2009-2010 Refuge-Specific Hunting and Sport Fishing Regulations Additions
Federal Register: April 12, 2010 (Volume 75, Number 69)
Rules and Regulations
Page 18413-18427
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr12ap10-11
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service 50 CFR Part 32
Docket No. FWS-R9-NSR-2009-0023
93270-1265-0000-4A
RIN 1018-AW49 2009-2010 Refuge-Specific Hunting and Sport Fishing Regulations-
Additions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: The Fish and Wildlife Service adds two refuges to the list of areas open for hunting and/or sport fishing programs and increases the activities available at eight other refuges for the 2009-2010 season.
One refuge will see a decrease in activities and another refuge will see no net change in activities for the 2009-2010 season.
DATES: This rule is effective April 12, 2010.
FOR FURTHER INFORMATION CONTACT: Leslie A. Marler, (703) 358-2397; Fax
(703) 358-2248.
SUPPLEMENTARY INFORMATION: The National Wildlife Refuge System
Administration Act of 1966 closes national wildlife refuges in all
States except Alaska to all uses until opened. The Secretary of the
Interior (Secretary) may open refuge areas to any use, including hunting and/or sport fishing, upon a determination that such uses are compatible with the purposes of the refuge and National Wildlife Refuge
System (Refuge System or our/we) mission. The action also must be in accordance with provisions of all laws applicable to the areas, developed in coordination with the appropriate State fish and wildlife agency(ies), consistent with the principles of sound fish and wildlife management and administration, and otherwise in the public interest.
These requirements ensure that we maintain the biological integrity, diversity, and environmental health of the Refuge System for the benefit of present and future generations of Americans.
We annually review refuge hunting and sport fishing programs to determine whether to include additional refuges or whether individual refuge regulations governing existing programs need modifications.
Changing environmental conditions, State and Federal regulations, and other factors affecting fish and wildlife populations and habitat may warrant modifications to refuge-specific regulations to ensure the continued compatibility of hunting and sport fishing programs and to ensure that these programs will not materially interfere with or detract from the fulfillment of refuge purposes or the Refuge System's mission.
Provisions governing hunting and sport fishing on refuges are in title 50 of the Code of Federal Regulations in part 32 (50 CFR part 32). We regulate hunting and sport fishing on refuges to:
Ensure compatibility with refuge purpose(s);
Properly manage the fish and wildlife resource(s);
Protect other refuge values;
Ensure refuge visitor safety; and
Provide opportunities for quality fish- and wildlife- dependent recreation.
On many refuges where we decide to allow hunting and sport fishing, our general policy of adopting regulations identical to State hunting and sport fishing regulations is adequate in meeting these objectives.
On other refuges, we must supplement State regulations with more- restrictive Federal regulations to ensure that we meet our management responsibilities, as outlined in the ``Statutory Authority'' section.
We issue refuge-specific hunting and sport fishing regulations when we open wildlife refuges to migratory game bird hunting, upland game hunting, big game hunting, or sport fishing. These regulations list the wildlife species that you may hunt or fish, seasons, bag or creel
(container for carrying fish) limits, methods of hunting or sport fishing, descriptions of areas open to hunting or sport fishing, and other provisions as appropriate. You may find previously issued refuge- specific regulations for hunting and sport fishing in 50 CFR part 32.
In this rulemaking, we are also standardizing and clarifying the language of existing regulations.
Plain Language Mandate
In this rule we made some of the revisions to the individual refuge units to comply with a Presidential mandate to use plain language in regulations; as such, these particular revisions do not modify the substance of the previous regulations. These types of changes include using ``you'' to refer to the reader and ``we'' to refer to the Refuge
System, using the word ``allow'' instead of ``permit'' when we do not require the use of a permit for an activity, and using active voice
(i.e., ``We restrict entry into the refuge'' vs. ``Entry into the refuge is restricted'').
Statutory Authority
The National Wildlife Refuge System Administration Act of 1966 (16
U.S.C. 668dd-668ee, as amended by the National Wildlife Refuge System
Improvement Act of 1997 [Improvement Act]) (Administration Act), and the Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) (Recreation
Act) govern the administration and public use of refuges.
Amendments enacted by the Improvement Act, which built upon the
Administration Act in a manner that provides an ``organic act'' for the
Refuge System, are similar to those that exist for other public Federal lands. The Improvement Act serves to ensure that we effectively manage the Refuge System as a national network of lands, waters, and interests for the protection and conservation of our Nation's wildlife resources.
The Administration Act states first and foremost that we focus our
Refuge System mission on conservation of fish, wildlife, and plant resources and their habitats. The Improvement Act requires the
Secretary, before allowing a new use of a refuge, or before expanding, renewing, or extending an existing use of a refuge, to determine that the use is compatible with the purpose for which the refuge was established and the mission of the Refuge System. The Improvement Act established as the policy of the United States that wildlife-dependent recreation, when compatible, is a legitimate and appropriate public use of the Refuge System, through which the American public can develop an appreciation for fish and wildlife. The Improvement Act established six wildlife-dependent recreational uses as the priority general public uses of the Refuge System. These uses are: hunting, fishing, wildlife observation and photography, and environmental education and interpretation.
The Recreation Act authorizes the Secretary to administer areas within the Refuge System for public recreation as an appropriate incidental or secondary use only to the extent that doing so is practicable and not inconsistent with the primary purpose(s) for which
Congress and the Service established the areas. The Recreation Act requires that any recreational use of refuge lands be compatible with the primary purpose(s) for which we established the refuge and
Page 18414
not inconsistent with other previously authorized operations.
The Administration Act and Recreation Act also authorize the
Secretary to issue regulations to carry out the purposes of the Acts and regulate uses.
We develop specific management plans for each refuge prior to opening it to hunting or sport fishing. In many cases, we develop refuge-specific regulations to ensure the compatibility of the programs with the purpose(s) for which we established the refuge and the Refuge
System mission. We ensure initial compliance with the Administration
Act and the Recreation Act for hunting and sport fishing on newly acquired refuges through an interim determination of compatibility made at or near the time of acquisition. These regulations ensure that we make the determinations required by these acts prior to adding refuges to the lists of areas open to hunting and sport fishing in 50 CFR part 32. We ensure continued compliance by the development of comprehensive conservation plans, specific plans, and by annual review of hunting and sport fishing programs and regulations.
Response to Comments Received
In the December 29, 2009, Federal Register [74 FR 68968], we published a proposed rulemaking identifying changes pertaining to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing to existing refuge-specific language on certain refuges for the 2009-2010 season. We received five comments (three from the same commenter) on the proposed rule during a 30-day comment period.
One commenter supported the decision to open Turnbull National Wildlife
Refuge (NWR) in Washington for hunting, and another commenter was generally supportive of all proposed openings with a concern raised about the proposed cut in weekend waterfowl hunting opportunities at
Mathews Brake NWR in Mississippi. That concern is addressed below in
Comment/Response 4.
Comment 1: The commenter believes hunting is incompatible with the public interest, that it is discriminatory in nature and disenfranchises millions of residents in the United States.
Response 1: We disagree. The 1997 National Wildlife Refuge System
Administration Act stipulates that hunting (along with fishing, wildlife observation and photography, and environmental education and interpretation), if found to be compatible, is a legitimate and priority general public use of a refuge that should be facilitated. The
Administration Act authorizes the Secretary to allow use of any refuge area for any purpose as long as those uses are compatible. In the case of each refuge opening/expansion in this rule, the refuge managers went through the compatibility process (which allows for public comment), in addition to complying with the National Environmental Policy Act (42
U.S.C. 4321 et seq.) [NEPA] (which also allows for public comment) to make the determination before opening or expanding their refuge to allow for hunting. We made no change to this rulemaking as a result of this comment.
Comment 2: The same commenter asked for an extension of time to further comment on the proposed rule and felt that we discriminate by not allowing email or facsimile comments on the proposed rule.
Response 2: We disagree that the comment period is insufficient.
The process of opening refuges is done in stages, with the fundamental work being done on the ground at the refuge and in the community where the program is administered. In these stages, the public is provided other opportunities to comment, for example, on the comprehensive conservation plans, the compatibility determinations, and the hunt plans and accompanying NEPA documents. The final stage is when we publish the proposed rule in the Federal Register for additional comment, commonly providing a 30-day comment period.
We make every attempt to collect all of the proposals from the refuges nationwide and process them expeditiously to maximize the time available for public review. We believe that a 30-day comment period, through the broader publication following the earlier public involvement, gives the public sufficient time to comment and allows us to establish hunting and fishing programs in time for the upcoming seasons. Many of these rules also relieve restrictions and allow the public to participate in wildlife-dependent recreational activities on a number of refuges. Even after issuance of a final rule, we accept comments, suggestions, and concerns for consideration for any appropriate subsequent rulemaking.
As to no longer accepting facsimile or email comments, this change occurred on December 10, 2007, when the Service became a participating agency in the Federal Government's eRulemaking program, including the
Federal Docket Management System (FDMS). FDMS is the agency side of
Regulations.gov. Rulemaking documents are directly loaded from the
Federal Register into Regulations.gov for public review. FDMS enables agencies, including the Service, to manage their administrative records
(dockets) electronically and to post public comments on
Regulations.gov. At the time that the Service began participating in
FDMS, the Service determined that, for rulemaking documents, we use only the following methods for the public to comment: (1) Online through Regulations.gov; (2) by U.S. mail; or (3) by hand delivery.
This helps ensure efficiency in allowing public review of our dockets.
Comment 3: The same commenter wondered if we are ``conserving'' fish, why are most species extinct at present. He or she continued,
``If you are conserving birds, why are 40 [bald] eagles in an entire state considered adequate for ecological purposes?'' The commenter lives on the east coast, so our assumption is that he or she is referring to bald eagles.
Response 3: This rule opened no new refuges to fishing; four of the refuges remain closed to fishing and the remaining eight refuges were already open to fishing. We allow no fishing for species that are listed as either threatened or endangered. We comply with section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) when developing comprehensive conservation plans and step-down management plans and have consulted with Ecological Services offices for each of the affected refuge openings. In no case was there a finding that hunting activities would affect threatened or endangered species.
The Service removed bald eagles from the Federal List of Endangered and Threatened Wildlife in the lower 48 States on August 8, 2007. We based our determination on a thorough review of all available information, which indicated that the threats to this species had been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the
Endangered Species Act. According to the July 9, 2007, final rule published in the Federal Register (72 FR 37346), we went from 487 breeding pairs in 1963 to 9,789 breeding pairs in 2007. The recovery of the bald eagle is due in part to the reduction in levels of persistent organochlorine pesticides (such as DDT) occurring in the environment and habitat protection and management actions. The protections provided to the bald eagle under the Bald and Golden Eagle Protection Act (16
U.S.C. 668-668c) and the Migratory Bird Treaty Act
Page 18415
(16 U.S.C. 703-712) continue to remain in place after delisting of the species.
Comment 4: A commenter expressed concern over the proposed reduction of total migratory bird hunting days (by 200 in weekend waterfowl hunting opportunities) at Mathews Brake NWR in Mississippi.
The commenter encourages us and the refuge administrators to work with the local hunting community to find ways to reopen those days and to provide enhanced weekend hunting opportunities.
Response 4: Mathews Brake has long had the reputation of being a consistently good waterfowl hunting area, and it annually attracts hunters from many different States. Good hunting sites are very limited, producing a fierce competition among hunters, especially on opening day and weekends. As an example, 2008 opening day of waterfowl season had a total of 84 boats trying to vie for the places to hunt within the limited area. As described in Objective 6B of the 2006
Comprehensive Conservation Plan for the Theodore Roosevelt National
Wildlife Refuges Complex, of which Mathews Brake is part, one of our objectives for this hunt program is to ``provide hunters with a high- quality, safe hunting experience on refuge lands...'' Limiting the number of hunting parties to 20, with one boat per party, alleviates many of the safety issues that were occurring (such as night time boat races to the best spots), yet still allows a quality hunting experience for those chosen through our draw system, and helps limit disturbance to the wildlife resource values of Mathews Brake.
We do allow up to four hunters per party, thus providing weekend and opening day hunting opportunities on Mathews Brake for up to 80 hunters per day. We are also aware that there will be hunters applying for the Mathews Brake NWR weekend/opening day waterfowl hunts that will not be selected. We provide unlimited weekend waterfowl hunting on three other national wildlife refuges within the Theodore Roosevelt NWR
Complex, all with what we consider good hunting. For example, Morgan
Brake NWR, located approximately 10 miles south from Mathews Brake, has 2,966 acres open; Hillside NWR, 15 miles south from Mathews Brake, has 9,723 acres available for hunting; and Panther Swamp, located 40 miles south, has 10,731 acres open for weekend waterfowl hunting. North of
Mathews Brake we allow unlimited weekend waterfowl hunting at Dahomey,
Tallahatchie, and Coldwater National Wildlife Refuges. There should be no problem for individuals not selected to hunt at Mathews Brake to find suitable waterfowl hunting on nearby refuges. We made no change to this regulation as a result of this comment.
Effective Date
This rule is effective upon publication in the Federal Register. We have determined that any further delay in implementing these refuge- specific hunting and sport fishing regulations would not be in the public interest, in that a delay would hinder the effective planning and administration of the hunting and fishing programs. We provided a 30-day public comment period for the December 29, 2009, proposed rule.
An additional delay would jeopardize holding the hunting and/or fishing programs this year or shorten their duration and thereby lessen the management effectiveness of this regulation. This rule does not impact the public generally in terms of requiring lead time for compliance.
Rather it relieves restrictions in that it allows activities on refuges that we would otherwise prohibit. Therefore, we find good cause under 5
U.S.C. 553(d)(3) to make this rule effective upon date of publication.
Amendments to Existing Regulations
This document codifies in the Code of Federal Regulations all of the Service's hunting and/or sport fishing regulations that are applicable at Refuge System units previously opened to hunting and/or sport fishing. We are doing this to better inform the general public of the regulations at each refuge, to increase understanding and compliance with these regulations, and to make enforcement of these regulations more efficient. In addition to now finding these regulations in 50 CFR part 32, visitors to our refuges will usually find them reiterated in literature distributed by each refuge or posted on signs.
We have cross-referenced a number of existing regulations in 50 CFR parts 26, 27, and 32 to assist hunting and sport fishing visitors with understanding safety and other legal requirements on refuges. This redundancy is deliberate, with the intention of improving safety and compliance in our hunting and sport fishing programs.
Table 1 - Changes for 2009-2010 Hunting/Fishing Season
Migratory Bird
National Wildlife Refuge
State
Hunting
Upland Game Hunting
Big Game Hunting
Fishing
Hillside
MS
Previously published
Previously published B (turkey)
Previously published
Holt Collier
MS
Closed
Previously published C
Closed
Mathews Brake
MS
F
Previously published Previously published Previously published
Morgan Brake
MS
Previously published
Previously published A/B (hog)
Previously published
Panther Swamp
MS
D
Previously published E
Previously published
Yazoo
MS
C
Previously published Previously published Closed
Nisqually
WA
G
Closed
Closed
Previously published
Turnbull
WA
H
Closed
H (elk)
Closed
Waccamaw
SC
A
A
A
Previously published
Lake Andes
SD
H
H
H
Closed
Red River
LA
A
A
A/B (hog, turkey)
Previously published
Page 18416
San Luis
CA
A
Previously published Closed
Previously published
A= Refuge already open to activity but added new land which increased activity
B= Refuge already open to activity but added new species to hunt
C= Refuge already opened to activity but expanded the activity through increased type of hunt (e.g., youth waterfowl)/different weaponry now allowed
D= Refuge already opened to activity, added new land but adjusted hunt days, so no net increase
E= No increase in hunt days; rather a redistribution of hunt area/days to make for safer, quality hunt
F= Decrease in hunter days due to limiting of weekend waterfowl hunters
G= New activity on a refuge previously opened to other activities
H= New refuge opened, new activity
In the State of Mississippi, we revised the public hunting plan and make the following changes for the Theodore Roosevelt National Wildlife
Refuge Complex (comprised of six refuges: Hillside, Holt Collier,
Mathews Brake, Morgan Brake, Panther Swamp, and Yazoo NWRs):
Revision of the hunt plan for Holt Collier NWR (which is currently covered by the Yazoo NWR hunt plan) reflecting different weaponry and changing 14 days of the hunt from archery to archery/ muzzleloader for big game hunting;
For Panther Swamp NWR: addition of deer hunting using muzzleloaders and modern weapons and waterfowl hunting on 2,900 acres of the Carter Unit; on the recently acquired 761-acre tract, expansion of deer and feral hog hunting (with no corresponding increase in hunters); and a redistribution/reduction of waterfowl hunting areas/ hunt days throughout the refuge, including the Carter Unit and recently acquired 761-acre tract;
Addition of turkey hunting on Hillside NWR;
Addition of youth waterfowl hunting allowed on Yazoo NWR;
Limited weekend waterfowl hunt participation at Mathews
Brake NWR, decreasing the number of hunters; and
Increase in deer/feral hog hunting on 366 acres at Morgan
Brake NWR.
On Waccamaw NWR in South Carolina we added six new refuge parcels and with this rule increase all allowable hunting activities on 1,905 acres and feral hog hunting on 1,200 acres. On Nisqually NWR in
Washington we have added 191 acres of tidal flats that we open to migratory bird hunting. On Red River NWR in Louisiana we have added approximately 6,000 acres of land that we open to all three hunting activities, and we add feral hog and turkey hunting. On San Luis NWR in
California we have added approximately 2,000 acres of land (East Bear
Creek Unit) that we open for migratory game bird hunting.
Fish Advisory
For health reasons, anglers should review and follow State-issued consumption advisories before enjoying recreational sport fishing opportunities on Service-managed waters. You can find information about current fish consumption advisories on the internet at: http:// www.epa.gov/ost/fish/.
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination on the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, use fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5
U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.
This rule adds two national wildlife refuges to the list of refuges open to hunting, increases hunting activities on eight national wildlife refuges, decreases activities at one national wildlife refuge and has a net change of zero at one national wildlife refuge. As a result, visitor use for wildlife-dependent recreation on these national wildlife refuges will change. If the refuges establishing new hunting programs were a pure addition to the current supply of such activities, it would mean an estimated increase of 3,675 user days of hunting
(Table 2). Because the participation trend is flat in hunting activities since 1991, this increase in supply will most likely be offset by other sites losing participants. Therefore, this is likely to be a substitute site for the activity and not necessarily an increase in participation rates for the activity.
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Table 2. Estimated Change in Hunting Opportunities in 2009/2010
Additional
Additional
Refuge
Hunting
Hunting
Days
Expenditures
Hillside
90
$9,635
Holt Collier
150
$16,059
Mathews Brake
-200
($21,412)
Morgan Brake
25
$2,677
Panther Swamp
0
0
Yazoo
100
$10,706
Nisqually
700
$74,942
Turnbull
95
$10,171
Waccamaw
75
$8,030
Lake Andes
180
$19,271
Red River
1,600
$171,297
San Luis
860
$92,072
Total
3,675
$393,448
To the extent visitors spend time and money in the area of the refuge that they would not have spent there anyway, they contribute new income to the regional economy and benefit local businesses. Due to the unavailability of site-specific expenditure data, we use the national estimates from the 2006 National Survey of Fishing, Hunting, and
Wildlife Associated Recreation to identify expenditures for food and lodging, transportation, and other incidental expenses. Using the average expenditures for these categories with the maximum expected additional participation of the Refuge System yields approximately
$393,000 in hunting-related expenditures (Table 2). By having ripple effects throughout the economy, these direct expenditures are only part of the economic impact of waterfowl hunting. Using a national impact multiplier for hunting activities (2.67) derived from the report
``Economic Importance of Hunting in America'' yields a total economic impact of approximately $1.1 million (2008 dollars) (Southwick
Associates, Inc., 2007). Using a local impact multiplier would yield more accurate and smaller results. However, we employed the national impact multiplier due to the difficulty in developing local multipliers for each specific region.
Since we know that most of the fishing and hunting occurs within 100 miles of a participant's residence, then it is unlikely that most of this spending would be ``new'' money coming into a local economy; therefore, this spending would be offset with a decrease in some other sector of the local economy. The net gain to the local economies would be no more than $1.1 million, and most likely considerably less. Since 80 percent of the participants travel less than 100 miles to engage in hunting and fishing activities, their spending patterns would not add new money into the local economy and, therefore, the real impact would be on the order of $210,000 annually.
Small businesses within the retail trade industry (such as hotels, gas stations, taxidermy shops, bait and tackle shops, etc.) may be impacted from some increased or decreased refuge visitation. A large percentage of these retail trade establishments in the local communities around national wildlife refuges qualify as small businesses (Table 3). We expect that the incremental recreational changes will be scattered, and so we do not expect that the rule will have a significant economic effect on a substantial number of small entities in any region or nationally. As noted previously, we expect approximately $210,000 to be spent in total in the refuges' local economies. The maximum increase ($1.1 million if all spending were new money) at most would be less than 1 percent for local retail trade spending.
Table 3. Comparative Expenditures for Retail Trade Associated with Additional Refuge Visitation for 2009/2010
(thousands, 2008 dollars)
Estimated
Retail Trade
Maximum
Establ.
Refuge/County(ies)
in 2002
Addition Addition as Establishments in With
