[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7345-7352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02076]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 29
[Docket No. FWS-HQ-NWRS-2022-0106; FXRS12610900000-212-FF09R20000]
RIN 1018-BG78
National Wildlife Refuge System; Biological Integrity, Diversity,
and Environmental Health
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; proposed policy updates.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose new
regulations to ensure that the biological integrity, diversity, and
environmental health (BIDEH) of the National Wildlife Refuge System
(Refuge System) are maintained, and where appropriate, restored and
enhanced, in accordance with the National Wildlife Refuge System
Improvement Act of 1997. In addition, the Service is proposing updates
to the existing BIDEH policy, which will be available for public
comment concurrently with the proposed regulations in this docket.
These proposed regulatory and policy revisions would support
conservation throughout the Refuge System in response to both
longstanding and contemporary conservation challenges, including the
universal and profound effects of climate change on refuge species and
ecosystems. Together, these proposals would uphold BIDEH across the
Refuge System by providing refuge managers with a consistent approach
for evaluating and implementing management actions to protect
vulnerable species, restore and connect habitats, promote natural
processes, sustain vital ecological functions, increase resilience, and
adapt to climate change.
DATES: We will accept comments on the proposed rule and proposed
revisions to the Service Manual chapter at 601 FW 3 that are received
or postmarked on or before March 4, 2024.
ADDRESSES:
Document availability: This proposed rule and the draft Service
Manual chapter 601 FW 3 are available at the Federal eRulemaking
Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-
NWRS-2022-0106, which is the docket number for this rulemaking. Then,
click on the Search button. To access the Service Manual chapter, go to
the tab for Supporting & Related Material.
Comment submission: You may submit comments on this proposed rule
or the proposed revisions to 601 FW 3 by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-HQ-NWRS-2022-
0106, which is the docket number for this rulemaking. Then, click on
the Search button. On the resulting screen, find the correct document
and submit a comment by clicking on ``Comment.''
By hard copy: Submit by U.S. mail or hand delivery to:
Public Comments Processing, Attn: FWS-HQ-NWRS-2022-0106; U.S. Fish and
Wildlife Service; 5275 Leesburg Pike, MS: PRB (JAO/3W); Falls Church,
VA 22041-3803.
We will not accept email or faxes. We will post all comments on
https://www.regulations.gov. This generally means that we will post any
personal information you provide us (see Request for Comments, below,
for more information).
FOR FURTHER INFORMATION CONTACT: Katherine Harrigan, (703) 358-2440,
[email protected]. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
In compliance with the Providing Accountability Through
Transparency Act of 2023, please see docket FWS-HQ-NWRS-2022-0106 on
https://www.regulations.gov for a document that summarizes this
proposed rule.
SUPPLEMENTARY INFORMATION:
Background
The National Wildlife Refuge System is the only network of Federal
lands and waters in the United States dedicated to fish and wildlife
conservation and, at more than 850 million acres, the largest system of
its kind in the world. The National Wildlife Refuge System
Administration Act of 1966 (Administration Act; 16 U.S.C. 668dd-668ee),
as amended by the National Wildlife Refuge System Improvement Act of
1997 (Improvement Act; Pub. L. 105-57), is the primary statutory
authority under which the Secretary of the Interior, acting through the
Service, administers the Refuge System. The Alaska National Interest
Lands Conservation Act of 1980 (16 U.S.C. 3111-3126), the Wilderness
Act of 1964
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(16 U.S.C. 1131-1136), and various other mandates also provide
direction and authority for refuge management. The implementing
regulations for Refuge System mandates are found in title 50 of the
Code of Federal Regulations (CFR) at subchapter C.
The Improvement Act established the mission of the Refuge System to
administer a national network of lands and waters for the conservation,
management, and where appropriate, restoration of fish, wildlife, and
plant resources and their habitats within the United States for the
benefit of present and future generations of Americans. (16 U.S.C.
668dd(a)(2)). It set forth policy direction, management standards, and
stewardship requirements for administering the more than 560 national
wildlife refuges in the Refuge System, prioritizing conservation while
ensuring public access to compatible, wildlife-dependent recreational
opportunities and ensuring effective coordination with adjacent
landowners and State fish and wildlife agencies. The law states that
each refuge must be managed to fulfill both the Refuge System mission
and the specific purposes for which that refuge was established. It
additionally requires that, in administering the Refuge System, the
Secretary shall ensure that the biological integrity, diversity, and
environmental health of the Refuge System are maintained for the
benefit of present and future generations of Americans. (16 U.S.C.
668dd(a)(4)(B)).
The Improvement Act is recognized as a visionary legislative
charter for managing a system of wildlife reserves in part due to its
mandate to ensure BIDEH. The terms comprising the BIDEH mandate are
grounded in conservation biology and demonstrate congressional intent
to conserve Refuge System fish, wildlife, plants, and habitats in
accordance with the latest scientific understanding. This directive for
a comprehensive, science-based approach to refuge management is
critical to ensuring that imperiled species and diverse wildlife
populations in North America are secure and thriving, sustained by a
network of healthy lands and waters.
Need for New Regulations and Updated Policy
In 1998, the Service announced our intent to issue policy and
regulations to administer the Improvement Act (63 FR 3583, January 23,
1998). In 2000, we published a draft policy on maintaining the
ecological integrity of the Refuge System (65 FR 61356, October 17,
2000). After considering the comments received on the draft policy, the
Service issued its BIDEH policy in 2001 (66 FR 3810, January 16, 2001).
Included in the Service Manual at 601 FW 3, the policy provides
internal guidance for agency implementation of the statutory
requirements.
At the time the Service adopted the BIDEH policy, we did not
promulgate BIDEH regulations as authorized in the Improvement Act. (See
16 U.S.C. 668dd(b)(5)). The Service did not anticipate the extent of
climate change impacts on refuge species and habitats or the need to
clarify in regulations our interpretation of and authority to implement
the BIDEH mandate. However, in the nearly 25 years since enactment of
the Improvement Act, refuges have begun to experience the effects of
climate change while continuing to contend with the myriad of other
anthropogenic stressors affecting fish, wildlife, plants, and their
habitats. Climate change is transforming historical species composition
and ecological function of habitats, creating new challenges to
traditional wildlife management strategies that were based on stable,
stationary baseline conditions. As the Refuge System becomes
increasingly vital to addressing the dual threats of biodiversity loss
and climate change, the Service recognizes the need to codify both
existing and new practices for maintaining BIDEH to assist refuges in
responding to these contemporary conservation challenges. Therefore,
the Service has identified the need to propose new BIDEH regulations
and updates to the existing BIDEH policy to accomplish these goals.
The purpose of this proposed rule and policy revision is to clarify
the Service's authority to maintain the biological integrity,
diversity, and environmental health of the Refuge System; ensure
consistency in evaluating refuge management activities that affect
BIDEH; and provide transparency in how we implement one of the most
fundamental mandates in the laws governing the Refuge System. The
proposed rule would codify longstanding refuge management principles
and further empower refuge managers to uphold the Refuge System's
conservation mission and achieve refuge purposes in the face of complex
threats to wildlife and their habitat. The proposed policy revision
would modernize the BIDEH policy and support the new regulations by
providing further guidance for refuge managers to ensure the BIDEH of
the Refuge System.
The Service currently operates and has always operated in
accordance with the same Refuge System-wide principles for maintaining
BIDEH represented in these proposed regulations and policy updates.
However, the Service has determined that this proposed rule and policy
revision is warranted to clarify Refuge System policies and practices;
better prepare refuges to confront future impacts from climate change
and other anthropogenic change; and provide the opportunity for public
input on the Service's interpretation of the Improvement Act's BIDEH
mandate, including its application in the context of predator control,
conservation translocations, genetically engineered organisms, invasive
species, pesticide use, agricultural practices, and mosquito control.
Proposed Additions to Existing Regulations
This proposed rule would amend the Refuge System regulations at 50
CFR subchapter C, part 29 (Land Use Management), subpart A (General
Rules). The proposed regulatory changes would not modify any existing
regulations but would add regulations regarding BIDEH at a new Sec.
29.3.
Consistent with the Administration Act as amended by the
Improvement Act, the Service is proposing regulations to ensure that
the biological integrity, diversity, and environmental health of the
Refuge System are maintained and, where necessary and appropriate,
restored and enhanced. As shown in the rule portion of this document,
the proposed regulations set forth an overarching statement in
paragraph (a) describing what it means for the Service to ensure BIDEH;
definitions for biological integrity, diversity, environmental health,
and other key regulatory terms in paragraph (b); and overall directives
for ensuring BIDEH on refuges in paragraph (c). Together these proposed
regulations would provide a consistent framework within which refuge
managers would consider potential management actions that may affect
BIDEH. In addition, in paragraph (d), the proposed regulations also
provide more specific direction for certain management activities that
the Service has identified as having a particular propensity to affect
BIDEH.
Notably, the proposed regulatory standard repeated throughout the
regulations--requiring refuge managers to consider how management
actions are necessary to meet statutory requirements, fulfill refuge
purposes, and ensure BIDEH--flows directly from the Improvement Act. In
the statute's requirements for administering the Refuge System,
Congress elevated ensuring the maintenance of BIDEH to a similar level
of importance as ensuring that the Refuge System mission and
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refuge purposes are carried out, challenging the Service to implement
these integral directives together to provide the greatest conservation
benefits for fish and wildlife. (See 16 U.S.C. 668dd(a)(4)). The
content of the proposed regulations and policy revision is further
described below.
Proposed BIDEH Regulations and Accompanying Policy Updates
The Service is concurrently proposing updates to the BIDEH policy,
601 FW 3, which accord with and provide additional internal guidance
for implementing the proposed regulations. We have decided to provide
these documents for public comment concurrently because the proposed
policy revision supplies further explanation for the application of the
proposed regulations and therefore provides additional context for
reviewing the proposed regulations.
Ensure Biological Integrity, Diversity, and Environmental Health
In Sec. 29.3(a), the Service is proposing an overarching statement
in support of the Refuge System's conservation mission defining what it
means to ensure BIDEH on refuges, which is a concept integrated
throughout the proposed BIDEH policy revision. The regulatory statement
would promote management of the Refuge System as an interconnected
network of lands and waters with functioning ecological processes to
maintain the composition, activity, and resilience of the Refuge System
over time. This concept means recognizing the Refuge System as an
expansive complex of plant communities, habitats, and ecosystems
representative of variable conditions and supporting a diversity of
fish and wildlife, including viable populations of rare and imperiled
species. This proposed regulation would codify the Service's continued
commitment to managing refuge ecosystems holistically as components of
larger landscapes and seascapes and supporting natural processes to
meet our conservation goals, while also acknowledging that climate
change and other anthropogenic change can require intervention to carry
out the Refuge System mission and achieve refuge purposes. This
commitment and acknowledgement are further distilled in the proposed
policy updates.
The proposed regulatory statement includes a legal standard for
managing refuges that would apply to each of the subsequent management
directives and activities in the proposed rule when the Service refers
to an action as being necessary to ensure BIDEH. This proposed legal
standard would instruct refuge managers to use their sound professional
judgment, informed by the best available scientific information, to
ensure that management actions benefit wildlife conservation by
contributing to, and not diminishing, BIDEH. The Service uses the term
``sound professional judgment'' as defined in the Improvement Act and
existing Refuge System regulations, directing refuge managers to make
their finding, determination, or decision to conduct an activity
consistent with principles of sound fish and wildlife management and
available science and resources, as well as their field experience and
knowledge of the particular refuge's resources. This proposed
requirement would foster defensible science-based management decisions,
strengthen management actions that support ecological integrity,
bolster decision making that avoids putting BIDEH at risk, and help
prevent further degradation of environmental conditions on refuges. The
proposed updates to the BIDEH policy would incorporate this legal
standard throughout the policy revision as well.
Definitions
In both the new regulations and policy revision, the Service is
proposing updated definitions for biological integrity, diversity, and
environmental health based on definitions used in the Service's
existing BIDEH policy, 601 FW 3, that were vetted through public notice
and comment in 2000 and 2001 (66 FR 3810, January 16, 2001). The
Service is proposing to revise these definitions to acknowledge that
historical conditions may need to serve as a reference point, rather
than an end goal, for managing refuges where climate change and other
anthropogenic change are significantly altering ecosystems. This
proposed language would untether current and future management actions
from sustaining historical conditions that may no longer be possible on
many refuges, while continuing to recognize the value of a contextual
historical baseline for developing management goals. The Service also
proposes to update the definitions by explicitly recognizing the
impacts of climate change and other anthropogenic change on refuge
ecosystems, which is critical to understanding the three BIDEH terms in
their proper context, both now and in the future.
The Service is also including proposed definitions for other terms
helpful to understanding the proposed regulations and policy. These
terms all have established meanings either in wildlife biology, in
existing Service policy, in other Federal law and policy, or in some
combination of these. The Service has not departed from the accepted
meanings in crafting these regulatory definitions, but we did find it
necessary in the interest of greater clarity to tailor them to the
BIDEH context. The proposed updates to the BIDEH policy also include
some additional proposed definitions that would provide further context
for the content expanding on the proposed regulations in the policy
itself.
Management Directives for Ensuring Biological Integrity, Diversity, and
Environmental Health
Proposed Sec. 29.3(c) would include Refuge System-wide directives
for maintaining BIDEH in refuge management. These directives--
concerning universal concepts of climate, habitat, species, water,
soil, and air--would create a framework within which refuge managers
can determine and implement management activities. These fundamental
directives are common to all refuges and would provide basic sideboards
to guide management decisions consistent with other applicable law,
regulation, and policy. They are central to the Service's ability to
meet our statutory obligations and policy goals under the Improvement
Act and are specifically relevant to fulfilling refuge purposes and
ensuring BIDEH. The Service proposes further guidance for these
management directives in section 3.10 of the proposed BIDEH policy
accompanying these proposed regulations.
In the proposed regulation at paragraph (c)(1) and associated
policy updates, the Service acknowledges that climate change and other
anthropogenic change are affecting refuge fish, wildlife, plants, and
habitats. The proposed language would direct refuge managers to address
these threats through adaptation and mitigation strategies as necessary
to meet statutory requirements, fulfill refuge purposes, and ensure
BIDEH. This proposed regulation and accompanying policy revision
recognize that climate change is a major driver in species decline and
biodiversity loss, while ecosystem conservation can serve an essential
role in both climate change mitigation and adaptation, as well as
species survival and recovery. They would therefore allow refuge
managers flexibility to implement a combination of responses to address
climate change impacts and other anthropogenic stressors, providing
discretion for managers to choose the most appropriate mitigation and
adaptation strategies on a particular
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refuge, so long as they meet the proposed regulatory standard.
The proposed regulation at paragraph (c)(2) and associated policy
updates would prioritize deference to natural processes and support
ecological connectivity as a means of achieving refuge habitat
objectives and landscape planning goals. However, when natural
processes are insufficient to meet refuge habitat objectives, the
proposed language would direct managers to intervene with science-based
management techniques that mimic natural processes in accordance with
the proposed regulatory standard. Examples of such management
techniques are provided in the accompanying policy. The proposed
regulation and associated policy updates would also instruct managers
to use such techniques and encourage establishment of wildlife
corridors to facilitate adaptation to climate change and other
stressors.
The proposed regulation at paragraph (c)(3) and associated policy
updates would similarly codify the Service's ability to supplement
natural processes to meet fish and wildlife population objectives,
sustain ecosystems, and restore or recover imperiled species on refuges
when habitat conditions and natural processes are insufficient. It
would work in tandem with the regulation under proposed paragraph
(c)(2) to prioritize deference to natural processes as the default for
determining sustainable populations, while also providing flexibility
to take actions to conserve and manage species when necessary to meet
statutory requirements, fulfill refuge purposes, and ensure BIDEH. The
associated policy updates provide examples of such supplemental
management actions and guidance for maintaining native populations.
The regulation regarding refuge water rights at proposed paragraph
(c)(4) stems directly from Improvement Act mandates, as reiterated in
the associated policy updates. The proposed regulation and policy would
incorporate these legal requirements, directing the Service to maintain
and exercise refuge water rights in accordance with local, State, and
Federal laws and to acquire, transfer, or lease water rights in
accordance with the proposed regulatory standard. The proposed policy
updates would provide substantive guidance for refuge managers to
follow to uphold refuge water rights and would further empower them to
pursue and secure critical water assets to support the myriad of
migratory birds, fish, and other wildlife that rely on refuge habitats.
Finally, the proposed regulation at paragraph (c)(5) and associated
policy updates would direct refuge managers to promote and maintain
soil health and air quality as other abiotic components vital for
sustaining and restoring refuge habitats in addition to water quantity
and quality. The regulation would instruct the Service to conserve and
manage these essential resources within our jurisdiction in accordance
with the regulatory standard and address threats to them through
appropriate management actions. The proposed policy updates provide
additional guidance to explain how refuge managers would maintain these
foundational resources to support healthy ecosystems and ensure the
BIDEH of the Refuge System.
Management Activities and Uses for Ensuring Biological Integrity,
Diversity, and Environmental Health
The regulations in proposed Sec. 29.3(d) would guide specific
management activities and uses that can especially influence BIDEH,
including predator control, conservation translocations, use of
genetically engineered organisms, invasive species management,
pesticide use, agricultural uses, and mosquito control. These proposed
regulations are not intended to cover the range of management practices
conducted on refuges that may affect BIDEH. Rather, the Service
carefully selected these topics to codify and clarify our existing
policies regarding these management activities and uses, improve our
ability to respond to climate change and other anthropogenic factors,
and empower refuge managers to consistently analyze and apply these
tools--or refrain from applying them--as appropriate, to better support
BIDEH. The Service proposes further guidance for these management
activities and uses in section 3.13 of the proposed BIDEH policy
accompanying these proposed regulations.
The management activities and uses included in these proposed
regulations and associated policy updates would be implemented on
Refuge System habitats in conformance with the overall management
directives in proposed Sec. 29.3(c) and section 3.10 of the policy.
This would mean that these activities and uses are all subject to the
underlying conservation principle that defers to natural processes and
favors management that mimics natural processes. When natural processes
alone are insufficient to support ecological functions, refuge managers
would be required to evaluate the necessity for and potential
environmental effects of a proposed management activity or use in
accordance with the National Environmental Policy Act (NEPA) before
authorizing it, including considering reasonable alternatives,
scientific support, and potential risk of unintended consequences. This
approach is consistent with current Service policies.
Additionally, while each of the regulations in proposed paragraphs
(d)(1)-(7) would direct a default position regarding use of a
particular management practice, they simultaneously would provide
flexibility to implement them as conservation tools when determined,
based on comprehensive analysis, that they are necessary to meet
statutory requirements, fulfill refuge purposes, and ensure BIDEH.
Notably, NEPA analysis of management activities and uses could occur as
part of development of a refuge's comprehensive conservation plan (CCP)
or other approved management plan or could be conducted as a standalone
analysis. Regardless, such activities and uses must be consistent with
the CCP. Refuge managers must also fulfill other policy and legal
requirements prior to implementing a management activity or use when
applicable. This could include conducting scientific peer review (see
section 3.14(C) of the proposed policy for more information on peer
review requirements) or conducting a compatibility determination for
refuge management economic activities or activities that involve use of
a refuge by the public or other non-Refuge System entity (see the
Service's Compatibility policy at 603 FW 2 and regulations at 50 CFR
parts 25, 26, and 29 for more information). See the proposed
regulations and associated policy updates for further substantive
details and instruction for the management activities and uses
contained in this proposed rule and policy revision.
Coordination With Adjacent Landowners, State and Tribal Partners
The Service recognizes that ensuring the BIDEH of the Refuge System
necessitates a landscape-level perspective for managing an
interconnected network of lands and waters involving collaboration with
our State and Tribal partners, adjacent landowners, and other
stakeholders. These proposed regulations and policy updates comply with
and incorporate the Service's commitment to cooperate and coordinate
with State partners, as appropriate, in accordance with 43 CFR 24.4(e)
and 601 FW 7. They also encourage effective interaction and
coordination with other owners of land adjoining refuges. The proposed
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regulations and policy updates additionally comply with and uphold the
Service's continued commitment to cooperate and coordinate with
federally recognized Tribes and other Indigenous Peoples, consistent
with the Service's Native American Policy at 510 FW 1, to protect
treaty, religious, subsistence, and cultural interests in the Refuge
System. Further, the Service proposes to identify and define Indigenous
Knowledge in the policy updates as an appropriate source of historical
information that would support best available scientific information
about historical conditions as a reference point for management
decisions.
Request for Comments
You may submit comments and materials on this proposed rule by
either one of the methods listed in ADDRESSES. We will not accept
comments sent by email or fax or to an address not listed in ADDRESSES.
We will not consider comments that are not postmarked by the date
specified in DATES.
We will post your entire comment on https://www.regulations.gov.
Before including personal identifying information in your comment, you
should be aware that we may make your entire comment--including your
personal identifying information--publicly available at any time. While
you can ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so. We will post all hardcopy comments on https://www.regulations.gov.
Required Determinations
Clarity of This Proposed Rule
Executive Orders 12866 and 12988 and the Presidential Memorandum of
June 1, 1998, require us to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this proposed rulemaking action is not significant. The
proposed rule would simply serve to codify longstanding refuge
management principles and further empower refuge managers to uphold the
Refuge System's conservation mission and achieve refuge purposes in the
face of complex threats to wildlife and their habitat.
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this proposed rule in a manner consistent with
these requirements.
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 will 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). The
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities.
This proposed rule would govern the actions taken by the Service
but would not create any requirements for or place any regulatory
compliance burden on private entities. The Service also does not
anticipate the requirements to promote BIDEH to alter the current
practices of the Service's cooperative agriculture and water rights
programs. The Service currently operates and has always operated in
accordance with the same Refuge System-wide principles for maintaining
BIDEH represented in these proposed regulations. The Service has
determined that this proposed rulemaking is warranted to clarify our
policies and practices, better prepare refuges to confront future
impacts from climate change and other anthropogenic change, and provide
the opportunity for public input on our interpretation of the
Improvement Act's BIDEH mandate, including its application in the
context of predator control, species introductions, genetically
engineered organisms, invasive species, pesticide use, agricultural
practices, and mosquito control. As a result of the internal nature of
these proposed regulations, this rulemaking action would have no impact
on small entities.
Therefore, the Service certifies that this rule, as proposed, would
not have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). A regulatory flexibility analysis is not required.
Accordingly, a small entity compliance guide is not required.
Congressional Review Act
The proposed rule is not a major rule under 5 U.S.C. 804(2). The
Service anticipates no significant employment or small business
effects. This proposed rule:
a. Would not have an annual effect on the economy of $100 million
or more.
b. Would not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
c. Would 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 in
domestic and export markets.
Unfunded Mandates Reform Act
Since this proposed rule would apply to management of refuges by
the Service, it would not impose an
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unfunded mandate on State, local, or Tribal governments or the private
sector of more than $100 million per year. The proposed rule would not
have a significant or unique effect on State, local, or 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 E.O. 12630, this proposed rule would not have
significant takings implications. This proposed rule would affect only
management of refuges by the Service.
Federalism (E.O. 13132)
As discussed under Regulatory Planning and Review and Unfunded
Mandates Reform Act, above, this proposed rule would not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement under E.O. 13132.
Civil Justice Reform (E.O. 12988)
In accordance with E.O. 12988, the Department of the Interior has
determined that this proposed rule would not unduly burden the judicial
system and that it meets the requirements of sections 3(a) and 3(b)(2)
of the E.O.
Energy Supply, Distribution or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare statements of energy
effects for regulations that significantly affect energy supply,
distribution, and use. Because this proposed rule would uphold and
enforce existing management principles and practices by the Service on
refuges, it is not a significant regulatory action under E.O. 12866,
and we do not expect it to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no statement of energy effects is required.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
In accordance with E.O. 13175, the Service has evaluated possible
effects on federally recognized Indian Tribes and has determined that
there are no effects. Before taking actions, the Service coordinates
our activities on Service lands and waters with Tribal governments
having adjoining or overlapping jurisdiction.
Paperwork Reduction Act of 1995 (PRA)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. The Service may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
The Service is required under the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) to assess the impact of any Federal
action significantly affecting the quality of the human environment,
health, and safety. The Service has determined that this proposed rule
falls under the class of actions covered by the following Department of
the Interior categorical exclusion: Policies, directives, regulations,
and guidelines: that are of an administrative, financial, legal,
technical, or procedural nature; or whose environmental effects are too
broad, speculative, or conjectural to lend themselves to meaningful
analysis and will later be subject to the NEPA process, either
collectively or case-by-case (43 CFR 46.210(i)). Under the proposed
rule, the Service would take future actions guided by the requirements
to support BIDEH, but these future actions would be determined and
taken at the individual refuge level and their environmental impacts
assessed on a case-by-case basis. Therefore, the environmental impacts
of the proposed rule are too speculative to lead to meaningful analysis
at this time. The Service would assess the environmental impact of any
potential management action mentioned in these regulations prior to
taking that action on Service lands or waters.
Primary Author
Katherine Harrigan, Division of Natural Resources and Conservation
Planning, National Wildlife Refuge System, is the primary author of
this proposed rulemaking document.
List of Subjects in 50 CFR Part 29
Public lands mineral resources, Public lands rights-of-way,
Wildlife refuges.
Proposed Regulation Promulgation
For the reasons set forth in the preamble, we propose to amend part
29, subchapter C of chapter I, title 50 of the Code of Federal
Regulations as set forth below:
PART 29--LAND USE MANAGEMENT
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1. The authority citation for part 29 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 685, 690d,
715i, 725, 3161; 30 U.S.C. 185; 31 U.S.C. 3711, 9701; 40 U.S.C. 319;
43 U.S.C. 315a; 113 Stat. 1501A-140.
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2. Add Sec. 29.3 to read as follows:
Sec. 29.3 Biological integrity, diversity, and environmental health.
We will maintain and, where necessary and appropriate, restore and
enhance the biological integrity, diversity, and environmental health
of national wildlife refuges, both individually and as a network of
intact, functioning, and resilient habitats for fish, wildlife, and
plants, for the benefit of present and future generations of Americans.
(a) Ensure biological integrity, diversity, and environmental
health. To ensure biological integrity, diversity, and environmental
health means to holistically conserve refuge ecosystems and all their
components and processes across multiple spatial scales; promote
natural processes; and address ecological transformation caused by
climate change and other anthropogenic change to accomplish the mission
of the National Wildlife Refuge System (Refuge System). We will seek to
achieve the highest measure of biological integrity, diversity, and
environmental health on refuges, which is represented by diverse,
functioning, and self-sustaining ecosystems that are resilient to
emerging or future conditions. We will use sound professional judgment,
informed by the best available scientific information, to ensure that
refuge management contributes to and does not diminish the biological
integrity, diversity, and environmental health of refuges and the
Refuge System for the benefit of fish and wildlife conservation.
(b) Definitions. In addition to relevant definitions in Sec. 25.12
of this subchapter C, the following definitions apply to this section:
Adaptation means an adjustment in natural or human systems to a new
or changing environment that uses beneficial opportunities or moderates
negative effects.
Anthropogenic change means environmental change that humans cause
or influence, either directly or indirectly.
Biological integrity means the capacity of an ecological system to
support and maintain a full range of biotic composition, structure,
function, and processes over time that exhibit diversity, connectivity,
and resilience at genetic, organism, population, and community levels.
We evaluate biological integrity by referencing historical conditions,
recognizing that
[[Page 7351]]
climate change and other anthropogenic change are influencing refuge
ecosystems.
Climate change mitigation means measures taken to reduce the amount
and speed of future climate change by reducing emissions of heat-
trapping gases or removing carbon dioxide from the atmosphere,
including by improving ecosystem capacity for biological carbon
sequestration.
Connectivity means the degree to which landscapes, waterscapes, and
seascapes allow species to move freely and ecological processes to
function unimpeded.
Conservation translocation means deliberately moving organisms from
one site to another for release, with the intention of yielding a
measurable conservation benefit at the levels of a population, species,
or ecosystem.
Diversity means the variety of life and its processes, including
the richness and abundance of living organisms, the genetic differences
among them, and communities and ecosystems in which they occur. We
evaluate diversity by referencing historical conditions, recognizing
that climate change and other anthropogenic change are influencing
refuge ecosystems.
Ecological transformation means the shift in an ecosystem,
resulting in a new system that deviates from prior ecosystem structure
and function or species composition.
Ecosystem means systems comprised of biota (living organisms), the
abiotic environment (e.g., air, light, soils, water), the interactions
within and between them, and the physical space in which they operate.
Environmental change means an alteration or disturbance of the
environment caused by humans or natural processes that generates
differences in the function or characteristics of an ecosystem.
Environmental health means composition, structure, and functioning
of soil, water, air, and other abiotic features, including the abiotic
processes that shape the environment. We evaluate environmental health
by referencing historical conditions, recognizing that climate change
and other anthropogenic change are influencing refuge ecosystems.
Historical conditions means composition, structure, and function of
ecosystems that existed prior to ecological degradation caused by
anthropogenic change, based on best available scientific and historical
information.
Invasive species means with respect to a particular ecosystem a
non-native organism, including its seeds, eggs, spores, or other
biological material capable of propagating that species, whose
introduction causes or is likely to cause economic or environmental
harm, or harm to human, animal, or plant health.
Native means with respect to a particular ecosystem, a species
that, other than as a result of an introduction, historically occurred
or currently occurs in that ecosystem, including when such a species
expands or shifts its range as a result of natural processes in
response to environmental change.
Natural processes mean interactions among plants, animals, and the
environment that occur without substantial human influence.
Predator control means actions or programs with the intent or
potential to alter predator-prey population dynamics on a refuge by
reducing a population of native predators through lethal or nonlethal
methods, except for actions necessary to protect public health and
safety and those enumerated under paragraph (d)(1) of this section.
(c) Management directives for ensuring biological integrity,
diversity, and environmental health. The following regulations serve as
a framework for determining and implementing refuge management actions
to meet our statutory obligations and policy goals:
(1) Address climate change. Within the Refuge System, we will
manage species and habitats affected by climate change and other
anthropogenic change by using climate change mitigation and adaptation
strategies when necessary to meet statutory requirements, fulfill
refuge purposes, and ensure biological integrity, diversity, and
environmental health.
(2) Conserve and connect habitat. We allow for and defer to natural
processes on habitats within the Refuge System and promote
conservation, restoration, and connectivity to meet refuge habitat
objectives and landscape planning goals. We will avoid and minimize
habitat fragmentation to sustain biological integrity and diversity.
When natural processes cannot meet habitat objectives or facilitate
adaptation to anthropogenic change, we will use science-based
management techniques or acquire lands when necessary to meet statutory
requirements, fulfill refuge purposes, and ensure biological integrity,
diversity, and environmental health.
(3) Manage fish and wildlife populations. We conserve fish and
wildlife populations within the Refuge System to meet refuge population
objectives, sustain functioning ecosystems, and, where appropriate,
restore or recover imperiled species. When habitat conditions and
natural processes are insufficient to meet these goals or facilitate
adaptation to anthropogenic change, we may pursue actions to supplement
natural processes when necessary to meet statutory requirements,
fulfill refuge purposes, and ensure biological integrity, diversity,
and environmental health.
(4) Uphold water rights. We will maintain and exercise our water
rights on habitats within the Refuge System in accordance with local,
State, and Federal laws. Where necessary, we will acquire, transfer, or
lease water rights to meet statutory requirements, fulfill refuge
purposes, and ensure biological integrity, diversity, and environmental
health.
(5) Promote and maintain healthy soil, water, and air. We promote
and maintain soil health, water quality and quantity, and air quality
as vital to sustaining and restoring habitats within the Refuge System
through conservation and management to meet statutory requirements,
fulfill refuge purposes, and ensure biological integrity, diversity,
and environmental health. We will address threats to these abiotic
components by pursuing appropriate actions, including when such threats
to refuge resources arise outside refuge boundaries.
(d) Management activities and uses with potential to ensure
biological integrity, diversity, and environmental health. The
regulations in this paragraph (d) provide guidance for certain
management activities and uses that may support the maintenance of
biological integrity, diversity, and environmental health. These
activities and uses will be implemented within the Refuge System only
as consistent with the management directives set forth in paragraph (c)
of this section. Proposed activities and uses will be evaluated in
compliance with the National Environmental Policy Act (42 U.S.C. 4321
et seq.) and other legal requirements, as applicable.
(1) Native predator control. We prohibit predator control unless it
is determined necessary to meet statutory requirements, fulfill refuge
purposes, and ensure biological integrity, diversity, and environmental
health. We may implement lethal predator control only when all other
feasible methods have been fully evaluated and such control is
considered the only practical means of addressing a specific,
significant conservation concern and ensuring biological integrity,
diversity, and environmental health. We do not consider the following
actions to be predator control:
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(i) Agency removal of native predator(s) solely to protect public
health and safety;
(ii) Use of barriers or nonlethal deterrents to protect the public,
property, or vulnerable species, but that are not intended to reduce
native predator populations;
(iii) Compatible, refuge-approved taking of fish and wildlife for
subsistence uses under Federal or State subsistence regulations that do
not compromise maintaining biological integrity, diversity, and
environmental health on the refuge;
(iv) Compatible, refuge-approved recreational hunting and fishing
opportunities that do not compromise maintaining biological integrity,
diversity, and environmental health on the refuge; and
(v) Removal of invasive species.
(2) Conservation translocations. We may allow the introduction of a
species outside its current range to avoid extinction or extirpation;
restore a species; reestablish a specific ecological function lost to
extinction or extirpation; or, in accordance with Sec. 17.81(a) of
this chapter, when necessary to meet statutory requirements, fulfill
refuge purposes, and ensure biological integrity, diversity, and
environmental health.
(3) Use of genetically engineered organisms. We prohibit the use of
genetically engineered organisms unless their use is determined
necessary to meet statutory requirements, fulfill refuge purposes, and
ensure biological integrity, diversity, and environmental health.
(4) Invasive species management. We pursue actions to control
invasive species as part of an integrated pest management plan when
necessary to meet statutory requirements, fulfill refuge purposes, and
ensure biological integrity, diversity, and environmental health.
(5) Pesticide use. We may allow the use of pesticides, following
review and approval of their use as part of an integrated pest
management plan, when necessary to meet statutory requirements, fulfill
refuge purposes, and ensure biological integrity, diversity, and
environmental health. Such use must not result in adverse effects on
populations of nontarget species.
(6) Agricultural uses. We prohibit the use of agricultural
practices unless they are determined necessary to meet statutory
requirements, fulfill refuge purposes, and ensure biological integrity,
diversity, and environmental health, and where we cannot achieve refuge
management objectives through natural processes.
(7) Mosquito control. We prohibit control of native mosquitoes
unless it is determined necessary to meet statutory requirements,
fulfill refuge purposes, and ensure biological integrity, diversity,
and environmental health or protect human health and safety. In these
situations, chosen control methods must be the least injurious to fish,
wildlife, and their habitats. We may coordinate with public health
agencies or mosquito control organizations to implement the most
effective control methods that minimize risk to refuge ecosystems and
public health.
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-02076 Filed 2-1-24; 8:45 am]
BILLING CODE 4333-15-P