[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]]

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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__ C[email protected].

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

[[Page 49059]]

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__ C[email protected]. 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