishing or perhaps requiring non-motorized boats) in order
to make it compatible.
Specific Changes to 50 CFR Part 29
We are revising Sec. 29.1 by replacing ``will not be incompatible
with the purposes for which the refuge was established'' with language
consistent with the new definition of ``compatible use.'' This revised
language is consistent with the definition of compatible use in
Sec. 25.12. Since we use extensively the term ``compatible use''
throughout subchapter C, we define this term in Sec. 25.12 and then
only use the term without repeating the definition. We also made word
changes throughout to comply with the plain language requirement for
new regulations.
We are revising Sec. 29.3 by replacing ``compatible with the major
purposes for which such areas are established'' with language
consistent with the new definition of ``compatible use.'' This is
necessary for the same reason described
[[Page 49061]]
in the above paragraph. We also made word changes throughout to comply
with the plain language requirement for new regulations.
We are revising Sec. 29.21 by removing the definitions of
``Secretary,'' ``Service,'' and ``Regional Director,'' and revising the
definition of ``Compatible.'' The three definitions are not necessary
because we include them in Sec. 25.12. Part 25 is the first part of
subchapter C and is the most appropriate place for definitions used
throughout subchapter C. It is generally not necessary to repeat
definitions in other parts of this subchapter. We are revising the
definition of ``Compatible'' to be consistent with the NWRSIA-1997. We
define ``Compatible use'' in Sec. 25.12; however, it is necessary to
repeat it here because it explains the relationship between the terms
``inconsistent'' in the Mineral Leasing Act of 1920 and ``compatible''
in the NWRSIA-1997. The term ``inconsistent'' means the same as ``not
compatible.''
We are removing Sec. 29.21-7(c) for the reasons stated in the
discussion of proposed paragraph (b) of Sec. 26.41.
Comment Solicitation
If you wish to comment, you may submit your comments by any one of
several methods. You may mail comments to: Chief, Division of Refuges,
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 670,
Arlington, Virginia 22203. You may comment via the Internet to:
Compatibility__Regulations__ Comments@fws.gov. Please submit Internet
comments as an ASCII file avoiding the use of special characters and
any form of encryption. Please also include: ``Attn: 1018-AE98'' and
your name and return address in your Internet message. If you do not
receive a confirmation from the system that we have received your
Internet message, contact us directly at (703) 358-1744. You may also
fax comments to: Chief, Division of Refuges, (703) 358-2248. Finally,
you may hand-deliver comments to the address mentioned above.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
We seek public comments on this proposed compatibility regulation
and will take into consideration comments and any additional
information received during the 60-day comment period. When finalized,
we will incorporate this regulation into Title 50 Code of Federal
Regulations (50 CFR) parts 25, 26, and 29. Part 25 contains general
administrative provisions which govern national wildlife refuges, part
26 contains provisions that govern public entry and use of the National
Wildlife Refuge System, and part 29 contains provisions that govern
land use management.
We published a notice in the Federal Register on January 23, 1998
(63 FR 3583) notifying the public that we would be revising the Fish
and Wildlife Service Manual, establishing regulations as they relate to
the NWRSIA-1997, and offering to send copies of specific draft Service
Manual chapters to anyone who would like to receive them. We will mail
a copy of the draft compatibility Service Manual chapter published
concurrently in this Federal Register to those who requested one, along
with a copy of this proposed compatibility regulation. In addition,
this proposed compatibility regulation and the draft compatibility
Service Manual chapter will be available on the National Wildlife
Refuge System web site (http://refuges.fws.gov) during the 60-day
comment period.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (5) Is the description of the rule in
the ``Supplementary Information'' section of the preamble helpful in
understanding the rule? (6) What else could we do to make the rule
easier to understand?
Statutory Authority
The National Wildlife Refuge System Administration Act of 1966
(NWRSAA-1966), (16 U.S.C. 668dd-668ee), and the Refuge Recreation Act
of 1962 (RRA-1962), (16 U.S.C. 460k-460k-4) govern the administration
and use of the National Wildlife Refuge System.
The NWRSIA-1997 is the latest amendment to the NWRSAA-1966. It
amends and builds upon the NWRSAA-1966 in a manner that provides an
``Organic Act'' for the National Wildlife Refuge System. It serves to
ensure that we effectively manage the National Wildlife Refuge System
as a national system of lands, waters and interests for the protection
and conservation of our Nation's wildlife resources.
The NWRSAA-1966 states, first and foremost, that the National
Wildlife Refuge System Mission is the conservation of fish, wildlife,
and plant resources and their habitat. The NWRSAA-1966 prohibits the
Secretary from initiating or permitting a new use of a national
wildlife refuge or expanding, renewing, or extending an existing use of
a national wildlife refuge, unless the Secretary has determined that
the use is a compatible use and not inconsistent with public safety.
The RRA-1962 authorizes the Secretary to administer areas within
the National Wildlife Refuge System for public recreation as an
appropriate incidental or secondary use only to the extent that it is
practicable and not inconsistent with the primary purpose(s) for which
we established the areas. The RRA-1962 requires that any recreational
use of national wildlife refuge lands be compatible with the primary
purposes for which we established the national wildlife refuge and not
inconsistent with other previously-authorized operations.
The Alaska National Interest Lands Conservation Act of 1980
(ANILCA), (16 U.S.C. 140hh-3233), (43 U.S.C. 1602-1784), requires that
we administer national wildlife refuges in Alaska in accordance with
the laws governing the administration of the National Wildlife Refuge
System. Section 304 of the ANILCA adopted the compatibility standard of
the NWRSAA-1966 for Alaska national wildlife refuges.
The ANILCA establishes the same standard of compatibility for
Alaska national wildlife refuges as for other national wildlife refuges
but the NWRSIA-1997 specifically requires that ANILCA take precedence
if any conflict arises between the two laws. Additionally, the NWRSIA-
1997 did not affect the provisions of ANILCA that
[[Page 49062]]
are the primary guidance Refuge Managers must use regarding subsistence
use in Alaska.
The Alaska Native Claims Settlement Act of 1971, Section 22(g),
provides that patents issued to Native village corporations or groups
for selected land within the boundaries of a national wildlife refuge
existing on the December 18, 1971, signing date of the Act will contain
provisions which indicate that the land shall remain subject to laws
and regulations governing the use and development of such national
wildlife refuges. This includes application of the compatibility
standard before uses or development may occur on the land.
Alaska national wildlife refuges established before the passage of
the ANILCA have two sets of purposes. Purposes for pre-ANILCA national
wildlife refuges (in effect on the day before the enactment of the
ANILCA) remain in force and effect, except to the extent that they may
be inconsistent with the ANILCA or the Alaska Native Claims Settlement
Act, in which case the provisions of those Acts control. However, the
original purposes for pre-ANILCA refuges apply only to those portions
of the national wildlife refuge established by the prior executive
order or public land order, and not to those portions of the national
wildlife refuge added by the ANILCA.
The NWRSAA-1966 and the RRA-1962 authorize the Secretary to issue
regulations to carry out the purposes of the Acts and regulate uses.
Required Determinations
Regulatory Planning and Review (E.O. 12866)
This document is a significant rule and has been reviewed by the
Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit or full
economic analysis is not required. This rule is administrative, legal,
technical, and procedural in nature. The regulation established 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%, 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. Total annual willingness to pay for all recreation at
national wildlife refuges was estimated to be $372.5 million in FY 1995
(Banking on Nature: The Economic Benefits to Local Communities of
National Wildlife Refuge Visitation, 1997). We expect the compatibility
determination process implemented in this rule to cause at most a 5%
increase in recreational use system-wide. This does not mean that every
refuge will have the same increase in public use. Only refuges where
increases in hunting, fishing, and non-consumptive visitation are
compatible will we allow the increases. Across the entire Refuge System
we expect an increase in hunting, fishing, and non-consumptive
visitation to amount to no more than a 5% overall increase. If the full
5% 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%. 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. Even the conservative estimate of $21 million
annually is well below the $100 million annual impact required for a
significant regulatory action under Executive Order 12866.
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 will likely 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. There are no grants or other Federal assistance
programs 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 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.
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
[[Page 49063]]
National Wildlife Refuge System Improvement Act of 1997 may result in
more opportunities for wildlife-dependent recreation on national
wildlife refuges. For example, there may be more wildlife observation
opportunities 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 to increase visitor
activity near the national wildlife refuge. To the extent visitors
spend time and money in the area that would not have been spent there
anyway, 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, FY1996 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 which would have
occurred in the community anyway, and so they show the importance of
the activity in the local economy rather than its incremental impact.
Marginally greater recreational opportunities on national wildlife
refuges will have little industry-wide effect.
Many small businesses will benefit from any increased national
wildlife refuge visitation. 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 Regulatory
Planning and Review section above. This rule:
a. Does 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. Does 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. 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. 12612)
As discussed in the Regulatory Planning and Review, and Unfunded
Mandates Act sections above, this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment under Executive Order 12612.
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 for which Office of Management and Budget approval under
the Paperwork Reduction Act (44 U.S.C. 3501) is required.
Section 7 Consultation
We are in the process of reviewing the potential of these
regulations to affect species subject to the Endangered Species Act of
1973 (16 U.S.C. 1531-1543). The findings of that consultation will be
available as part of the administrative record for the final rule.
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 public use 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 as proposed in this document resolve a
variety of issues concerning compatibility of national wildlife refuge
uses. In accordance with 516 DM 2, Appendix 1, we have determined that
this rule is categorically excluded from the NEPA process because it is
limited to ``the issuance and modification of procedures, including
manuals, orders and guidelines of an administrative nature.'' 516 DM 2,
Appendix 1, Sec. 1.4 A. (3) and (9). These proposed regulations qualify
or otherwise define methods which we use for purposes of resource
management.
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. Program Assistant Regional Director--Refuges and Wildlife,
U.S. Fish and Wildlife Service, Eastside Federal Complex, Suite 1692,
911 N.E. 11th Avenue, Portland, Oregon 97232-4181; Telephone (503) 231-
6214.
Region 2--Arizona, New Mexico, Oklahoma and Texas. Program
Assistant Regional Director--Refuges and Wildlife, U.S. Fish and
Wildlife Service, Box 1306, Albuquerque, New Mexico 87103; Telephone
(505) 766-1829.
Region 3--Illinois, Indiana, Iowa, Michigan, Minnesota,
Missouri, Ohio and Wisconsin. Program Assistant Regional Director--
Refuges and Wildlife, U.S. Fish and Wildlife Service, Federal Building,
Fort Snelling, Twin Cities, Minnesota 55111; Telephone (612) 713-5300.
Region 4--Alabama, Arkansas, Florida, Georgia, Kentucky,
Louisiana, Mississippi, North Carolina, Tennessee, South Carolina,
Puerto Rico and the Virgin Islands. Program Assistant Regional
Director--Refuges and
[[Page 49064]]
Wildlife, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Room
324, Atlanta, Georgia 30345; Telephone (404) 679-7152.
Region 5--Connecticut, Delaware, District of Columbia,
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, Virginia and West Virginia.
Program Assistant Regional Director--Refuges and Wildlife, U.S. Fish
and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts
01035-9589; Telephone (413) 253-8550.
Region 6--Colorado, Kansas, Montana, Nebraska, North
Dakota, South Dakota, Utah and Wyoming. Program Assistant Regional
Director--Refuges and Wildlife, U.S. Fish and Wildlife Service, Box
25486, Denver Federal Center, Denver, Colorado 80225; Telephone (303)
236-8145.
Region 7--Alaska. Program Assistant Regional Director--
Refuges and Wildlife, U.S. Fish and Wildlife Service, 1011 E. Tudor
Rd., Anchorage, Alaska 99503; Telephone (907) 786-3357.
Primary Author
J. Kenneth Edwards, Refuge Program Specialist, Division of Refuges,
U.S. Fish and Wildlife Service, is the primary author of this proposed
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 propose to 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. We propose to amend Sec. 25.12 by:
a. Revising the heading;
b. Amending paragraph (a) by revising and placing in alphabetical
order the definitions of ``Coordination area,'' ``National wildlife
refuge, and refuge'' and ``National Wildlife Refuge System, and Refuge
System;'' and
c. Adding the definitions of ``Compatible use,'' ``Compatibility
determination,'' ``Comprehensive Conservation Plan,'' ``Conservation,
and Management,'' ``Director,'' ``Fish, Wildlife, and Fish and
wildlife,'' ``National Wildlife Refuge System Mission, and Refuge
System Mission,'' ``Plant,'' ``Purpose(s) of the refuge,'' ``Refuge
Manager,'' ``Refuge use, and Use of a refuge,'' ``Refuge management
economic activity,'' ``Refuge management activity,'' ``Regional
Director,'' ``Secretary,'' ``Service, and We'' ``Sound professional
judgment,'' ``State, and United States,'' ``Wildlife-dependent
recreational use, and Wildlife-dependent recreation,'' and ``You'' in
alphabetical order to read as follows:
Sec. 25.12 What do the following terms mean?
(a) * * *
Compatible use means a proposed or existing wildlife-dependent
recreational use or any other use of a national wildlife refuge that,
in the sound professional judgment of the Refuge Manager, will not
materially interfere with or detract from the fulfillment of the
National Wildlife Refuge System Mission or the major purposes of the
affected national wildlife refuge.
Compatibility determination means a written determination signed
and dated by the Refuge Manager, signifying that a proposed or existing
use of a national wildlife refuge is either a compatible use or a not
compatible use. The Director delegates authority to make this
determination through the Regional Director, to the Refuge Manager.
Comprehensive Conservation Plan means a document that describes the
desired future conditions of a national wildlife refuge, and provides
long-range guidance and management direction for a Refuge Manager to
accomplish the purposes of the affected national wildlife refuge,
contribute to the National Wildlife Refuge System Mission, and to meet
other relevant 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 (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 as a part of the National
Wildlife Refuge System.
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
external boundaries of the National Wildlife Refuge System but does not
include coordination areas.
National Wildlife Refuge System, and Refuge System mean all lands,
waters, and interests therein administered by, or subject to the
jurisdiction of, the U.S. Fish and Wildlife Service as wildlife
refuges, wildlife ranges, wildlife management areas, waterfowl
production areas, and other areas administered by the U.S. Fish and
Wildlife Service for the protection and conservation of fish and
wildlife, including those that are threatened with extinction.
National Wildlife Refuge System Mission, and Refuge System Mission
mean to 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,
[[Page 49065]]
national wildlife refuge unit, or national wildlife refuge subunit.
Refuge Manager means the person who is directly in charge of a
national wildlife refuge.
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-Service entity.
Refuge management economic activity means any refuge management
activity on a national wildlife refuge which results in generation of
income or in 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. Specifically excluded from
this definition are refuge management activities which generate
commodities not sold for income or revenue and not traded for goods or
services, on or off a national wildlife refuge.
Refuge management activity means an activity conducted by the
Service or a Service-authorized agent to fulfill all purposes or at
least 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,
friends organizations, and volunteers.
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, and We means 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 a Refuge Manager's knowledge
of the particular affected 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, as amended, specifies that these are the
six priority general public uses of the National Wildlife Refuge
System.
* * * * *
You means the public.
3. We propose to revise Sec. 25.21 to read as follows:
Sec. 25.21 When and how do we open and close areas of the National
Wildlife Refuge System to public access and use or continue a use?
(a) Except as provided below, all areas 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. We
may open an area by regulation, individual permit, or public notice, in
accordance with Sec. 25.31 of this subchapter.
(b) We may open an area in the National Wildlife Refuge System 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 Part 25
and Part 26 of 50 CFR. The Refuge Manager may 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.
(c) When we add lands to the National Wildlife Refuge System, the
Refuge Manager will identify, prior to acquisition, withdrawal,
transfer, reclassification, or donation of those lands, existing
wildlife-dependent recreational public uses (if any) determined to be
compatible that we will permit to continue on an interim basis, pending
completion of the Comprehensive Conservation Plan for the national
wildlife refuge. We will make these compatibility determinations in
accordance with procedures in Sec. 26.41 of this subchapter.
(d) In the event of a threat or emergency endangering the health
and safety of the public or property or to protect the resources of the
area, the Refuge Manager may close or curtail refuge uses of all or any
part of an opened area to public access and use in accordance with the
provisions in Sec. 25.31, without advance notice. See 50 CFR 36.42 for
procedures on closing Alaska national wildlife refuges.
(e) We will re-evaluate compatibility determinations for existing
wildlife-dependent recreational uses when conditions under which the
permitted use 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.
(f) Except for uses specifically authorized for a period longer
than 10 years (such as rights-of-way), we will re-evaluate
compatibility determinations for all other existing uses when
conditions under which the permitted use 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 10 years, whichever is earlier.
(g) For uses specifically authorized for a period longer than 10
years (such as rights-of-way), our re-evaluation will examine
compliance with the terms and conditions of the authorization, not the
authorization itself. We will monitor and review the activity to ensure
that the permittee carries out all permit terms and conditions. We will
make a new compatibility determination prior to extending or renewing
such long-term uses at the expiration of the authorization.
4. We propose to amend Sec. 25.44 by:
a. Revising the heading and paragraphs (b) and (c)(1);
b. Removing paragraph (d); and
c. Redesignating paragraph (e) as paragraph (d) to read as follows:
Sec. 25.44 How do we grant permits for easement area uses?
* * * * *
(b) We require permits for use of easement areas administered by us
where proposed activities may affect the property interest acquired by
the United States. Applications for permits will be submitted in
writing to the Regional Director or a designee. We may grant special
use permits to owners of servient estates, or to third parties with the
owner's agreement, by the Regional Director or a designee, upon written
determination that such permitted use is compatible. If we ultimately
determine that the requested use will not affect the United States'
interest, the Regional Director will issue a letter of non-objection.
(c) * * *
[[Page 49066]]
(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. We propose to add Sec. 26.41 to read as follows:
Sec. 26.41 What is the process for determining if a use of a national
wildlife refuge is a compatible use?
The Refuge Manager will not initiate or permit a new use of a
national wildlife refuge or expand, renew, or extend an existing use of
a national wildlife refuge, unless the Refuge Manager has determined
that the use is a compatible use. This section provides guidelines for
making compatibility determinations, and procedures for documenting
compatibility determinations and for periodic review of compatibility
determinations. We will make all compatibility determinations in
writing.
(a) Steps for preparing compatibility determinations. 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 major purposes 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?
(ii) Where would the use be conducted?
(iii) When would the use be conducted?
(iv) How would the use be conducted?;
(7) An analysis of costs for administering and managing each use;
(8) The anticipated impacts of the use on the national wildlife
refuge's major purposes and the National Wildlife Refuge System
Mission;
(9) A logical explanation describing how the proposed use affects
fulfilling the national wildlife refuge's major purposes and the
National Wildlife Refuge System Mission;
(10) The amount of opportunity for public review and comment
provided;
(11) 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 major purposes of
the national wildlife refuge);
(12) Stipulations necessary to ensure compatibility;
(13) The name of the Regional Office Supervisor or designee that
was consulted with and date of consultation prior to approving each
compatibility determination; and
(14) The Refuge Manager's signature and date signed.
(b) Making a use compatible through replacement of lost habitat
values or other compensation. We will not allow making proposed refuge
uses compatible through replacement of lost habitat values or other
compensation. If we cannot make the proposed use compatible through
stipulations we cannot allow the use.
(c) Termination of uses that are not compatible. When we determine
an existing use is not compatible, we will terminate or modify the use
to make it compatible as expeditiously as practicable.
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. We propose to revise Sec. 29.1 to read as follows:
Sec. 29.1 May we allow economic uses on national wildlife refuges?
We may authorize public or private economic use of the natural
resources of any wildlife refuge area, in accordance with 16 U.S.C.
715s, where the use may contribute to the administration of the area.
We may authorize economic use by appropriate permit only when we have
determined the activity on a wildlife refuge area to be compatible.
Persons exercising economic privileges on refuge areas will be subject
to the applicable provisions of this subchapter and of other applicable
laws and regulations governing wildlife refuge areas. 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 wildlife refuge areas.
9. We propose to revise Sec. 29.3 to read as follows:
Sec. 29.3 What are nonprogram uses of national wildlife refuges?
Uses of wildlife refuge areas that make no contribution to the
primary objectives of the refuge or to the objectives of the National
Wildlife Refuge System are nonprogram uses. We may grant permission for
such uses only when we determine they are compatible.
10. We propose to amend Sec. 29.21 by:
a. Revising the heading;
b. Removing the paragraph designations;
c. Revising and placing in alphabetical order the definition of
``Compatible use'';
d. Removing ``Secretary,'' ``Service,'' and ``Regional Director'';
and
e. Placing the remaining definitions in alphabetical order to read
as follows:
Sec. 29.21 What do the following terms mean?
Compatible use means a proposed or existing wildlife-dependent
recreational use or any other use of a national wildlife refuge that,
in the sound professional judgment of the Refuge Manager, will not
materially interfere with or detract from the fulfillment of the
National Wildlife Refuge System Mission or the major purposes of the
affected national wildlife refuge. The term ``inconsistent'' in section
28(b)(1) of the Mineral Leasing Act of 1920, as amended by Pub. L. 93-
153, means a use that is not compatible.
* * * * *
11. We propose to amend Sec. 29.21-7 by removing paragraph (c) and
revising the heading to read as follows:
Sec. 29.21-7 What payment do we require for use and occupancy of
national wildlife refuge lands?
Dated: May 26, 1999.
Donald J. Barry,
Assistant Secretary, Fish, Wildlife and Parks.
[FR Doc. 99-22992 Filed 9-8-99; 8:45 am]
BILLING CODE 4310-55-P
