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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 32

[Docket No. FWS-R9-NSR-2011-0038; 93270-1265-0000-4A]

RIN 1018-AX54

2011-2012 Refuge-Specific Hunting and Sport Fishing Regulations

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: The Fish and Wildlife Service adds one refuge to the list of areas open for hunting and/or sport fishing and increases the activities available at nine other refuges, along with adopting pertinent refuge-specific regulations on other refuges that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2011-2012 season.
DATES: This rule is effective September 9, 2011.
FOR FURTHER INFORMATION CONTACT: Leslie A. Marler, (703) 358-2397.
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 also consider the role of facilitating hunting heritage in expanding hunting opportunities on national wildlife refuges consistent with the agency's mission.

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 proposing to standardize and clarify the language of existing regulations.

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, 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 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 sportfishing 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 July 5, 2011,Federal Register(76 FR 39186), we published a proposed rulemaking identifying changes pertaining to migratory game bird hunting, upland game bird hunting, big game hunting, and sport fishing to existing refuge-specific language on certain refuges for the 2011-2012 season. We received 251 comments on this proposed rule during a 30-day comment period; 226 of those comments were supportive of the rulemaking; 18 were opposed to the rulemaking; and the remainder expressed neither support nor opposition but had comments.

Comment 1:A commenter asked when we would notify the public of the opening of the various areas, when the applications would become available, and what fees we would require.

Response 1:With the publication of this final rule document, the changes become effective. We will be issuing press releases both locally in the affected areas and nationally from the Headquarters of the National Wildlife Refuge System and the U.S. Fish and Wildlife Service. Interested hunters should contact the particular refuge that they wish to visit for application and fee information. We maintain a list of all of the national wildlife refuges on our National Wildlife Refuge System homepage (link: http://www.fws.gov/refuges/). Look for the “Find Your Refuge” section on the first page and you can query the system by State, zip code, alphabetically by refuge or other means via the pull-down menu. Once you link to the refuge of interest, you will find their address, phone number, and a link to their individual Web sites.

Comment 2:We received six comments (from 4 different individuals) expressing concern regarding the Minnesota Valley National Wildlife Refuge's proposed prohibition on falconry. They state we offered no explanation for this prohibition, and they contend that falconry is a legal means of hunting/take in the State of Minnesota as it is in 49 of the 50 States. They object strongly to what appears to be prejudicial and a “denied equitable public opportunity” on the refuge and request that we remove such a bias from the regulations by allowing falconry. One commenter goes on to say that “clear regulatory or policy guidance to permit falconry on all refuge properties would assist refuge managers and personnel development refuge management plans.” This requestor also, “respectfully requests on all refuge properties where take is allowed by archery methods only, that falconry also be permitted.”

Response 2:Upon further examination of this condition, the refuge has decided to reverse their decision regarding falconry hunting as a means of take for migratory birds on Minnesota Valley National Wildlife Refuge and allow this opportunity. Due to the small number of hunters that practice falconry, the method used with this hunting technique, and the average success rate of this hunting method, we believe that this change will be insignificant in its direct, indirect, and cumulative impact. The factors considered in our analysis include the impact of this activity on overall migratory bird harvest, habitat conditions, interactions with other user groups, falconry hunter numbers, and economic gain or loss associated with this type of hunting.

As far as policy specific to falconry, Service policy 605 FW 2.7M Special Hunts stipulates, “We will address special types of hunts, such as falconry, in the hunt section of the visitor service plan (VSP).” In other words, each refuge manager when developing their step-down visitor service's plan (which would include a hunt plan, if appropriate) from their Comprehensive Conservation Plan, must first determine if hunting is compatible. Assuming it is found to be compatible, the refuge manager would next determine the conduct of the hunt which might include the use of falconry. A refuge manager has discretion to prohibit hunting, and specifically falconry, in certain cases such as if endangered or threatened species are present; thus it is decided individually on a refuge-by-refuge basis.

Comment 3:A commenter supports the proposed rule to open Crane Meadows National Wildlife Refuge to deer and turkey hunting and to expand hunting at nine other refuges across the country and agrees that the rule meets the intent of the National Wildlife Refuge System Improvement Act to provide opportunities for wildlife-dependent activities, including hunting, when these activities are compatible with refuge purposes and with the mission and purposes of the National Wildlife Refuge System. The commenter wonders why in theSUPPLEMENTARY INFORMATIONsection of the proposed rule that Executive Order 13443 is not included along with other mentioned Executive Orders (E.O.) and urges us to add this E.O. to the list of others with which we must comply and make this E.O. a standard part of any future proposed rule that opens or expands wildlife-dependent activities on national wildlife refuges.

Response 3:The very nature of this rule to open and expand hunting on national wildlife refuges is consistent with the purpose of Executive Order 13443 (Facilitation of Hunting Heritage and Wildlife Conservation). However, we are not including reference to the E.O. in the Required Determinations section of the rule because all of the E.O.s and Acts that are contained in that section of the rule require that a substantive determination be made as part of the regulatory process, whereas E.O. 13443 states that agencies should consider certain things in developing their policies but does not require that a specific determination be made in analyzing the substance of the E.O. as it might be impacted by the proposed regulation (emphasis added). We do consider the broad precepts of E.O. 13443 in developing the hunting regulations, but there is no affirmative obligation to assert that an agency has complied with that specific E.O.

As the commenter correctly observes, this proposed rule does meet the intent of the National Wildlife Refuge System Improvement Act to provide opportunities for wildlife-dependent activities, including hunting, when these activities are compatible with refuge purposes and with the mission and purposes of the National Wildlife Refuge System. They also correctly note that in theSUPPLEMENTARY INFORMATIONsection of the proposed rule we reference the Improvement Act and the fact that it established six wildlife-dependent recreation uses, including hunting, as priority general public uses.

We have added a sentence to theSUPPLEMENTARY INFORMATIONsection of this final rulemaking to indicate that we consider the role of facilitating hunting heritage in expanding hunting opportunities on national wildlife refuges consistent with the agency's mission.

Comment 4:Seventeen commenters expressed objection to the concept of allowing any more hunting on national wildlife refuges. Their statements ranged from “ * * * too many people, too few animals” to “I think the fact that it is a National Wildlife `Refuge' should mean just that.”

Response 4:The 1966 National Wildlife Refuge System Administration Act, which was amended by the 1997 National Wildlife Refuge System Improvement Act, stipulates that hunting (along with fishing, wildlife observation and photography, andenvironmental education and interpretation), if found to be compatible, is a legitimate and priority general public use of a refuge and 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. 4321et seq.) (NEPA) (which also allows for public comment) to make the determination before opening the refuge to hunting or expanding the hunting opportunities on the refuge. We made no change to the regulations as a result of these comments.

Comment 5:A commenter expressed opposition to opening Arapaho National Wildlife Refuge in Colorado to elk hunting.

Response 5:Elk are found throughout the refuge and are the most numerous big game species on the refuge. The wintering elk population has continued to grow, from 200 to 300 elk in 1988 to approximately 1,500 to 1,800 elk on the refuge in recent years.

The primary objective of the elk hunt is to increase the dispersal of elk onto adjacent lands where they will be available to more hunters, and to harvest a small percentage of the population on the refuge thereby lessening the impacts to all native species, including migratory birds. The elk hunt will also provide a new, quality hunting opportunity for hunters with a focus on youth hunters and hunters with disabilities. Refuge managers determined that it is advisable to take management action before the elk population reaches the point where it does long-term damage to the environment and adversely affects other native flora and fauna species.

Without a reduction in elk numbers, sections of the Illinois River on the refuge will continue to be impacted by wintering elk. Elk can have a severe impact on establishment and long-term health of willow stands, making achievement of refuge habitat objectives unlikely. If the refuge elk population continues to grow, it will eventually exceed the carrying capacity of the available habitat. We will continue to monitor the population, coordinate with the Colorado Department of Wildlife, limit hunter participation, and establish bag limits to ensure the population will not be adversely affected by managed hunting.

We made no change to the regulations as a result of this comment.

Comment 6:A commenter from the State of Texas, although supportive of the rulemaking, felt it was important to require “* * * those utilizing these great resources to take appropriate hunter and bowhunter education courses. This will make sure that all hunters have been exposed to safety and ethical issues that will insure a safer hunting environment.”

Response 6:We concur with the commenter. As discussed in the introductory paragraph of each hunting and/or sport fishing category for nearly every refuge under each State in 50 CFR part 32, we stipulate that we allow hunting and/or sport fishing activities in accordance with State regulations subject, in many cases, to conditions that follow in the refuge-specific regulations. Regulations allowing hunting of wildlife within the Refuge System must be, to the extent practicable, consistent with State fish and wildlife laws, regulations, and management plans; therefore, we do not reiterate those regulations in our regulations (see Fish and Wildlife Service policy 605 FW 2.3B).

In the case of Texas, State regulations require that big game hunters have a bowhunting/hunter education certificate in their possession when hunting. Although we do not specifically restate this in our Texas refuge-specific regulations, our refuges do comply with this State law, which would include requiring this certificate for big game hunters. Further, at each refuge, there are brochures available to the hunter that go into detail about this State and refuge requirement. We made no changes to the rule as a result of this comment.

Comment 7:A commenter indicated they would like to see deer and hog hunting allowed by archery means only on Bayou Sauvage National Wildlife Refuge (NWR) in the State of Louisiana.

Response 7:This urban refuge (within the city limits) is closed to big game hunting (the category of hunting under which one would find large species such as deer and hog); therefore this comment is not germane to this rulemaking. We made no change to the regulation as a result of this comment.

Comment 8:A commenter asked why we do not allow feral pig hunting at Merritt Island NWR in Florida as “they have a terrible feral pig problem” there. Also the same commenter questioned the need for a waterfowl hunt as wintering waterfowl numbers have dropped from 120,000 to under 18,000 in the past 10 years.

Response 8:Merritt Island National Wildlife Refuge is an overlay of the Kennedy Space Center (KSC) and the Service manages NASA's lands through an agreement. Prior to NASA's purchase of the lands for KSC, much of the area was owned by several large hunt clubs and when the property was sold, the prominent hunt club members desired retaining hunting privileges. When NASA entered into the agreement with the Service to establish the refuge, it specified waterfowl hunting would continue. Since 1963, the year we established the refuge, we have allowed waterfowl hunting in selected locations outside the restricted area of KSC.

The refuge hunt program has evolved over the years in response to changing waterfowl populations, waterfowl use patterns, habitat conditions, and changes in the public use program. The length of the season, days of the week open to hunting, number and size of hunt areas, and ways and means for issuing permits have changed frequently over the past 48 years. Presently 36,000 acres of the 140,000-acre Merritt Island NWR are open to waterfowl hunting and are subdivided into four hunt areas (Hunt Areas 1 through 4). The refuge has a concurrent season with the State of Florida, except the refuge is open to hunting 3 days per week (Wednesday, Saturday, and Sunday) from legal shooting time until 1 p.m. We require a refuge hunt permit (signed brochure), a State-approved hunter safety training certificate, and a quota permit (State permit) for Hunt Areas 1 and 4 for the months of November and December.

Waterfowl populations have declined on the refuge for at least 10 years. The refuge staff is concerned about the decline, but it is unclear if the cause is fewer birds migrating to Florida, a shift in the Florida wintering population to other parts of the State (the decline seems to coincide with new habitat being created for Everglades restoration), or excessive hunting pressure on the refuge. In March of this year, following the 2010-2011 Waterfowl Season, refuge personnel met with the Florida Fish and Wildlife Commission and waterfowl hunter stakeholders (representatives from Ducks Unlimited and United Waterfowlers), to discuss solutions to improve waterfowl hunting and address the decline in the refuge waterfowl populations. As a result of this meeting, the consensus was to attempt to improve the quality of the habitat conditions on the refuge but not make any immediate changes to the hunt program. The refuge will continue to monitor the waterfowl population but, at least for now, does not propose anyadditional changes to the waterfowl regulations.

With respect to the issue of opening the refuge to feral hog hunting, the refuge has never been open to big game hunting. However in 2006, when they completed the Comprehensive Conservation Plan for the refuge, they made provisions to evaluate opening the northern quarter of the refuge to feral hog and deer hunting. The refuge currently uses hog trappers under permit to remove feral hogs, and those trappers remove between 2,500 to 3,000 animals annually through this program at no cost to the refuge. The feral hog removal program is fairly effective, and at this time we do not wish to introduce a public hunt into the mix. A public hunt may provide a short-term advantage of reducing the population quickly in the area of the hunt, but, in the long run, the constant pressure afforded by the hog trappers in all areas of the refuge may provide a more effective long-term control. However, the refuge plans to evaluate implementing a feral hog hunt when the feral hog permits expire. No changes were made to this final rule as a result of this comment.

Comment 9:A commenter asked how we would pay for supervision of hunting activity in these proposed areas given the budgetary constraints that currently exist and that are likely to become more stringent. Also, do we believe we can properly supervise the hunts under the circumstances?

Response 9:When developing the Comprehensive Conservation Plans and step-down hunting plans for each refuge, the refuge manager takes into account budgetary needs for increased hunting opportunities. Basically, the refuge would not be proposing the activity (or increased activity) if it did not anticipate that there was enough funding to ensure compatibility and to administer and to manage the hunts.

Typically, you can find this discussion under the “Staffing and Funds” section of each refuge's hunt plans, which were made publicly available when first issued, and remain available at each station's Web site. In some cases, an existing hunt program is in place and the refuge does not anticipate a drastic change in staffing or funding requirements. As refuge law enforcement can be a collateral duty for refuge staff, they may occasionally “borrow” law enforcement as needed from other refuges. For other refuges, non-law enforcement staff time does not increase greatly since generally all hunting seasons and permitting will be handled according to State regulations. Some refuges also see some budgetary relief in user fees which they believe are sufficient to cover increased opportunities. Some refuges state that there would be some costs associated with a hunting program in the form of brochures, instructional sign needs, and law enforcement. These refuges expect that the costs should be minimal relative to total refuge operations and maintenance costs and would not diminish resources dedicated to other refuge management programs.

However, the refuges do acknowledge there will be some additional staff workload in order to administer new hunting opportunities and this factors into the decision to allow those opportunities. Finally, as discussed earlier in thisSUPPLEMENTARY INFORMATIONsection, with the passage of the National Wildlife Refuge Improvement Act of 1997, Congress mandated that hunting was one of the six priority general public uses that refuge managers were to facilitate when compatible, so to the extent possible and practicable, we adhere to that directive.

We made no change to the regulations as a result of this comment.

Comment 10:A commenter, although supportive of the additional hunting opportunity in Iowa, wondered why we impose additional requirements such as “steel shot only” on all our public hunting areas. The commenter points out that steel is costly and does not believe that it has been proven that the steel shot requirement has had a positive effect on migratory birds.

Response 10:Waterfowl and migratory birds can get lead poisoning by ingesting lead shot when they feed (seehttp://www.fws.gov/sacramento/ec/lead%20shot.htm). In the November 21, 1986,Federal Register(51 FR 42103) we began the conversion to nontoxic shot nationwide for waterfowl hunting on refuges, which we implemented in the 1991-1992 hunting season. At that time, refuges were implementing the nontoxic shot requirement on a refuge-by-refuge basis, and multiple rules were published (an example would be the June 19, 1991,Federal Register(56 FR 28133)). The Service oversees the approval process for alternative shot types in the United States. We specifically identify the shot allowed in areas of the Refuge System by reference to the shot identified in 50 CFR 20.21(j). We sometimes grant new shot types conditional approvals until we complete all necessary studies. These conditional approvals may change yearly, and we add new shot types to our approved list as they meet our criteria. You can link to the following Web sites concerning lead shot that contain more background information on this issue:

http://www.lab.fws.gov/shotpellets_leadshot.php; http://www.fws.gov/sacramento/ec/lead%20shot.htm; http://www.fws.gov/contaminants/DisplayNews.cfm?NewsID=4DAA500C-3E21-4564-87AA714E9E301C9E.

You can find many other Web sites concerning lead shot by conducting an Internet search.

We made no change to the regulations as a result of this comment.

Comment 11:We received a comment regarding the proposed youth hunt at Bayou Sauvage National Wildlife Refuge in Louisiana. The commenter notes that the proposed hunt would allow hunting within 500 feet of Venetian Isle, a dense population of waterfront homes within the New Orleans city limits, and believes that not only should we prohibit hunting within the city limits but that the hunting boundaries should be at least 1 mile from homes. Further, the commenter doesn't want to be awakened by gunfire on weekend mornings.

Response 11:The National Wildlife Refuge System Improvement Act of 1997 identifies hunting as a priority public use, and providing opportunities for fish and wildlife public uses in an urban setting is an established purpose of the refuge. Given this supporting legislation and the significant public support for hunting on Bayou Sauvage NWR, it is important that these opportunities are available to the public.

Our goal is to ensure that hunting is balanced with the other priority public uses of environmental education, wildlife observation, interpretation, fishing, and photography. Thus, we have designated the interior units (57 percent of the refuge) as closed to hunting to allow ample opportunities for the other five priority uses. Additionally, we allow hunting only 4 days per week until 12 (noon), and these units will be open to fishing and other activities during nonhunting times.

The youth hunt we are proposing is for migratory bird hunting, unlike comment 7 whichi dealt with big game hunting. The ammunition used for these two types of hunting is different. Bird shot has a different trajectory and much less mass than a rifled slug or bullet and would not travel as far as those ammunitions used in big game hunting. Under these circumstances, we feel the prohibition of hunting within 500 feet (150 m) of residences adequately provides for public safety. On two other Louisiana refuges, Big Branch Marsh and Bogue Chitto, we allow huntingwithin 150 feet (45 m) of roads, trails, residences, and public facilities. In order to reduce potential noise associated with hunting activities near Venetian Isles, the areas located outside the hurricane protection levee, immediately west and south of Venetian Isles, between the former Bayou Sauvage channel and the railroad tracks will be posted closed to hunting. We made no changes to this regulation as a result of the comment.

Comment 12:A commenter questioned the “rigorous scientific research into the status of refuge wildlife populations” and whether we were using this information to guide refuge planning. The commenter went on to say that a determination must be made that “wildlife are surplus to a balanced conservation program on any wildlife area,” and that “unless the species is damaging or destroying federal property within a refuge, the species cannot be subject to live removal or lethal control, including through official animal control operations.” They believe that “refuges often fail to have refuge specific monitoring of harvest levels,” and discussed the concept of an “inviolate sanctuary.” Finally, the commenter believes that since “21 million people visit refuges for wildlife observation” and “only 1.4 million visit to hunt or trap” that nonconsumptive users should enjoy a higher priority when it comes to use of refuge lands.

Response 12:As discussed in the response to Comment 4, and as Comment 12 acknowledges, “the Refuge Improvement Act upgrades hunting and fishing to a priority use * * *”. Each refuge manager gives the decision to allow hunting on a particular refuge rigorous examination. A Comprehensive Conservation Plan (CCP), a 15-year plan for the refuge, is generally the first step a refuge manager takes. Our policy for managing units of the Refuge System is that we will manage all refuges in accordance with an approved CCP which, when implemented, will achieve refuge purposes; help fulfill the Refuge System mission; maintain and, where appropriate, restore the ecological integrity of each refuge and the Refuge System; help achieve the goals of the National Wilderness Preservation System; and meet other mandates. The CCP will guide management decisions and set forth goals, objectives, and strategies to accomplish these ends. The next step for refuge managers is step-down plans, of which hunting would be one step-down plan. Part of the process for opening a refuge to hunting after completing the step-down plan would be appropriate compliance with the National Environmental Policy Act (NEPA), typically an environmental assessment accompanied by the appropriate decision documentation (Record of Decision, Finding of No Significant Impact, or an Environmental Action Memorandum or Statement). The CCP, hunt plan, and NEPA all receive public comment as does the proposed rule, before the final rule is published in theFederal Register. After publication of the final rule, we allow hunting on a refuge.

In sum, this illustrates that the decision to allow hunting on a national wildlife refuge is not a quick or simple process. It is full of deliberation and discussion, including review of all available data to determine the relative health of a population before we allow it to be hunted. In the case of migratory game bird hunting, the Service annually prescribes frameworks for dates and times when migratory bird hunting may occur in the United States, and the number of birds that hunters may take and possess. We write these regulations after giving due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, and we update the information annually. Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), Congress authorized the Secretary of the Interior to determine when “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any * * * bird, or any part, nest, or egg” of migratory game birds can take place, and to adopt regulations for this purpose. The Secretary of the Interior delegated this responsibility to the Service as the lead Federal agency for managing and conserving migratory birds in the United States.

Because the Service is required to take abundance of migratory birds and other factors into consideration, we undertake a number of surveys throughout the year in conjunction with the Canadian Wildlife Service, State and Provincial wildlife management agencies, and others. To determine the appropriate frameworks for each species, we consider factors such as population size and trend, geographical distribution, annual breeding effort, the condition of breeding and wintering habitat, the number of hunters, and the anticipated harvest. After we establish frameworks for season lengths, bag limits, and areas for migratory bird hunting, migratory game bird management becomes a cooperative effort of State and Federal Governments. After Service establishment of final frameworks for hunting seasons, the States may select season dates, bag limits, and other regulatory options for the hunting seasons.

As discussed in the Cumulative Impacts Report that we posted onhttp://www.regulations.govunder Docket No. FWS-R9-NSR-2011-0038, along with the proposed rule on the day of publication (July 5, 2011), we took a look at the cumulative impact that the 2011-2012 proposed rule would have on migratory birds, resident wildlife, nonhunted migratory and resident wildlife, threatened and endangered species, habitats and plant resources, other wildlife-dependent recreational uses, physical resources (air, water, soils), cultural resources, refuge facilities, solitude, and cumulative socioeconomic impacts.

This rule proposes to expand migratory bird hunting on five refuges. Collectively, we estimate that this proposed hunting action will result in the take of 2,450 ducks or .019 percent of the estimated national harvest and the take of 650 geese or .02 percent of the estimated national harvest. In short, we project that harvests of these species on the five refuges will constitute an extremely minor component of the national harvests.

We allow hunting of resident wildlife on national wildlife refuges only if such activity has been determined compatible with the established purpose(s) of the refuge and the mission of the Refuge System as required by the Administration Act. Hunting of resident wildlife on national wildlife refuges generally occurs consistent with State regulations, including seasons and bag limits. Refuge-specific hunting regulations can be more restrictive (but not more liberal) than State regulations and often are in order to help meet specific refuge objectives. These include resident wildlife population and habitat objectives, minimizing disturbance impacts to wildlife, maintaining high-quality opportunities for hunting and other wildlife-dependent recreation, eliminating or minimizing conflicts with other public uses and/or refuge management activities, and protecting public safety.

The proposed actions involving resident wildlife hunting include three refuges allowing this type of hunting for the first time and expanding this type of hunting on six refuges. Please consult the Cumulative Impacts Report at the site referenced above for more in-depth discussion, but in sum, none of the known, estimated or projected harvests of big game, small or upland game species resulting from the proposed hunting activities on refuges were determined or expected to havesignificant adverse direct, indirect or cumulative impacts to any big game, small, or upland wildlife population.

The Migratory Bird Conservation Act of 1929 (16 U.S.C. 715et seq.) authorizes acquisition of refuges as “inviolate sanctuaries” where the birds could rest and reproduce in total security. In 1949, this “inviolate sanctuary” concept was modified by an amendment to the Migratory Bird Hunting and Conservation Stamp Act which permitted hunting on up to 25 percent of each inviolate refuge. Another amendment to the Migratory Bird Hunting and Conservation Stamp Act in 1958 increased the total area of an inviolate refuge that could be opened for hunting to up to 40 percent.

Whether an area is an inviolate sanctuary is a function of the mechanism of its creation. If a refuge was acquired as an inviolate sanctuary, only 40 percent of the refuge area may be opened at one time for hunting of migratory game birds. However, if the refuge was not acquired as an inviolate sanctuary, 100 percent of the refuge area may be opened for hunting.

The Fish and Wildlife Improvement Act of 1978 amended section 6 of the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd) to provide for the opening of all or any portion of an inviolate sanctuary to the taking of migratory birds if taking is determined to be beneficial to the species. Such opening of more than 40 percent of the inviolate sanctuary to hunting is determined by species. This amendment refers to inviolate sanctuaries created in the past or to be created in the future. It has no application to areas acquired for other management purposes.

Most refuge hunt programs have established refuge-specific regulations to improve the quality of the hunting experience as well as provide for quality wildlife-dependent experiences for other users. Refuge visitor use programs are adjusted, as needed to eliminate or minimize conflicts between users. Virtually all of the refuges open to hunting and other wildlife-dependent recreational uses use time and space zoning as an effective method to reduce conflicts between hunting and other uses. Eliminating or restricting overlap between hunt areas and popular areas from other wildlife-dependent recreation allows opportunity for other users to safely enjoy the refuge in nonhunted areas during hunting seasons. Restrictions on the number of hunters and the time in which they could hunt are also frequently used to minimize conflicts between user groups. Public outreach accompanying the opening of hunting seasons is frequently used to make other wildlife-dependent recreational users aware of the seasons and minimize conflicts. We made no changes to the regulations as a result of this comment.

Effective Date

This rule is effective upon publication in theFederal 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 July 5, 2011, 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 publication.

Amendments to Existing Regulations

This document codifies in the Code of Federal Regulations amendments to 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, 28, 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 2011-2012 Hunting/Fishing Season National Wildlife Refuge State Migratory bird hunting Upland game hunting Big game hunting Fishing Arapaho CO Already open Already open D (elk) Already open. Bayou Sauvage LA B Closed Closed Already open. Coldwater River MS B B B Already open. Crane Meadows MN Closed Closed A (deer/turkey) Closed. Currituck NC Already open Closed B Closed. Minnesota Valley MN C C C Already open. Northern Tallgrass Prairie MN/IA C/D C/D C Closed. Ouray UT Already open D (turkey) D (elk) Already open. Sherburne MN C Already open D (turkey)/C Already open. Trinity River TX Already open C C Already open. A = New refuge opened. B = New activity on a refuge previously opened to other activities. C = Refuge already open to activity but added new land/waters which increased activity. D = Refuge already open to activity but added new species to hunt.

We are making an administrative change that correctly reflects that Trempealeau National Wildlife Refuge in the State of Wisconsin is closed to Upland Game Hunting. The refuge has never been open to that activity, and we are correcting the record with this change.

We are also adding Tishomingo Wildlife Management Unit in the State of Oklahoma to the list of refuges open to hunting and or fishing in 50 CFR part32. We now correctly reflect how Tishomingo National Wildlife Refuge's (an overlay refuge where the land is owned by the U.S. Army Corps of Engineers) hunting opportunities differ from those of the Tishomingo Wildlife Management Unit. The Tishomingo National Wildlife Refuge, managed by refuge staff, is open only to big game hunting and sport fishing. The Tishomingo Wildlife Management Unit, managed by the Oklahoma Wildlife Conservation Department under a 1957 agreement entered into between the U.S. Army Corps of Engineers and the Secretary of the Interior, is open to all three hunting opportunities (migratory game bird, upland game, and big game) and sport fishing.

The changes for the 2011-12 hunting/fishing season noted in the chart above are each based on a complete administrative record which, among other detailed documentation, also includes a hunt plan, a compatibility determination, and the appropriate National Environmental Policy Act (NEPA; 42 U.S.C. 4321et seq.)analysis, all of which were the subject of a public review and comment process. These documents are available upon request.

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/waterscience/fish/.

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”).

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. 601et 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 one national wildlife refuge to the list of refuges open to hunting and increases hunting activities on nine national wildlife refuges. As a result, visitor use for wildlife-dependent recreation on these national wildlife refuges will change. If the refuges establishing new programs were a pure addition to the current supply of such activities, it would mean an estimated increase of 4,750 user days (one person per day participating in a recreational opportunity) (Table 2). Because the participation trend is flat in these 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.

Table 2—Estimated Change in Recreation Opportunities in 2011/2012 Refuge Additional
  • user days
  • Additional
  • expenditures
  • Arapaho 40 $4,337 Bayou Sauvage 672 72,865 Coldwater River 400 43,372 Crane Meadows 55 5,964 Currituck 400 43,372 Minnesota Valley 2,818 305,555 Northern Tallgrass Prairie 75 8,132 Ouray 100 10,843 Sherburne 50 5,421 Trinity River 140 15,180 Total 4,750 515,041

    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 otherincidental expenses. Using the average expenditures for these categories with the maximum expected additional participation of the Refuge System yields approximately $515,000 in recreation-related expenditures (Table 2). By having ripple effects throughout the economy, these direct expenditures are only part of the economic impact of these recreational activities. 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 $1.4 million (2010 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 $1.4 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 about $275,000 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 $515,000 to be spent in total in the refuges' local economies. The maximum increase ($1.4 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 2011/2012 [Thousands, 2010 dollars] Refuge/county(ies) Retail trade
  • in 2007
  • (2010 $ )
  • Estimated
  • maximum addition from new activities
  • Addition as
  • % of total
  • Establishments
  • in 2008
  • Establ. with
  • <10 emp in 2008
  • Arapaho Jackson, CO $23,099 $4.3 0.019 13 10 Bayou Sauvage Orleans Parish, LA 3,241,340 72.9 0.002 1,201 983 Coldwater River Tallahatchie, MS 67,735 21.7 0.032 40 34 Quitman, MS 29,478 21.7 0.074 21 18 Crane Meadows Morrison, MN 430,771 6.0 0.001 135 94 Currituck Currituck, NC 314,767 43.4 0.014 142 118 Minnesota Valley Hennepin MN 26,568,279 76.4 0 4,295 2,670 Carver MN 962,544 76.4 0.008 223 143 Scott MN 1,394,907 76.4 0.005 349 234 Dakota MN 6,158,226 76.4 0.001 1,169 717 Northern Tallgrass Prairie Jasper, IA 326,707 1.2 0 120 79 Kossuth, IA 233,531 1.2 0 99 78 Lincoln, MN 63,331 1.2 0.002 37 27 Lyon, MN 451,824 1.2 0 134 96 Otter Tail, MN 840,187 1.2 0 277 204 Rock, MN 130,128 1.2 0.001 47 33 Stevens, MN 202,798 1.2 0.001 53 34 Ouray Unitah, UT 550,293 10.8 0.002 137 85 Sherburne Sherburne, MN 1,006,876 5.4 0.001 207 134 Trinity River Liberty, TX 778,776 15.2 0.002 200 143

    With the small change in overall spending anticipated from this rule, it is unlikely that a substantial number of small entities will have more than a small impact from the spending change near the affected refuges. Therefore, we certify that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). An initial/final Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

    Small Business Regulatory Enforcement Fairness Act

    The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. We anticipate no significantemployment or small business effects. This rule:

    a. Will not have an annual effect on the economy of $100 million or more. The minimal impact will be scattered across the country and will most likely not be significant in any local area.

    b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This rule will have only a slight effect on the costs of hunting opportunities for Americans. If the substitute sites are farther from the participants' residences, then an increase in travel costs will occur. The Service does not have information to quantify this change in travel cost but assumes that, since most people travel less than 100 miles to hunt, the increased travel cost will be small. We do not expect this rule to affect the supply or demand for hunting opportunities in the United States and, therefore, it should not affect prices for hunting equipment and supplies, or the retailers that sell equipment.

    c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. This rule represents only a small proportion of recreational spending at national wildlife refuges. Therefore, this rule wi