# 2020-2021 Station-Specific Hunting and Sport Fishing Regulations

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-16003

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 31, 2020
- **Citation:** 85 FR 54076

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 32, 36, and 71
[Docket No. FWS-HQ-NWRS-2020-0013; FXRS12610900000-201-FF09R20000]
RIN 1018-BE50
2020-2021 Station-Specific Hunting and Sport Fishing Regulations

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are opening, for the first time, eight National Wildlife Refuges (NWRs) that were previously closed to hunting and sport fishing. In addition, we are opening or expanding hunting and sport fishing at 89 other NWRs and adding pertinent station-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2020-2021 season. We are also opening hunting or sport fishing on nine units of the National Fish Hatchery System (NFHs). We are also adding pertinent station-specific regulations that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing at these nine NFHs for the 2020-2021 season. Further, we are opening 41 limited-interest easement NWRs in North Dakota for upland and big game hunting and sport fishing in accordance with State regulations. Access to these NWRs is controlled by the current landowners, and, therefore, they are not open to the public unless authorized by the landowner. We are also making regulatory changes to existing station-specific regulations in order to reduce the regulatory burden on the public, increase access for hunters and anglers on Service lands and waters, and comply with a Presidential mandate for plain language standards. Lastly, we are prohibiting domestic sheep, goat, and camelid pack animals on the Arctic National Wildlife Refuge.

DATES:

This rule is effective August 31, 2020.

FOR FURTHER INFORMATION CONTACT:

Katherine Harrigan, (703) 358-2440.

SUPPLEMENTARY INFORMATION:

Background

The National Wildlife Refuge System Administration Act of 1966 closes NWRs 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 the use is compatible with the purposes of the refuge and National Wildlife Refuge System mission. The action also must be in accordance with provisions of all laws applicable to the areas, developed in coordination with the appropriate State fish and wildlife agency(ies), consistent with the principles of sound fish and wildlife management and administration, and otherwise in the public interest. These requirements ensure that we maintain the biological integrity, diversity, and environmental health of the Refuge System for the benefit of present and future generations of Americans.

We annually review hunting and sport fishing programs to determine whether to include additional stations or whether individual station 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 station-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 station purposes or the Service'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), and on hatcheries in part 71 (50 CFR part 71). We regulate hunting and sport fishing to:

• Ensure compatibility with refuge and hatchery purpose(s);

• Properly manage fish and wildlife resource(s);

• Protect other values;

• Ensure visitor safety; and

• Provide opportunities for fish- and wildlife-dependent recreation.

On many stations where we decide to allow hunting and sport fishing, our general policy of adopting regulations that are identical to State hunting and sport fishing regulations is adequate in meeting these objectives. On other stations, we must supplement State regulations with more-restrictive Federal regulations to ensure that we meet our management responsibilities, as outlined under Statutory Authority, below. We issue station-specific hunting and sport fishing regulations when we open wildlife refuges and fish hatcheries to migratory game bird hunting, upland game hunting, big game hunting, or sport fishing. These regulations may 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.

In the case of this rule, we are issuing one regulation for an Alaska refuge. In 2015, the Arctic National Wildlife Refuge finalized their comprehensive conservation plan (CCP), which included a prohibition on domestic sheep, goat, and camelid use on the refuge based on the risk of disease transmission to Dall's sheep. Any closures or restrictions of recreational uses on Alaska refuges must go through extensive public outreach and comment, including publication in the
Federal Register
.

Statutory Authority

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]) governs the administration and public use of refuges. The Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) (Recreation Act) governs the administration and public use of refuges and hatcheries. The Alaska National Interest Lands Conservation Act (ANILCA, 16 U.S.C. 3101,
et seq.
) governs the administration of public lands, including refuges, in Alaska.

Amendments enacted by the Improvement Act were built upon the Administration Act in a manner that provides an “organic act” for the Refuge System, similar to organic acts 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 and Hatchery 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 or hatchery 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 station-specific regulations to ensure the compatibility of the programs with the purpose(s) for which we established the refuge or hatchery and the Refuge and Hatchery System mission. We ensure initial compliance with the Administration Act and the Recreation Act for hunting and sport fishing on newly acquired land through an interim determination of compatibility made at or near the time of acquisition. These regulations ensure that we make the determinations required by these acts prior to adding refuges to the lists of areas open to hunting and sport fishing in 50 CFR parts 32 and 71. We ensure continued compliance by the development of CCPs, step-down management plans, and by annual review of hunting and sport fishing programs and regulations.

For refuges in Alaska, we regulate the uses of refuge lands in compliance with ANILCA. Section 1110(a) of ANILCA defines our authority to regulate the use of nonmotorized surface transportation in Alaska. Under that section of ANILCA, we may close an area on a temporary or permanent basis to these nonmotorized transportation uses when we find that such use would be detrimental to the resource values of the area. This section of ANILCA also provides that if an NWR in Alaska needs to close or restrict a public use or mode of access in order to protect resources of the refuge, we must do extensive public outreach and provide opportunities for public comment as described by section 1110(a) of ANILCA and the associated implementing regulations (
i.e.,
43 CFR 36.11 and 50 CFR 36.42).

Summary of Comments and Responses

On April 9, 2020, we published in the
Federal Register
(85 FR 20030) a proposed rule to open hunting or sport fishing at 9 NFHs, open 41 limited-interest easement NWRs in North Dakota, open 8 NWRs that are currently closed to hunting and sport fishing, expand hunting and sport fishing at 89 other NWRs, and add pertinent station-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2020-2021 season. We accepted public comments on the proposed rule for 60 days, ending June 8, 2020. By that date, we received 3,177 comments on the proposed rule. Among these comments were 21 that were either intended for a different Department of the Interior rulemaking or otherwise irrelevant to this rule. We discuss the remaining 3,156 comments we received below by topic. As we received 53 comments specific to the Arctic NWR regulation prohibiting domestic sheep, goats, and camelids on the refuge, those comments will be discussed by topic after all other comments. Beyond our responses below, additional station-specific information on how we responded to comments on particular hunting or fishing opportunities at a given refuge or hatchery can be found in that station's final hunting and/or fishing package, each of which can be located online here:
https://www.fws.gov/refuges/hunting/rules-regulations-and-improved-access/.

Comment (1):
A few comments were wholly or in part a request that we extend the 60-day public comment period for the proposed rule; a couple of these comments specifically mention the current viral pandemic as a reason for the requested extension.

Our Response:
We declined to extend the comment period for our April 9, 2020, proposed rule (85 FR 20030). The standard public comment period for the annual rule proposing amendments to the regulations governing hunting and sport fishing on NWRs and NFHs is 30 days. The Service provided a 60-day comment period, which allowed for the submission of more than 3,000 public comments, for the 2020-2021 proposed rule. We recognize the impact of COVID-19, but believe that 60 days was an adequate amount of time for all interested parties to provide their comments to us. Moreover, extending the comment period could have disrupted coordination with State agencies or prevented the publication of a final rule in time for the start dates of relevant hunting and sport-fishing seasons, which would have effectively delayed the applicability of this rule.

Comment (2):
We received a substantial number of comments expressing general support for the proposed changes in the rule. Of the 3,177 comments on the rule, 920 were in general support of the proposed changes. These comments of general support either expressed appreciation for the increased hunting and fishing access in the rule overall, expressed appreciation for increased access at particular refuges, or both. In addition to this general support, some commenters requested additional hunting and fishing opportunities at specific stations or generally in several States.

Our Response:
Hunting and fishing on U.S. Fish and Wildlife Service lands is a tradition that dates back to the early 1900s. In passing the Improvement Act, Congress reaffirmed that the Refuge System was created to conserve fish, wildlife, plants, and their habitats, and would facilitate opportunities for Americans to participate in compatible wildlife-dependent recreation, including hunting and fishing on Refuge System lands. We prioritize wildlife-dependent recreation, including hunting and fishing, when doing so is compatible with the purpose of the refuge and the mission of the NWRS. Hunting or fishing on hatcheries, unlike Refuge System lands, is authorized, “when such activity is not detrimental to the propagation and distribution of fish or other aquatic wildlife” (50 CFR 71.1).

We will continue to open and expand hunting and sport fishing opportunities across refuges and hatcheries; however, as detailed further in our response to
Comment (3),
below, opening or expanding hunting or fishing opportunities on Service lands is not a quick or simple process. The annual regulatory cycle begins in June or July of each year for the following hunting and sport fishing season (the planning cycle for this 2020-2021 final rule began in June 2019). This annual timeline allows us time to collaborate closely with our State, tribal, and territorial partners, as well as other partners including nongovernmental organizations, on potential opportunities. It also provides us with time to complete environmental analyses and other requirements for opening or expanding new opportunities. Therefore, it would be impracticable for the Service to complete multiple regulatory cycles in one calendar year due to the logistics of coordinating with various partners. Once we determine that a hunting or

sport fishing opportunity can be carried out in a manner compatible with individual station purposes and objectives, we work expeditiously to open it.

We did not make any changes to the rule as a result of these comments.

Comment (3):
Many commenters expressed general opposition to any hunting or fishing in the Refuge System. Of the 3,177 comments on the rule, 1,939 were in general opposition to the proposed changes. In many cases, commenters stated that hunting was antithetical to the purposes of a “refuge,” which, in their opinion, should serve as an inviolate sanctuary for all wildlife. Some of these commenters generically opposed expanded or new hunting or fishing opportunities at specific stations.

Our Response:
The Service prioritizes facilitating wildlife-dependent recreational opportunities, including hunting and fishing, on Service land in compliance with applicable Service law and policy. For refuges, the Administration Act, as amended, stipulates that hunting (along with fishing, wildlife observation and photography, and environmental education and interpretation), if found to be compatible, is a legitimate and priority general public use of a refuge and should be facilitated (16 U.S.C. 668dd(a)(3)(D)). Thus, we only allow hunting of resident wildlife on NWRs 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. For hatcheries, we allow hunting and fishing when such activity is determined not to be detrimental to the propagation and distribution of fish or other aquatic wildlife (50 CFR 71.1). For all 147 stations opening and/or expanding hunting and/or fishing in this rule, we determined that the proposed actions were compatible or would not have detrimental impacts.

Each station manager makes a decision regarding hunting and fishing opportunities only after rigorous examination of the available information, consultation and coordination with States and tribes, and compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.
) and section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
et seq.
), as well as other applicable laws and regulations. The many steps taken before a station opens or expands a hunting or fishing opportunity on the refuge ensure that the Service does not allow any opportunity that would compromise the purpose of the station or the mission of the agency.

Hunting of resident wildlife on NWRs 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 more restrictive in order to help meet specific refuge objectives. These objectives 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 word “refuge” includes the idea of providing a haven of safety for wildlife, and as such, hunting might seem an inconsistent use of the Refuge System. However, again, the Administration Act stipulates that hunting, if found compatible, is a legitimate and priority general public use of a refuge. Furthermore, we manage refuges to support healthy wildlife populations that in many cases produce harvestable surpluses that are a renewable resource. As practiced on refuges, hunting and fishing do not pose a threat to wildlife populations. It is important to note that taking certain individuals through hunting does not necessarily reduce a population overall, as hunting can simply replace other types of mortality. In some cases, however, we use hunting as a management tool with the explicit goal of reducing a population; this is often the case with exotic and/or invasive species that threaten ecosystem stability. Therefore, facilitating hunting opportunities is an important aspect of the Service's roles and responsibilities as outlined in the legislation establishing the Refuge System, and the Service will continue to facilitate these opportunities where compatible with the purpose of the specific refuge and the mission of the Refuge System.

We did not make any changes to the rule as a result of these comments.

Comment (4):
We received a comment from the Shoshone-Bannock Tribes expressing concern about public safety, compatibility with nonconsumptive uses, and the cultural value of certain areas to the tribes at Minidoka NWR. The tribes also requested that we list the 1868 Fort Bridger Treaty between the Shoshone-Bannock Tribes and the Federal Government in the background section of our refuge and NEPA planning documents for Minidoka NWR as a source of applicable law.

Our Response:
We address the public safety and compatibility with nonconsumptive uses concerns of all commenters as a common topic of interest below, in our responses to Comments
(19)
and
(20),
respectively. As for the tribes' concern about impacts on culturally valuable areas, we understand the concern and note that protection of cultural resources, including religious, sacred, and ceremonial sites, archaeological sites, and traditional use areas, is a priority for Minidoka NWR. Moreover, protection of these resources is mandated under Federal law and policy, including, for example, NEPA, the National Historic Preservation Act (54 U.S.C. 300101
et seq.
), and the Archaeological Resources Protection Act (16 U.S.C. 470aa
et seq.
). Staff monitors cultural resources and will note any unusual activity or disturbance. Our cultural resource staff will visit the resources and note any changes in condition, taking appropriate action. The cultural resources staff will also be notified of discovery of previously unknown resources and will ensure compliance with all applicable regulations and procedures.

As a result of the tribes' request with respect to the 1868 Fort Bridger Treaty, while we note that the treaty and our obligations under it are discussed in the relevant environmental analysis documents and the elk hunt plan for the Minidoka NWR, we will amend these documents to acknowledge the treaty in the background section and in additional key locations throughout the documents.

Comment (5):
We received a comment from the Tohono O'odham Nation concerning coyote hunting, “trophy hunting,” impacts on wilderness areas, impacts on the endangered Sonoran pronghorn antelope, and impacts on cultural resource areas at Cabeza Prieta NWR.

Our Response:
We respond generally to all commenters who raised predator hunting (including coyote), “trophy hunting,” and impact on wilderness concerns at any particular refuge or across the Refuge System, in our responses to Comments
(15), (16),
and
(17),
respectively. As to the effect on Sonoran pronghorn (
Antilocapra americana sonoriensis
) from hunting activities at Cabeza Prieta NWR, we fully assessed all hunts in this rule as part of our environmental analysis processes for the refuge and did not proceed with any hunts that could be expected to have an adverse affect on the pronghorn or any other endangered or threatened species. Furthermore, we have provided mitigation measures to

ensure that the impacts to pronghorn, in particular, are minimized. There is a 0.25-mile (0.4-kilometer) no-shoot/hunting buffer zone around the Sonoran pronghorn captive breeding pen. These no-shoot/hunting zones will protect the endangered Sonoran pronghorn and personnel at the breeding facility. The zone will also minimize the negative effects of hunting-related human activity on captive Sonoran pronghorn. Also, mule deer hunters will be provided with educational materials to prevent accidental take of Sonoran pronghorn.

In recognition of the cultural concerns expressed by the Tohono O'odham Nation, in this final rule, we have reduced the proposed hunting areas by 30,000 acres and rescinded proposed hunting of three specific species of cultural importance to the nation on Cabeza Prieta NWR. We will consult with the Tohono O'odham on how these acres and species may be considered for opening to hunting in the future, without adverse effects to cultural resources on the refuge.

Comment (6):
The Hopi Tribe submitted a comment requesting an extension of the public comment period for our April 9, 2020, proposed rule (85 FR 20030), citing the COVID-19 pandemic as a reason for an extension.

Our Response:
At Comment
(1)
above, we responded generally to the requests of those who submitted comments requesting an extension of the proposed rule's comment period, including those who specifically based their requests on the circumstances of the current viral pandemic. Our response reflects what we stated in letters to organizations that requested an extension of the comment period by letter separately from the public comment process.

Comment (7):
We received comments from 20 State agencies, one regional association of fish and wildlife agencies, and one national association of fish and wildlife agencies either through the public comment on our April 9, 2020, proposed rule (85 FR 20030), the NEPA public comment process at one or more stations, or both. Among these comments, we received generally supportive comments with expressions of interest in continued collaboration from the Texas Parks and Wildlife Department; North Carolina Wildlife Resources Commission; Oklahoma Department of Wildlife Conservation; West Virginia Division of Natural Resources; Washington Department of Fish and Wildlife; Oregon Department of Fish and Wildlife; Nebraska Game and Parks Commission; Pennsylvania Fish and Boat Commission; Missouri Department of Conservation; Wyoming Game and Fish Department; Nevada Department of Conservation and Natural Resources; Kansas Department of Wildlife, Parks & Tourism; and Illinois Department of Natural Resources. We received comments from the Alaska Department of Fish & Game and from the Association of Fish & Wildlife Agencies (AFWA) that were also generally supportive of the rule but objected to the rule's approach to the State of Alaska, in particular the inclusion of a prohibition on certain pack animals at Arctic NWR. The Northeast Association of Fish & Wildlife Agencies expressed concerns about consistency and alignment with State regulations with respect to our regulations on the use of hunting dogs, in addition to expressing support for other parts of the rule. The remaining State agencies expressed support for much of the rule as well, but raised one or more concerns or requests for consideration on the proposed rule: The Georgia Department of Natural Resources requested further alignment of our regulations with State regulations. The South Dakota Department of Game, Fish and Parks submitted two comments;one expressing general support and the other requesting additional consideration for proposed hunts at LaCreek NWR. The Massachusetts Division of Fisheries & Wildlife raised concerns about limitations on certain hunts at stations within the State. The Idaho Department of Fish and Game expressed concerns about the Minidoka and Camas NWRs, indicating they are “ready to assist” with the CCP process for Minidoka NWR. The Arizona Department of Fish and Game advocated for further alignment with Arizona's hunting regulations, including on falconry as a method of take. The Florida Fish and Wildlife Conservation Commission expressed concerns about the impacts of off-road vehicle use on Everglades Headwaters NWR.

Our Response:
The Service appreciates the support of, and is committed to working with, our State partners to identify additional opportunities for expansion of hunting and sport fishing on Service lands and waters. Our response to the concerns of the State of Alaska and AFWA are fully addressed in this comment summary and response under
Alaska,
below. Our response to the concerns of the Northeast Association of Fish and Wildlife Agencies is detailed at Comment
(24).

In response to the request by the Georgia Department of Natural Resources, we made a change to the rule that fully aligns hours for alligator hunting with State regulations. In response to the concerns of the South Dakota Department of Game, Fish and Parks, we revised the rule to allow the use of electric trolling motors on Pool #10 and broader hunter access. In response to the concerns of the Massachusetts Division of Fisheries & Wildlife, we are committed to working with the State in future rulemakings as we consider hunting opportunities on stations within the State while also balancing this with due consideration of other recreational uses and biological and environmental factors. In response to the concerns of the Idaho Department of Fish and Game, we will consider their recommendations and plan to consult with them in shaping our proposed rule for 2021-2022. We also welcome their cooperation and assistance in completing a CCP for Minidoka NWR. In response to the concerns of the Arizona Department of Fish and Game, we specifically use the term “archery,” as requested, in our regulations for Cibola NWR, and we respond to their, and another commenter's, concerns about falconry at Comment
(23).
We will continue to regularly consult and communicate with the State as requested in the comment. In response to the concerns of the Florida Fish and Wildlife Conservation Commission, we will consider refuge use of off-road vehicles by hunters and anglers and how to balance impacts against other uses at Everglades Headwaters NWR.

Comment (8):
Several commenters stated that we are improperly deferring to State wildlife management authority with the proposed hunting and fishing regulation changes.

Our Response:
The Service works closely with our State partners in managing hunting and fishing programs on Service lands. We generally allow hunting or fishing of wildlife on refuges and hatcheries consistent with State regulations, including seasons and bag limits. Refuge-specific hunting and fishing regulations can be more restrictive (but not more liberal) than State regulations and often are more restrictive in order to help meet specific refuge objectives. Our authority to do so stems from the Administration Act, as amended, which states that when the Secretary determines that a proposed wildlife-dependent recreational use is a compatible use within a refuge, that activity should be facilitated, subject to such restrictions or regulations as may be necessary, reasonable, and appropriate (16 U.S.C. 668dd(a)(3)(D)). The Administration Act further provides that regulations permitting hunting or fishing of fish and resident

wildlife within the Refuge System shall be, to the extent practicable, consistent with State fish and wildlife laws, regulations, and management plans (16 U.S.C. 668dd(m)). For hatcheries, hunting or fishing programs must be mutually agreed upon and managed with the States (50 CFR 70.1).

We did not make any changes to the rule as a result of these comments.

Comment (9):
We received several comments that alleged the proposed rule is, or certain parts of the proposed rule are, a violation of the Service's mandate to 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)).

Our Response:
We do not allow hunting on a refuge if it is found incompatible with that individual refuge's purposes or with the mission of the Refuge System. Part of the mission of the Refuge System is to 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)). Therefore, each Service station manager uses his or her “sound professional judgment” (see the definition of this term in the Service Manual at 603 FW 2.6.U., available online at
https://www.fws.gov/policy/603fw2.html
) in making these inherently complex management decisions to ensure that each proposed action complies with this mandate. Each manager incorporates field experience, knowledge of refuge resources, considerations of the refuge's role within an ecosystem, applicable laws, and best available science in making these decisions. Service biologists and wildlife professionals, in consultation with the State, determine the optimal number of each game animal that should reside in an ecosystem and then establish hunt parameters (
e.g.,
bag limits, sex ratios) based on those analyses. We carefully consider how a proposed hunt fits with individual refuge goals, objectives, and strategies before allowing the hunt. The new or expanded hunting and/or fishing opportunities in this rule are not expected to individually or collectively result in significant adverse direct, indirect, or cumulative impacts to hunted populations of migratory birds and resident wildlife, nonhunted migratory and resident wildlife, endangered and threatened species, habitat and plant resources, or other natural resources. We analyzed these impacts not only in each refuge's NEPA document, but also in the 2020-2021 cumulative impacts report.

We did not make any changes to the rule as a direct result of these comments, but changes that we made for other reasons may reduce the potential for even minimal biological and environmental impacts.

Comment (10):
We received several comments expressing concern that specific stations amended either their compatibility determinations (CDs) or CCPs without sufficient explanation in order to open or expand hunting or fishing opportunities on a refuge.

Our Response:
Based on these comments, we have reviewed our CDs and CCPs in connection with all opening and expansions in this rule, and, as a result, for each opening or expansion we have either modified the relevant regulations or determined that no changes were necessary. Both the Administration Act (16 U.S.C. 668dd(e)) and ANILCA anticipate that revisions may need to be made to CCPs from “time to time” based on new information. Service policy allows minor revisions to CCP objectives and strategies as long as they do not significantly change the management direction of the refuge (603 FW 2). A refuge manager always may reevaluate the compatibility of a use at any time, but must review a CD every 15 years for wildlife-dependent recreational opportunities (603 FW 2.11.H.(1)). When making revisions to a CCP or CD we must document the reasons for the change, make the revised CCP publicly available or put forward the CD for public comment, and comply with NEPA and the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
et seq.
), as amended, for any resulting changes in management actions taken by the Service. In the case of this rule, we took the additional step of inviting public comment on even minor changes to CCPs.

We did make one regulatory change to the rule based on these comments. Specifically, in the regulations governing Quivira NWR in Kansas, we expressly added a requirement for a State-issued permit for the take of furbearers to clarify consistency with the refuge's CCP and with the Kansas Department of Wildlife, Parks and Tourism.

For any nonregulatory changes based on these comments, such as clarification in environmental analysis documents, please see the specific station's response to comments, available online here:
https://www.fws.gov/refuges/hunting/rules-regulations-and-improved-access/.

Comment (11):
We received several comments concerned with the direct, indirect, and cumulative impacts of the April 9, 2020, proposed rule on migratory birds, particularly as related to the requirements of the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712), the Service's February 3, 2020, proposed rule defining the scope of the MBTA (85 FR 5915), and that proposed rule's associated draft environmental impact statement (EIS). A few of these commenters were particularly concerned about those refuges whose purposes include “inviolate sanctuaries for migratory birds” or that have been designated as Important Bird Areas (IBAs) by the Audubon Society.

Our Response:
All of the migratory bird hunting opportunities in the Service are done within the frameworks set by the Service in compliance with the MBTA. These frameworks set season lengths, bag limits, and areas for migratory game bird hunting and ensure that hunting will not have adverse impacts on the populations of the various species of migratory birds through rigorous biological monitoring, information collection, and data review. To determine the appropriate frameworks for each species, the Service considers 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 frameworks are established for season lengths, bag limits, and areas for migratory game bird hunting, States may select season dates, bag limits, and other regulatory options for the hunting seasons. States may always be more conservative in their selections than the Federal frameworks, but never more liberal. For more information on this process, see the 2020-2021 cumulative impacts report on
http://www.regulations.gov
under Docket No. FWS-HQ-NWRS-2020-0013.

Although it does not directly affect migratory bird hunting, the Service is developing a rulemaking that limits the scope of the Migratory Bird Treaty Act (MBTA) to actions directed at migratory birds, thus excluding incidental take as a violation of the MBTA. The draft EIS associated with this proposed rule analyzed the impacts of incidental take on migratory bird populations at a continental scale and found that the preferred alternative, to promulgate regulations that define the scope of the MBTA to exclude incidental take, would likely lead to an increase in incidental take over time, without specifying what bird taxa may be the most affected or where. Consistent with this draft EIS, the Service anticipates that the proposed MBTA rule will have

minor impacts to migratory game birds that occur on NWRs. If the proposed rule defining the scope of the MBTA becomes final and impacts to migratory game birds occur as a result, we anticipate any impacts that might occur as a result of that proposed rule will be detected through the system of population monitoring and modeling cooperatively maintained by the Flyways. Any such impacts would then be addressed by adapting, as needed, migratory game bird management to meet obligations under the MBTA.

The expansion of hunting of migratory game birds on NWRs indicate that the proposed harvests, or intentional take, of each species will constitute a negligible component of both national and flyway harvest. Migratory game bird hunting regulations are established within the above discussed frameworks compliant with NEPA to ensure that adverse impacts will not accumulate over time; thus, the proposed harvest will have a negligible impact on migratory bird resources within NWRs.

In addition to all hunting for migratory game birds being set within this national framework, each station must also ensure that the hunting or fishing opportunity is compatible, or in the case of NFHs not detrimental, to the purpose of that station, and comply with applicable provisions of NEPA, the ESA, and other applicable laws and policy before opening or expanding migratory bird game hunting. This thorough process ensures that the Service has analyzed the potential impacts of the proposed hunting or fishing opportunity and determined that the opportunity would not have a significant impact on any migratory bird species, not just the targeted species.

Where inviolate sanctuaries occur on NWRs, all uses must be evaluated for appropriateness and, if necessary, compatibility. The language within the Administration Act only applies to those lands with the designation of inviolate sanctuary for migratory birds. With this in mind, other uses (
e.g.,
big game hunting, hiking, auto tours, etc.) can be allowed as long as they are compatible. When determining compatibility, the Service must consider the high bar that the inviolate sanctuary designation established.

In addition, refuges with this designation will have to evaluate the influence of uses occurring or potentially occurring on other portions of the refuge and how they may affect the inviolate sanctuaries. Although this designation sets a higher level of consideration, it is clear that Congress intended for these areas to be considered for use when compatible. In the case of IBA designations from the Audubon Society, while several refuges in the rule do have these IBA designations, these designations do not place any additional legal restrictions related to migratory birds on management of these refuges. As discussed previously, each station goes through several different processes, including compatibility determinations, NEPA compliance, and ESA compliance to ensure that the hunting and fishing opportunities proposed would have no significant impacts on populations of migratory birds in compliance with the Service's mandates under the MBTA, Administration Act, or other applicable laws and policies.

We did not make any changes to the rule as a result of these comments.

Comment (12):
We received several comments arguing that we should have prepared an environmental impact statement (EIS) instead of station-specific environmental analyses combined with a national cumulative impact report. Some of these comments also argued that specific stations should have prepared an EIS where we prepared an environmental assessment (EA) or an EA where we prepared a categorical exclusion.

Our Response:
The Service disagrees with the assertion that we should prepare an EIS before proposing expanded hunting and fishing opportunities on refuges or hatcheries. We completed individual EAs for, or applied categorical exclusions to, 147 refuges and hatcheries, in compliance with NEPA, to evaluate the impacts of opening or expanding hunting and fishing opportunities on the stations through this rulemaking. These EAs and categorical exclusions underwent regional and national review to address and consider these actions from a local, regional, multi-State, and/or flyway perspective, and to consider the cumulative impacts from this larger geographical context. The 2020-2021 cumulative impacts report concludes, after analyzing the impacts, collectively, of all EAs and categorical exclusions prepared in connection with this rule, that the rule would not have significant impacts at the local, regional, or national level. The commenters who have raised these environmental analysis concerns have provided no additional information that would change this analysis or our conclusion. As discussed above, we annually conduct management activities on refuges and hatcheries that minimize or offset impacts of hunting and fishing on physical and cultural resources, including establishing designated areas for hunting; restricting levels of use; confining access and travel to designated locations; providing education programs and materials for hunters, anglers, and other users; and conducting law enforcement activities.

In this rulemaking, the Service is expanding opportunities for recreational hunting and fishing. Expanding opportunities does not necessarily result in increased impacts to refuge resources. We anticipate that for some refuges, these expansions will not result in changes in usage of the refuge. In other cases, these expansions may lead to some increase in use of refuges, but these changes would likely by minor. Opening of new refuges may attract people to the refuge, but these hunters and/or anglers were likely already participating elsewhere on State or other Federal lands. Overall, considering the decreasing trends in hunting and fishing generally, and decreasing trends of these activities on refuges specifically, we do not expect this final rule to have a significant impact on the environment. As noted in our cumulative impacts report, hunter participation trends have been generally declining, some refuges attract a very small number of participants, and often participation rates decline over the course of a season.

Finally, a Federal court found that this approach, using a bottom-up analysis to assess the cumulative impact of increased hunting and fishing across the entire Refuge System, was an appropriate way for the Service to analyze the impacts of the rule in compliance with NEPA (see
Fund for Animals
v.
Hall,
777 F. Supp. 2d 92, 105 (D.D.C. 2011)).

In response to comments, we reviewed all EAs and categorical exclusions. The Service disagrees with the assertion that, for any of the stations in this rule, we should have prepared an EIS instead of an EA or an EA instead of a categorical exclusion. We did, however, determine that the use of a categorical exclusion to expand existing migratory bird and upland game hunting at Alamosa and Monte Vista NWRs may require additional consideration. While this does not result in any changes to the rule that are codified in the Code of Federal Regulations, the proposed expansions of 1,079 acres at Alamosa NWR and 472 acres at Monte Vista NWR for migratory bird and upland game hunting will not be adopted.

We did not make any changes to the rule as result of these comments.

Comment (13):
Many commenters expressed concern over the use of lead ammunition and/or lead fishing tackle on refuges and hatcheries. Some

individual commenters objected to these potential sources of lead at a particular refuge or hatchery, and multiple organizations were concerned about lead nationwide and referred us to scientific literature on the subject.

Our Response:
The Service shares the commenters' concerns regarding the bioavailability of lead in the environment. See,
e.g.,
Nancy Golden, et al., “A Review and Assessment of Spent Lead Ammunition and Its Exposure and Effects to Scavenging Birds in the United States,” which is available online at
https://www.fws.gov/midwest/refuges/Review%20and%20Assessment%20paper.pdf.
Historically, the principal cause of lead poisoning in waterfowl was the collection of high densities of lead shot in wetland sediments associated with migratory bird hunting activities (Kendall et al. 1996). In 1991, as a result of high bird mortality, the Service instituted a nationwide ban on the use of lead shot for hunting waterfowl and coots (50 CFR 32.2(k)). The Service requires any new shot types for waterfowl and coot hunting to undergo rigorous testing in a three-tier approval process that involves an ecological risk assessment and an evaluation of the candidate shot's physical and chemical characteristics, short- and long-term impacts on reproduction in waterbirds, and potential toxic impacts on invertebrates (50 CFR 20.134). Because of this rigorous testing, the shot toxicity issue of the past is now substantially less of an ecological concern.

However, there remains a concern about the bioavailability of spent lead ammunition (bullets) and sinkers on the environment, endangered and threatened species, birds, mammals, humans, and other fish and wildlife susceptible to biomagnification. For example, as one commenter noted, “The impacts of lost lead tackle can be significant; for example, ingested lead fishing tackle is the leading cause of mortality in adult common loons” (Grade, T. et al., 2017, in Population-level effects of lead fishing tackle on common loons. The Journal of Wildlife Management 82(1): 155-164.) The impacts of lead on human health and safety have been a focus of several scientific studies. As related to hunting and fishing, studies have found the ingestion of animals harvested via the use of lead ammunition increased levels of lead in the human body (
e.g.,
Buenz, E. (2016). Lead exposure through eating wild game. American Journal of Medicine, 128: 458.).

We share the commenters' concerns about the adverse impacts of lead. We have reviewed the literature provided during the public comment period and have updated our station-specific analyses, as well as the national cumulative impact report as appropriate.

Although there is not a Service-wide ban on lead ammunition for non-migratory bird hunting activities or on lead sport fishing tackle, the Service has taken specific steps to limit the use of lead in hunting and fishing activities on refuges and hatcheries. Notably, we continue, in these annual rulemakings updating the regulations for hunting and sport-fishing on NWRs and NFHs, to phase out the use of lead on Service lands. On several refuges and hatcheries, the Service does prohibit the use of lead tackle or ammunition; since 2015, not counting this rule, 122 refuges and wetland management districts have implemented restrictions on the use of lead ammunition and lead sport fishing tackle for upland game, migratory bird, or sport fishing harvest activities. In this rule, Stillwater NWR prohibits the use of lead shot for hunting upland game; 21 other stations only allow nontoxic shot for upland, big game, and/or turkey hunting; and 10 refuges and hatcheries limit the use of lead tackle in sport fishing. Three of these stations have both a hunting and a fishing lead restriction, so there are 29 total stations with lead restrictions in this rule.

The Service continues to educate hunters and anglers on the impacts of lead on the environment, and particularly on human health and safety concerns of ingesting animals harvested with lead ammunition. We always encourage hunters and fishers to voluntarily use nontoxic ammunition and tackle for all harvest activities. Lead alternatives to both ammunition and tackle are becoming more widely available and used by hunters and anglers; however, they remain more expensive.

The Service believes it is important to encourage refuge-State partnerships to reach decisions on lead usage. We continue to research this issue and engage with States and other partners to promote the use of non-lead ammunition and tackle. We share a strong partnership with the States in managing wildlife, and, therefore, we are proceeding with the phase-out of toxic ammunition in a coordinated manner with each respective State wildlife agency. For example, in California, the use of lead ammunition is prohibited Statewide including on all Service lands, largely in response to the adverse impacts of lead on the endangered California condor (
Gymnogyps californianus
).

At those stations where the Service is continuing to allow lead ammunition and tackle in order to be consistent with the States, the number of new hunters or anglers expected to use lead bullets or lead tackle as a result of the new or expanded opportunities is anticipated to be very low, so the resulting addition of lead into the environment should be negligible or minor. Where lead ammunition or tackle is still allowed (although discouraged) on Service lands, the addition of lead and the associated impacts to the environment are negligible when compared to the lead in the environment as a result from other fishing, hunting, or other activities in the local, regional, and national area.

We disagree with the assertion of some commenters that any use of lead shot in connection with opening and expanding hunting and fishing on the refuges and fish hatcheries in this rulemaking will harm endangered or threatened species. Each refuge and hatchery carefully evaluated possible impacts on endangered and threatened species as part of the NEPA process. As discussed above, on refuges, where lead ammunition or tackle is allowed, we found that the low number of hunters and anglers using lead ammunition or tackle would result in no more than a negligible increase of lead in the environment when compared to the lead ammunition and tackle being used in the surrounding areas. In addition, every refuge and hatchery looked at the impacts of these new or expanded hunting and fishing opportunities, including the allowance or prohibition of lead, on endangered and threatened species in compliance with requirements under section 7 of the ESA. The ESA requires Federal agencies to ensure that the actions they carry out, fund, or authorize do not jeopardize the continued existence of endangered or threatened species (listed species). For each refuge, the Service determined that the proposed action was not likely to adversely affect any listed species. We have reviewed commenters' concerns regarding insufficient analyses on the impact of lead in certain station-specific NEPA documents, and we have clarified or added additional analyses where appropriate.

We have also updated the 2020-2021 cumulative impacts report to clarify and discuss additional information on the impacts of lead brought to our attention through the public comment period. While we will continue to phase out the use of lead ammunition and tackle on Service lands in cooperation with our State partners, we did not make any changes to the rule as a direct result of these comments. We have, however,

added new prohibitions for use of toxic shot for multiple hunts at Coldwater River, Patoka River, Ottawa, and Horicon NWRs in this rule. Therefore, this rule contains a total of 33 lead-limiting hunting and fishing provisions at 29 stations.

Comment (14):
We received several comments that claimed the Service had not adequately addressed the cumulative impacts to endangered and threatened species. Some of these comments pointed to one or more particular species.

Our Response:
In compliance with section 7 of the ESA, every station determined that their proposed actions would have either “no effect” or were “not likely to adversely affect” endangered and threatened species or designated critical habitat. Because endangered and threatened species are usually highly localized, minor or negligible impacts on an endangered or threatened species at a local or even regional scale would likely have no cumulative impact on national populations of those species.

While there may be some minor, localized, and temporary (short-term) impacts to endangered and threatened species as a result of hunting or fishing activities, every station ensured that these impacts were minimized and, in many cases, offset them through a variety of management activities. For example, one commenter expressed concerns over the cumulative impact to the endangered northern aplomado falcon (
Falco femoralis septentrionalis
) at Lower Rio Grande Valley NWR and Laguna Atacosta NWR. The majority of hunts at these refuges are not taking place during the nesting season and are not occurring in areas utilized by aplomado falcons. Hunts are occurring in association with brush habitats and not within the coastal prairie habitats utilized by the aplomado falcon. Over the course of nearly three decades, no adverse effects to aplomado falcons from the conduct of the hunts on refuges in south Texas or elsewhere has ever been documented.

We did not make any changes to the rule as a result of these comments.

Comment (15):
We received many comments expressing concern about opening and expanding opportunities for hunting of predator species. Several of these comments objected to all proposed hunting of a predator species on a Service station and named all such stations. Some commenters alleged that we did not give enough consideration to the impacts of those proposed hunts, and that the hunts conflicted with the Service's mandates under the Administration Act to maintain the biological integrity, diversity, and environmental health of the refuge. Some commenters were also concerned that the cumulative impacts report was not sufficient in its analysis of furbearer species specifically.

Our Response:
Refuge managers consider predator management decisions on a case-by-case basis. As with all species, a refuge manager makes a decision about managing predator populations, which are included in the category of resident wildlife, including allowing predatory species to be hunted, only after careful examination to ensure the action would comply with relevant laws, policies, and directives. The Administration Act, as amended, directs the Service to manage refuges for “biological integrity, diversity, and environmental health.” Predators play a critical role in the integrity, diversity, and overall health of ecosystems, so before allowing predators to be hunted, a refuge manager must ensure that these actions do not threaten the integrity, diversity, or health of the refuge ecosystem. The manager must also determine that the action is compatible with refuge purposes and the mission of the Refuge System, and in keeping with the refuge's CCP and other step-down plans. In addition, the refuge manager analyzes the impacts of the actions on the environment through the NEPA process and section 7 of the ESA. Therefore, a refuge manager must take many steps to ensure that any opportunity for hunting predators on a refuge meets the Service's applicable laws and policies.

The Administration Act, as amended, also mandates that regulations permitting hunting or fishing of fish and resident wildlife within the Refuge System shall be, to the extent practicable, consistent with State fish and wildlife laws, regulations, and management plans (16 U.S.C. 668dd(m)). Therefore, all the opportunities for hunting predators in this rule that are intended to bring greater consistency with State fish and wildlife laws, regulations, and management plans are part of realizing the Service's mission. Moreover, these, as with all predator hunting determinations and all hunting and fishing determinations, were only made after careful consideration by the refuge manager to ensure that such actions would not threaten the integrity, diversity, and overall health of the ecosystem and were compatible with both the purpose of the refuge and the mission of the Refuge System. For NFHs, the hatchery manager made the decision that such opportunities were not detrimental to the propagation of fish, wildlife, or aquatic species (50 CFR 70.1). Finally, both the NEPA process and the rulemaking process provide the opportunity for the public to provide comments and any additional information on impacts of our actions. We considered the additional information provided from the public on this issue during these public comment periods and determined that they did not affect our initial determinations that these small and minor opportunities for hunting predators on specific refuges or hatcheries will have no more than minor impacts on the population health of these species or other wildlife at the local, regional, or national level.

To clarify, our determination of the rule's impact on furbearers, like many other resident wildlife species in this rule, is not based on bag limits, but rather on the limited number of hunters that we expect to pursue these opportunities as a result of the rule. Hunting for furbearers (including some predators) on refuges is often limited by season date ranges and hours of day. In other cases, the terrain and habitat of the refuge or hatchery are not conducive to these types of hunting opportunities. Therefore, it is our determination that this rule, while bringing greater alignment with State hunting regulations, will not result in significant impacts to predator or furbearer species. We have updated the 2020-2021 cumulative impacts report to clarify these points of public concern.

We did not make any changes to the rule as a result of these comments.

Comment (16):
We also received various comments expressing the sentiment that “trophy hunting,” trapping, baiting, and hounding of predators are “unsportsmanlike” activities and inappropriate uses on Service lands.

Our Response:
The Service does not attempt to define or authorize “trophy hunting” in any of our laws, regulations, or policies concerning hunting. We follow State hunting and fishing regulations (except for where we determine it is necessary to be more restrictive on individual stations), including State regulations concerning responsible hunting, or prohibitions on wanton waste (defined as “to intentionally waste something negligently or inappropriately”). We only allow hunting on refuges and hatcheries when we have determined that the opportunity is sustainable and compatible.

The use of dogs for hounding is prohibited on refuges by 50 CFR 26.21(b) unless authorized by station-specific regulations, and many refuges

only authorize the use of dogs for retrieval of migratory birds, upland game birds, and small game. Most refuges that allow dogs require the dogs to be under the immediate control of the hunter at all times, or leashed unless actively retrieving an animal. There are also some hatcheries that allow hounding. All of them do so in order to provide complete consistency with State regulations in the interest of effective law enforcement, as the hatcheries that allow this activity are small and are only providing access on their land for hounding because they are surrounded by State land that allows this practice. In cases where there may be concerns with use of dogs impacting the management and purpose of the hatchery, those hatcheries have also been closed to hounding.

In States where baiting is allowed, some refuges have elected to be more restrictive and not support this method of hunting. In cases where hatcheries have allowed this activity, they do not expect the hunting activity for species such as bear will occur, and thus no baiting would occur on the hatchery. Some hatcheries allow this use to be in complete consistency with State regulations for law enforcement reasons.

Trapping is not a valid method of take as part of hunting programs in the Refuge System. Under the Improvement Act, trapping is not considered a priority wildlife-dependent recreational use of the Refuge System. Trapping on refuges is generally only implemented to accomplish specific wildlife management objectives. These objectives vary between refuges and are often an essential tool in meeting refuge management objectives (
e.g.,
trapping of predators may be necessary to accomplish waterfowl production objectives or to protect an endangered species).

We did not make any changes to the rule as a result of these comments.

Comment (17):
Several commenters raised the issue of the impact of the rule on wilderness, particularly as defined by the 1964 Wilderness Act (16 U.S.C. 1131-1136). Some of these comments focused on wilderness concerns at specific refuges, including Cabeza Prieta NWR in Arizona.

Our Response:
Hunting and fishing are generally compatible wildlife-dependent recreational activities allowed in many wilderness areas managed by both the Service and other land management agencies, such as the Bureau of Land Management and the National Park Service. However, in order to be compatible with wilderness purpose and values, hunting and fishing activites within wilderness areas are subject to certain limitations, including foot or nonmotorized watercraft access only, primitive weapons only, and in some cases special use permit requirements that ensure wilderness values are protected. Because hunting and fishing in wilderness is not easily accessible and has many restrictions, we anticipate the number of hunters or anglers in wilderness to be very low, and we determined there will be no significant impacts to wilderness areas or wilderness values from this rule. For example, the wilderness area at Cabeza Prieta NWR is fairly accessible to visitors due to the unique non-wilderness road corridors along El Camino del Diablo and Christmas Pass Road. Yet, due to the rugged terrain and extreme weather conditions, the Service does not anticipate hunters traveling more than 5 miles from these roads. Therefore, increased hunting opportunities will potentially affect a maximum of 19 percent of the 860,000-acre refuge. Hunting will be limited to foot access only to ensure wilderness values are protected. We anticipate the number of hunters will be low, and there will be negligible increase in impacts to the refuge's wilderness area.

We did not make any changes to the rule as a result of these comments.

Comment (18):
A couple commenters had questions about permitting for hunting and fishing at certain refuges.

Our Response:
First, the best source for answers to detailed questions on permitting at a given refuge is still the refuge website, brochures, station signage, and/or station staff. Second, these inquiries may have been prompted by the fact that in this rule we made a significant number of regulatory changes related to permits, many of them specifying the particular Federal form required. The forms that the Service uses to issue permits must be approved by the Office of Management and Budget (OMB) and assigned an OMB control number. Therefore, the rule ensures that our regulations list the approved form number of the permit, which displays a valid OMB control number, that is required at the station. These clarifying changes to our regulations should benefit all hunters and anglers who visit the refuges and hatcheries. Each station has further instructions on the permit process at that station's office, listed in the station's hunting or fishing brochure, and/or on various signs and placards located around the station.

Comment (19):
We received many comments that expressed concern over some aspect of public safety. Commenters raised concerns about openings or expansions of hunting at several stations based on the potential for trespassing, the location of refuges in crowded areas, potential conflicts with other visitors to the refuge, or the need for adequate funding and/or staffing. In particular, the most common specific concern was that the increase in openings and expansions of hunting and sport fishing would overwhelm existing law enforcement capacity. These concerns were expressed for multiple specific stations and as a nationwide issue, but we received the most comments about public safety concerns both nationally and locally around hunting at Sachuest Point NWR.

Our Response:
The Service considers public safety to be a top priority. In order to open or expand hunting or sport fishing on a refuge, we must find the activity compatible. In order to find an activity compatible, the activity must not “materially interfere or detract from” public safety, wildlife resources, or the purpose of the refuge (see the Service Manual at 603 FW 2.6.B., available online at
https://www.fws.gov/policy/603fw2.html
). For this rulemaking, we specifically analyzed the possible impacts of the changes to hunting programs at each refuge and hatchery on visitor use and experience, including public safety concerns and possible conflicts between user groups.

Hunting of resident wildlife on refuges generally occurs consistent with State regulations, which are designed to protect public safety. Refuges may also develop refuge-specific hunting regulations that are more restrictive than State regulations in order to help meet specific refuge objectives, including protecting public safety. Refuges use many techniques to ensure the safety of hunters and visitors, such as requiring hunters to wear blaze orange, controlling the density of hunters, limiting where firearms can be discharged (
e.g.,
not across roads, away from buildings), and using time and space zoning to limit conflicts between hunters and other visitors. It is worth noting that injuries and deaths related to hunting are extremely rare, both for hunters themselves and for the nonhunting public.

However, public comment is important in making sure we have considered all available information and concerns before making a final decision on a proposed opening or expansion. For Sachuest Point NWR, the Service proposed a non-annual, short-duration, limited (maximum 8 hunters), mentored firearms hunt for white-tailed deer, with the chance to opportunistically hunt coyote or fox while deer hunting. Opposition to the proposal was widespread, including from the

municipality, State representatives, and the State's congressional delegation. The refuge received over 600 comments on the proposed hunt at the refuge, and 97 percent of those commenters were opposed to the plan, with particular concerns about public safety and impacts to recently restored marshland. For these reasons, the hunt unit area is being decreased from 223 acres to 150 acres to exclude areas near town beaches and the salt marsh, and the allowed method of take is changed from firearms to archery only. For Bosque del Apache NWR, we are not adopting the proposed hunting of dark goose, American coot, common moorhen, common snipe, duck, and merganser in order to ensure no negative impacts to public safety or to important habitat on the refuge. This means we are removing 663 acres for migratory bird hunting on Bosque del Apache NWR from what we proposed on April 9, 2020 (85 FR 20030). This final rule also incorporates changes from the proposed rule to the designated areas where hunting can occur for public safety reasons at three other refuges that are not codified in the Code of Federal Regulations but that will be reflected on the refuges' websites, in their brochures, and on their signage. Specifically, from the designated hunting areas we proposed on April 9, 2020 (85 FR 20030): (1) We removed 16 acres from the designated hunting area for John H. Chafee NWR in response to public safety concerns, including a comment from local law enforcement; (2) we removed 16 acres from the designated hunting area for Ottawa NWR in order to reduce the risk of trespassing through adjacent lands in the interest of public safety; and (3) we removed 80 acres from the designated hunting area for LaCreek NWR in order to reduce the risk of trespassing on adjacent lands in the interest of public safety.

For the rest of the proposed openings or expansions of hunting in our April 9, 2020, proposed rule (85 FR 20030), we have determined that there are sufficient protections in place as part of the hunt program at that station to ensure public safety. For more information on the Service's efforts to ensure public safety at a particular station, please see that station's hunt plan, compatibility determination, and associated NEPA analysis.

Regarding concerns about lack of funding or staffing, Service policy (603 FW 2.12.A.(7)) requires station managers to determine that adequate resources (including personnel, which in turn includes law enforcement) exist or can be provided by the Service or a partner to properly develop, operate, and maintain the use in a way that will not materially interfere with or detract from fulfillment of the refuge purpose(s) and the Service's mission. If resources are lacking for establishment or continuation of wildlife-dependent recreational uses, the refuge manager will make reasonable efforts to obtain additional resources or outside assistance from States, other public agencies, local communities, and/or private and nonprofit groups before determining that the use is not compatible. When Service law enforcement resources are lacking, we are often able to rely upon State fish and game law-enforcement capacity to assist in enforcement of hunting and fishing regulations. For all 147 stations opening or expanding hunting and/or sport fishing in this rule, we have determined that we have adequate resources, including law enforcement personnel, to develop, operate, and maintain the proposed hunt programs.

We did not make any additional changes (other than those described in this response) to the rule as a result of these comments.

Comment (20):
Many commenters stated and even put forward statistics on the fact that the majority of Americans do not hunt. Most of these commenters were also of the opinion that allowing hunting would impede “non-consumptive” uses of refuges, including photography and wildlife viewing. A few of these commenters mentioned our obligation to manage the refuges in the interest of multiple uses, particularly those listed in the Administration Act.

Our Response:
Congress, through the Administration Act, as amended, envisioned that hunting, fishing, wildlife observation and photography, and environmental education and interpretation would all be treated as priority public uses of the Refuge System. Therefore, the Service facilitates all of these uses on refuges, as long as they are found compatible with the purposes of the specific refuge and the mission of the Refuge System. For this rulemaking, we specifically analyzed the possible impacts of the changes to hunting programs at each refuge and hatchery on visitor use and experience, including public safety concerns and possible conflicts between user groups.

The refuges and hatcheries in this rulemaking use a variety of techniques to reduce user conflict, such as specific hunt seasons, limited hunting hours, restricting which parts of the station are open to hunting, and restricting the number of hunters. Station managers also use public outreach tools, such as signs and brochures, to make users aware of hunting and their options for minimizing conflict. Most stations have station-specific regulations to improve the quality of the hunting experience as well as provide for quality wildlife-dependent experiences for other users. The Service is aware of several studies showing a correlation between increased hunting and decreased wildlife sightings, which underscores the importance of using the aforementioned techniques, particularly time and space zoning of hunting, to ensure a quality experience for all refuge and hatchery visitors. More information on how a specific station facilitates various wildlife-dependent recreation opportunities can be found in the station's CCP, hunt plan, and/or station-specific associated NEPA document. The public may contact the specific refuge or hatchery for any of these materials, and the NEPA documents associated with this rule are available here for all stations:
https://www.fws.gov/refuges/hunting/rules-regulations-and-improved-access/.

In response to public comments, this rule incorporates changes to Bosque del Apache NWR's refuge-specific hunting regulations to help address impacts on other wildlife-dependent recreation users and partners working on the refuge, as well as possible impacts to habitat on the refuge. In addition, we have made modifications to the designated hunting area, in order to reduce risk of conflict with other priority public uses, at Lee Metcalf NWR that are not codified in the Code of Federal Regulations but that will be reflected on the refuge's website, in its brochures, and on its signage. Specifically, from the designated hunting area we proposed on April 9, 2020 (85 FR 20030), we removed 1,463 acres at Lee Metcalf NWR in the interest of balancing priority public uses.

Comment (21):
One comment centered on the impact of muzzleloaders (firearms loaded through the open end of the barrel, as opposed to modern breech-loaded firearms) on wildlife and public health and safety for a long list of refuges. A few of the refuges named do not allow muzzleloader firearms, with this rule or otherwise, but the majority of those listed do under this rule.

Our Response:
We have determined that the allowance of muzzleloader rifles as a method of take at these refuges is compatible with the purposes of those refuges and the mission of the Refuge System. We have also determined that allowing this method of take will have negligible impacts on wildlife and public safety for the following reasons:

(a) Numbers of hunters using muzzleloaders on the specific refuges named in the comment and on Service lands in general are expected to remain low. The 2016 National Survey of Hunting and Fishing reported that only 12 percent of all hunters reported using muzzleloaders.

(b) Noise produced by muzzleloading and modern rifles and shotguns of the same caliber and barrel length are similar in decibel range (approximately 150-160 dB for shotguns). However, the noise produced by these weapons has quite different characteristics. Black powder used in muzzleloaders makes a much lower frequency noise of longer duration. Smokeless cartridges used in modern firearms have a faster burn, which gives a much higher pitched noise that is much shorter. The high-pitched crack of modern firearms is more damaging to hearing, and likely more disturbing to wildlife than the lower-pitched sound of black-powder weapons.

(c) Muzzleloading weapons have a shorter effective range and require a closer approach to game than when using modern firearms. In addition, the long reloading time of muzzleloaders (approximately 30 seconds) means that hunters typically wait for better opportunities, and fewer shots are fired.

(d) Muzzleloaders use a variety of propellants, including black powder, a mixture of potassium nitrate, charcoal, and sulfur. Black powder does produce relatively large quantities of smoke when fired. If combustion of black powder is complete, smoke would contain primarily nitrogen and carbon dioxide. However, since combustion is incomplete, black powder combustion produces hydrogen sulfide, sulfur oxides, carbon monoxide, and nitrogen oxides. (See Del'Aria, Cynthia and Opperman, David A. 2017. “Pyrotechnics in the Entertainment Industry: An Overview.” pp. 791-802 In: Sataloff, Robert T. (ed) 2017. Professional Voice, Fourth Edition: The Science and Art of Clinical Care (3 vol). Plural Publishing.) These compounds are toxic if breathed in high concentrations; however, in field conditions encountered when hunting, black powder smoke disperses rapidly. Total amounts produced as a result of hunting activity would be negligible, and therefore effects to wildlife would also be negligible.

(e) Muzzleloaders do take significantly more knowledge to operate than modern firearms, and involve greater risk. However, a political and social research firearm injury surveillance study, which accumulated data from 1993 to 2008, reported that firearm-related incidents (all firearms) occurred in only 9 out of every 1 million hunting days. (See Loder, Randall T. and Farren, Neil. 2014. “Injuries from firearms in hunting activities.” Injury: International Journal of the Care of the Injured 45(8): 1207-1214. Online at:
https://doi.org/10.1016/j.injury.2014.04.043.
) In 2017, there were over 17 million hunters with firearms according to the National Sporting Goods Association (NSGA), and only 35 injuries occurred per 100,000 participants, of which a vast majority were not serious injuries. (See Target Tamers. 2020. “Hunting Accident Statistics: Fatalities, Injuries, and Tree Stand Accidents.” Online at:
https://www.targettamers.com/guides/hunting-accident-statistics/#_ftn24.
) Thus, while hunting with any type of firearm involves risk, overall it is an extremely safe activity.

We did not make any changes to the rule as a result of this comment.

Comment (22):
We received one comment stating there was no mention of “catch and release” in the proposed rule and asking us to “advocate for” this method of fishing in the interest of maintaining fish populations.

Our Response:
We agree with the commenter that catch-and-release restrictions can be a good way to both allow fishing and ensure population health of the targeted species. We do have catch-and-release restrictions on many of our stations. For example, we have three stations (Assabet River NWR, Cherry Valley NWR, and Wallkill River NWR) in this rule that retain their regulations allowing only catch-and-release fishing. Where catch-and-release is not required, it usually means that, consistent with the State, the fishery populations are healthy enough to sustain some take or that the targeted species are nonnative.

Comment (23):
Two comments, one of them referencing the other, advocate for falconry as an approved method of take in alignment with State regulations, specifically in the State of Arizona.

Our Response:
We allow hunting of resident wildlife on NWRs 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. Service policy, as outlined in our Service manual at 605 FW 2.7.M. (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 VSP (which would include a hunt plan, if appropriate) from their CCP, 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 restrict hunting and types of hunting, including falconry, if, for example, endangered or threatened species are present, the cumulative impacts of a type of hunt have not been analyzed or are not available, or if a type of special hunt is not compatible with the refuge purpose. Thus, this issue is decided individually on a refuge-by-refuge basis. The Service remains committed to opening hunting methods, including falconry and especially those methods allowed by State regulations, whenever it is possible to do so at a given refuge in a manner consistent with all purposes and objectives of the refuge, in the professional judgment of the refuge manager.

We did not make any changes to the rule as a result of these comments.

Comment (24):
One commenter requested that we change our regulations on the use of dogs for hunting to be more consistent Service-wide and to align them with State regulations.

Our Response:
Even though State regulations may allow dogs during hunting activities, our general refuge regulations prohibit all domesticated animals at 50 CFR 26.21(b) unless authorized by refuge-specific regulations. While refuges adopt State hunting and fishing regulations to the extent practicable, they must also comply with the general refuge regulations. Therefore, in order to allow dogs during hunting activities, each refuge must authorize the use of dogs during hunting activities in their refuge-specific entries at 50 CFR part 32. As explained above, all uses on refuges must be found compatible and must not conflict with refuge objectives. Some refuges have found that the use of dogs during hunting activities must be limited or not authorized in order to avoid conflict with refuge objectives. Where we do allow the use of dogs while hunting, we attempt to have consistency with regulations between refuges, especially within States and geographic regions.

As an example of such efforts, the Northeast Region, based on conversations and cooperation with Northeast Association of Fish & Wildlife Agencies leadership, evaluated its current practices and ultimately proposed in our April 9, 2020, proposed rule (85 FR 20030) to allow some use of dogs while hunting to increase consistency. Nearly all refuges in the

Northeast Region will soon be aligned with their respective State's regulations on the use of dogs during hunting seasons for big game, upland game, and migratory game birds.

We did not make any changes to the rule as a direct result of this comment, but we did make some changes to regulations related to the use of dogs for other reasons, and these changes may increase consistency across stations and further align with State regulations.

Comment (25):
We received one comment that urged the development of a user fee that would be consistently applied for all refuges and hatcheries and for all recreational uses.

Our Response:
The Service collects entrance and recreation fees under the authorities of the Refuge Revenue Sharing Act of 1935 (16 U.S.C. 715s) and the Federal Lands Recreation Enhancement Act (FLREA; 16 U.S.C. 6801
et seq.
). Service policy requires refuge managers to consider two factors in determining fees for any activity: Fair market value and costs involved in providing the use. Because fair market value and refuge costs can differ among localities, there is often a range of different fees for similar activities in different locations. For locations that collect fees under FLREA, public comment periods are required when refuges initiate fees and to change the types and amounts of fees. We encourage public participation in this process.

We did not make any changes to the rule as a result of this comment.

Comment (26):
A number of commenters mentioned climate change, as a general environmental issue, as something we should consider in developing this rule. A few of these commenters specifically argued that we did not fully consider the impacts of this rule in the context of the separate impacts of climate change on fish, wildlife, and other refuge resources in our cumulative impacts report.

Our Response:
The Service considers the impacts of climate change on the management of wildlife and responds to a changing climate through its annual process of setting hunting and fishing seasons. Hunting seasons are based on biological monitoring and coordination with our State partners. In some circumstances, seasons may be adjusted based on predicted harvest rates, population levels, seasonal factors, and other assessments. While this process is not necessarily climate-based, over time, as the variables mentioned above change, the Service responds by altering its regulations accordingly. These regulatory changes are only incremental changes that build on previous changes. Any major changes in station or environmental conditions, such as an unsustainable decrease in a species population or sizeable increases in refuge or hatchery acreage or public uses, would trigger additional planning, NEPA review, Compatibility Determinations, and ESA section 7 evaluation processes. The Service may reevaluate compatibility at any time if conditions warrant. These required planning and management processes ensure that adverse impacts will not accumulate over time.

As a result of these comments, we have updated the 2020-2021 cumulative impacts report to further clarify our approach to considering climate change. We did not make any changes to the rule as a result of these comments.

Comment (27):
Several comments noted the potential benefits of this rule in reducing the spread of wildlife diseases due to the increase in hunting opportunities. One of these comments further urged us to ensure that our regulations provide flexibility for individual stations to address chronic wasting disease in deer populations.

Our Response:
We agree that in States where chronic wasting disease (CWD) is prevalent, hunting can be a useful emergency management tool for reducing the spread and prevalence of CWD. Population reduction can minimize disease transmission and selective culling of deer in areas where CWD occurs and can control the prevalence of the disease (Mateus-Pinilla, N., M.O. Ruiz, P. Shelton, and J. Novakofski. 2013. Evaluation of a wild white-tailed deer population management program for controlling chronic wasting disease in Illinois, 2003-2008. Preventative Veterinary Medicine, 110(3-4): 541-548). For many of the refuges in affected States, there are strategies to coordinate with the State on responses to CWD outbreaks outlined in the station's hunt plan or CD. Beyond opening additional emergency hunts, stations can, when necessary, coordinate with States to monitor for CWD and provide additional staff support and resources for the State's response to an outbreak.

We did not make any changes to the rule as a result of these comments.

Comment (28):
We received two comments that touched on the proposed rule's discussion of the economic impacts of the rule. One commenter argued that we must include local economies with no expected changes to revenues as a result of the proposed rule alongside those that may see changes because omitting them “skews the results” in our conclusion that the rule will not significantly affect a substantial number of small entities. The second commenter claimed that we must conduct a Regulatory Flexibility Act analysis for this rule and that it must include the impact of the rule on non-consumptive users.

Our Response:
For the first comment, if we were to include estimates of zero impact for any number of local economies in areas unaffected by the rule, it would not change our estimate of the maximum nationwide economic impact and would not change anything about the potential economic significance of the rule.

Regarding the second comment, a Regulatory Flexibility Act analysis is required for some rulemakings, but this rulemaking does not require such an analysis because we can certify that it will not significantly affect a substantial number of small entities. The commenter is correct that non-consumptive users are an important user group at our refuges and hatcheries, and they do bring benefits to local economies. However, the commenter's argument that we need to consider economic impacts of the rule on non-consumptive users, and presumably that it would change our finding on significance of the rule's impact if we did, does not persuade us for two key reasons. First, if the impacts the commenter describes, lost revenue for local economies from fewer non-consumptive use days at refuges and hatcheries, were to occur as a result of this rule, they would be offset by the increased revenues that we have calculated for the added hunting and fishing use days. This means that calculating both impacts, again assuming there were lost non-consumptive use days, could never find as much of an impact as calculating one or the other alone. Calculating impacts related to both user groups would be inefficient. Second, calculating only the economic impact of the rule's effects on non-consumptive users of the refuges would not likely result in a higher estimate of maximum nationwide economic impact because there are no expected effects on this user group, which means the estimated economic impacts would be zero. As discussed above in our response to Comment
(20),
this rule is not expected to significantly impact non-consumptive users. None of the provisions in this rule regulate non-consumptive uses of the refuge, and all openings and expansions of hunting and fishing are assessed for compatibility with non-consumptive uses. The Service has put in place many restrictions on hunting and fishing programs, including some added in response to comments on this rule, in

order to ensure that we balance the various priority wildlife-dependent recreation uses on all refuges and hatcheries. We do not expect the rule to effect non-consumptive use of the refuges and hatcheries, and we fully expect the trends of increasing non-consumptive use mentioned by the commenter to continue alongside the implementation of the rule.

We did not make any changes to the rule, including to our discussion of the Regulatory Flexibility Act analysis and the Secretary's certification that this rule will not have a significant impact on a substantial number of small entities, as a result of these comments.

Comment (29):
A few comments maintained that we need to account for the ongoing impacts to habitat and wildlife from border operations and border wall construction in assessing the hunting and fishing opportunities at our refuges on the border with Mexico (
i.e.,
Lower Rio Grande Valley, Laguna Atascosa, and Cabeza Prieta NWRs). These commenters argue that the combined impacts of border operations and increased hunting and fishing pose too much of a risk to habitats and to certain species, particularly endangered and threatened species.

Our Response:
The Service disagrees with commenters that opening these areas to hunting would have more than minor cumulative impacts on habitat and species. In general, the potential impacts of providing additional hunting opportunities, which are minimal and temporary in nature, are negligible to minor for both habitats and species. The refuge-specific documents at Cabeza Prieta, Buenos Aires, and Lower Rio Grande Valley NWRs have been updated to further clarify the anticipated impacts and how they have been minimized. Specifically at Lower Rio Grande Valley NWR, hunt tracts, with the exception of La Casita East, are removed by several miles (25-30 miles) from the border. Therefore, since the effects of hunting and border wall activities are, for the most part, separated by substantial distances, the refuge does not anticipate that hunting activities (including through vehicle traffic or foot traffic) would contribute to any cumulative impacts to species from border activities and development occurring along or within the Rio Grande tracts of the refuge. At Cabeza Prieta NWR, hunter use days would predominantly occur from October through February when wildlife, including Sonoran pronghorn, are less likely to be stressed by environmental conditions. Cabeza Prieta NWR does not allow hunters access via motorized transport or mechanized equipment within designated wilderness or on any administrative roads or trails within designated wilderness. Additionally, the terrain at Cabeza Prieta NWR is very rough and mountainous, with hot Sonoran desert conditions. Therefore, most hunting will likely occur within 5 miles of the public roads that run through non-wilderness corridors. Additionally, there are a number of mitigation measures put in place to reduce adverse effects on pronghorn, which include restricting dove hunting to late season only, enforced speed limits, and no hunting zones around captive breeding facilities. Even though these activities are occurring in the same area, we expect a very limited number of hunters. This means that the minimal human activity associated with hunting is not likely to significantly add to disturbance of pronghorn, even when considered in the context of border-related activities. The vast size of the refuge (860,000 acres) also weighs in favor of our assessment that any impacts of these potentially overlapping human activities would be negligible. Finally, these refuges use an adaptive management approach, as do all of our stations, and will make all necessary adjustments to their hunt programs should they determine that hunting activities are adversely impacting a listed species.

Comment (30):
A significant number of comments advocated for openings and expansions of additional waterfowl hunting opportunities. Most of these specifically requested opportunities in the State of California and the Southeastern United States.

Our Response:
We appreciate the support for and interest in waterfowl hunting in California and in the Southeast. We are committed to evaluating additional waterfowl hunting opportunities on refuges wherever it is compatible with refuge purposes, sanctuary requirements, local conditions, and other objectives and obligations of the Refuge System. These requests for additional openings and expansions will have to be a consideration for future rulemakings, as they have not yet been evaluated and thus cannot be accommodated between a proposed and final rule. Nevertheless, given the degree of public interest, it is appropriate to note some considerations specific to waterfowl hunting in California and the southeastern United States.

In California, for a variety of reasons, our ability to further expand some of the highlighted opportunities at our NWRs is limited. These reasons include, but are not limited to, limited access, unreliable water supplies, and recovery of endangered species. Also, despite the high demand during opening weekend, we have many waterfowl hunt opportunities throughout the season in California that are undersubscribed. In the Southeast, many NWRs face limits in opening and expanding beyond current opportunities as many are closed or partially closed to migratory bird hunting in order to meet inviolate sanctuary requirements or because of a specific establishing purpose inconsistent with waterfowl hunting. Yet, there are many more refuges in the region that are accessible and open to waterfowl hunting, with regulations that are aligned or closely aligned to State regulations.

We did not make any changes to the rule as a result of these comments.

Alaska

Comment (31):
We received multiple comments that we failed to provide credible scientific evidence that camelids present a disease threat to wildlife in Arctic National Wildlife Refuge (Arctic NWR).

Our Response:
We disagree with these comments. The Service must make decisions on what uses to allow on a refuge consistent with principles of sound fish and wildlife management and administration, available science and resources, and adherence to the requirements of ANILCA, the Administration Act, and other applicable laws.

While few peer-reviewed studies have directly investigated the transmission of pathogens from camelids to wild sheep, there have been assessments that advise caution. Schwantje and Stephen (2003) stated that llamas commonly carry pathogens that can cause disease in wild ungulates (H. Schwantje and C. Stephen. 2003. Communicable disease risks to wildlife from camelids in British Columbia. British Columbia Ministry of Water, Land and Air Protection Biodiversity Branch, Victoria, BC). They expressed particular concern for fecal-borne disease, such as Johne's disease and
Pasteurella
spp. Johne's disease is fatal, is easily transmitted among ruminants, is long-lived in the environment, and has no known treatment. In another risk assessment by the Centre for Coastal Health (2017), seven common camelid pathogens were identified that could potentially present significant risks to wild sheep populations:
Mannheimia haemolytica, Pasteurella
spp., contagious ecthyma, bovine viral diarrhea virus,
Mycobacterium avium paratuberculosis
(Johne's disease), bluetongue virus, and
Mycobacterium bovis.
They concluded that
Mannheimia haemolytica, Pasteurella
spp., contagious ecthyma,

and Johne's disease were of particular concern. Both studies expressed concern regarding disease transmission from contact between camelids and wild sheep and their habitat (Centre for Coastal Health. 2017. Risk assessment on the use of South American camelids for back country trekking in British Columbia. British Columbia Ministry of Forests, Lands, Natural Resource Operations and Rural Development Division of Wildlife conservation, Alaska Department of Fish and Game). These assessments informed the Service's decision to prohibit camelids on Arctic NWR.

Limited clinical/pen testing studies have been conducted that co-mingle various domestic (including llamas) and wild animals in an effort to detect disease transmission (Foreyt, W. J. 1994. Effects of controlled contact exposure between healthy bighorn sheep and llamas, domestic goats, mountain goats, cattle, domestic sheep, or mouflon sheep. Northern Wild Sheep and Goat Council Proceedings 9: 7-14.). While this limited study suggests that llamas do not likely pose as serious of a threat to wild sheep as do domestic sheep, it fails to provide compelling evidence that llamas do not pose any risk of pathogen transmission to wild sheep. There were several limitations of the study: (1) It was a symposium presentation, not a peer-reviewed paper; (2) it limited investigation to the transmission of
Pasteurella haemolytica
and did not investigate other pathogens of concern; (3) it is unclear the total numbers of animals that were involved in the study; and (4) it is unclear if the llamas housed with the sheep were in fact infected with
Pasteurella haemolytica.

We did not make any changes to the rule as a result of these comments.

Comment (32):
We received several comments questioning the Service's risk tolerance and precautionary approach to prohibiting camelids on the Arctic NWR.

Our Response:
As discussed above, the Service must make decisions on what uses to allow on a refuge consistent with principles of sound fish and wildlife management and administration, available science and resources, and adherence to the requirements of ANILCA, the Administration Act, and other applicable laws.

Vast, natural, and wild, Arctic NWR serves a distinctive function in the National Wildlife Refuge System. As a completely intact ecosystem, Arctic NWR offers the opportunity to preserve a range of tangible and intangible values in addition to the traditional fish, wildlife, and habitat values and focal species conservation found on most refuges. One of the core purposes of the Arctic NWR, as directed by ANILCA's section 303(2)(B)(i), is to conserve fish and wildlife populations and habitats in their natural diversity including, but not limited to, Dall's sheep.

With that mandate in mind, Arctic NWR sought further professional guidance, including from the Western Association of Fish and Wildlife Agencies (WAFWA) Wild Sheep Working Group's “Recommendations for Domestic Sheep and Goat Management in Wild Sheep Habitat.” Those recommendations state: “We recommend that wild sheep managers design and implement management strategies by taking the first step of assessing and prioritizing conservation value and relative importance of wild sheep populations. The greater the conservation value and the greater the risk of association with domestic sheep or goats, the more aggressive and comprehensive a strategy to ensure effective separation should be.” The Arctic NWR places the highest importance and conservation value on the area's wildlife, including Dall's sheep. Therefore, a most aggressive and comprehensive “effective separation” strategy is warranted. Furthermore, the WAFWA document provides an additional recommendation relating to disease transmission risk mitigation: “It is generally acknowledged that thinhorn sheep (
Ovis dalli
spp.) in Alaska and northwestern Canada are likely naïve to exposure to many organisms commonly carried by domestic species, compared to wild sheep occurring in southern Canada and the continental [United States]. Until this is confirmed and the effects of exposure to infectious organisms are clearly understood, it is essential that no association occurs between thinhorn sheep and domestic sheep or goats” (Garde, E., S. Kutz, H. Schwantje, A. Veitch, E. Jenkins, and B. Elkin. 2005. Examining the risk of disease transmission between wild Dall's sheep and mountain goats and introduced domestic sheep, goats and llamas in the Northwest Territories. Northwest Territories Agricultural and Policy Framework and Environment and Natural Resources Government of the Northwest Territories, Yellowknife, Canada; CAST (Council for Agricultural Science and Technology). 2008. Pasteurellosis transmission risks between domestic and wild sheep. CAST Commentary QTA 2008-1. Council for Agricultural Science and Technology, Ames, Iowa). In light of this acknowledged potential for exposure, the Service finds that precluding any association between Dall's sheep and domestic sheep or goats within the Arctic NWR is warranted at this time.

The Service also included camelid species in this rule because they too have been documented as carriers of pathogens that could potentially harm Dall's sheep. Preventing the introduction (
e.g.,
pathway management) of invasive species and pathogens is the first line and most cost-effective defense against biological invasion. The cost of managing pathogen(s) that may be transmitted by domestic sheep, goats, and camelids through other means (
i.e.,
eradicating or controlling) is exponentially higher. Additionally, there is uncertainty that the recovery of these populations would be achievable if the Dall's sheep populations were to be infected with any of these pathogens. Response and recovery efforts would be made even more difficult considering the Arctic NWR's vast size and remoteness, and the overall difficulty of accessing the sheep and their habitats. Much of the sheep habitat is in designated Wilderness, adding a layer of administrative complexity to any kind of management response to a disease outbreak. To conserve the natural diversity of the Arctic NWR and integrity of Dall's sheep populations in the Arctic NWR, the best course of action is to prevent the introduction of pathogens until there is more information available on how or if pathogens can be effectively managed through other mitigation strategies.

A study that helps illustrate the value of prevention (Cassirer et al. 2018. Pneumonia in bighorn sheep: Risk and resilience. The Journal of Wildlife Management, 82(1): 32-45) found that no vaccine or antibiotic treatment has controlled infection in domestic or wild sheep, and management actions to mitigate morbidity and mortality in wild sheep populations once exposed have been unsuccessful. This is true for populations in the lower 48 States where access and associated logistics for such efforts are relatively feasible. Sheep populations in the Brooks Range are considerably more challenging to access and attempt to treat for disease, supporting the decision that prevention is the best course of action.

Comment (33):
We received a comment noting that llamas and horses are both widely separated from wild sheep taxonomically and that consequently these species enjoy strong species barriers against disease transmission that the Service failed to recognize by “mis-categorizing camelids

with domestic sheep and goats as a common disease risk.” The commenter stated that domestic sheep and goats (bovids) are not widely separated from wild sheep (also bovids) taxonomically, and consequently they do not enjoy the same species barriers against disease transmission to wild sheep that horses and llamas do.

Our Response:
We agree with the commenter that llamas and horses are separated from wild sheep taxonomically. The inclusion of camelid species with domestic sheep and goat species in this rule is not due to taxonomic association. Camelids are included because, similar to domestic sheep and goats, they can harbor the pathogens that are of high risk for enzootic disease outbreak in native wildlife populations. These diseases include
Mannheimia haemolytica, Pasteurella
spp., contagious ecthyma, bovine viral diarrhea virus, bluetongue virus, and
Mycobacterium bovis. Mannheimia haemolytica,

Pasteurella
spp., contagious ecthyma, and Johne's disease are of particular concern for native ungulate species in Alaska.

Comment (34):
We received several comments expressing concern that camelids were being treated differently than other pack animals. Several commenters stated that if camelids are identified as an “unreasonable risk” by the Service, the Service should also consider the unreasonable disease risk posed by humans and other pack animals.

Our Response:
As discussed above, there is potentially great risk to Dall's sheep from sheep, goats, and camelids due to the suite of pathogens they can carry. Similar risks do not exist with respect to other common pack animals, such as horses and mules, or humans. Therefore, we did not make any changes to the rule based on these comments.

Comment (35):
One commenter noted that
Mycoplasma ovipneumoniae
has recently been identified in Dall's sheep in the northern Brooks Range and, according to the Alaska Department of Fish and Game (ADFG), evidence suggests they (wild ungulates) may have been carriers all along; therefore, there is no need to prohibit llamas on Arctic NWR. The commenter also noted that additional evidence from ADFG suggested that moose and caribou also carry the pathogen and may be potential vectors.

Our Response:
Multiple strains of
Mycoplasma ovipneumoniae
have been identified. The
Mycoplasma ovipneumoniae
that ADFG documented in Dall's sheep is apparently a unique Alaska wildlife-only strain that has not been found in any domestic animals, and there is no known cross immunity from different strains. Domestic pack animals can transmit other strains of
Mycoplasma ovipneumoniae
or other diseases and parasites that are novel to the Arctic NWR populations and pose serious risks to these populations. Furthermore, ADFG has not suggested that Alaska's moose and caribou carry the pathogen, nor are they considered potential vectors to Dall's sheep (Dr. Kimberlee Beckmen, June 9, 2020, pers. comm.).

Several studies highlight the vulnerability of wild sheep to novel strains of
Mycoplasma ovipneumoniae.
Cassirer et al. (2017) state that transmission of pathogens carried by domestic sheep and goats pose a severe threat to bighorn sheep populations (Cassirer, E.F., K.R. Manlove, R.K. Plowright, and T.E. Besser. 2017. Evidence for strain-specific immunity to pneumonia in bighorn sheep. The Journal of Wildlife Management, 81(1): 133-143). Large die-offs occur from pneumonia caused by exposure to
Mycoplasma ovipneumoniae.
This is further complicated by the fact that some of the survivors from these epidemics are asymptomatic, but can pass this pathogen on to other sheep, including new lambs. These lambs usually succumb to pneumonia and die. Additionally, they cited a situation in Hells Canyon in which a novel
Mycoplasma ovipneumoniae
strain introduced by domestic goats caused high levels of morbidity and mortality among adult sheep in the population. In another study, researchers sampled 137 animals in 24 flocks of domestic sheep and goats for
Mycoplasma ovipneumoniae
and found that 37.5 percent of the flocks tested positive. Additionally, they found that 78 percent of these animals had incidences of escape from their pens, thus potentially transmitting this pathogen to wild sheep (Heinse, L.M., Hardesty, L.H., and Harris R.B. 2016. Risk of pathogen spillover to bighorn sheep from domestic sheep and goat flocks on private land. Wildlife Society Bulletin, 40(4): 625-633).

Kamathet al. (2019) examined the pneumonia-associated bacterium
Mycoplasma ovipneumoniae
in domestic sheep, domestic goats, bighorn sheep, and mountain goats across the western United States using samples collected from 1984 to 2017. They found that there was a much higher genetic diversity of
Mycoplasma ovipneumoniae
(
i.e.,
many more strains) in domestic animals than in wild populations of bighorn sheep and mountain goats. They concluded that “the ability to predict [
Mycoplasma ovipneumoniae
] spillover into wildlife populations may remain a challenge given the high strain diversity in domestic sheep and need for more comprehensive pathogen surveillance” (Kamath, P.L., K. Manlove, E.F. Cassirer, P.C. Cross, and T.E. Besser. 2019. Genetic structure of Mycoplasma ovipnumoniae informs pathogen spillover dynamics between domestic and wild Caprinae in the western United States. Scientific Reports, 9:15318).

Comment (36):
Multiple commenters stated that the Service's assertion that the proposed regulation is better aligned with ADFG regulations and WAFWA recommendations is inaccurate, because neither ADFG regulations nor WAFWA recommendations prohibit the use of camelids.

Our Response:
The Service agrees with commenters that we were not clear in the assertions made regarding alignment with ADFG regulations and WAFWA recommendations. The amendment to the Arctic NWR regulations does align with ADFG regulations to the extent that it restricts the use of domestic sheep and goats when hunting Dall's sheep, mountain goats, and musk ox in Alaska. The prohibition on camelids on the Arctic NWR is more protective than ADFG's current regulations, which are silent on camelid species. While WAFWA recommendations do not specifically address camelids, they advise wildlife managers to maximize effective separation between wild sheep and potential disease vectors. As camelids are potential disease vectors, the Service has determined that prohibiting camelids on the Arctic NWR is necessary in order to more closely align with WAFWA's recommendations.

Comment (37):
We received a few comments that the proposed prohibition would not expand public use opportunities, but instead would restrict these activities in remote areas where pack animals might be necessary for public access.

Our Response:
The Service finds that the prohibition on certain domestic pack animals in the Arctic NWR is an appropriate measure to conserve Dall's sheep. Ensuring the health and population of Alaska wildlife ensures that wildlife-dependent public use opportunities can continue into the future. While the prohibition does restrict rather than expand certain public use opportunities, it will help preserve wildlife-dependent public uses such as hunting, wildlife observation, and wildlife photography (priority public uses defined by the Improvement

Act) by preventing disease transfer to Dall's sheep and other wildlife species.

Comment (38):
We received a request to amend our proposal to allow the use of camelids for public uses on Arctic NWR a case-by-case basis through a refuge permit or, similarly, to allow pack goat use through implementation of “best management practices.”

Our Response:
The Service considered amending the regulations in a manner that could allow for future uses of these pack animals through an Arctic NWR-administered permit program but decided against doing so. As discussed in our response to Comment
(32),
preventing the introduction (
e.g.,
pathway management) of invasive species and pathogens is the first line and most cost-effective defense against biological invasion. The cost of managing pathogen(s) once transmitted to wild sheep by domestic sheep, goats, and camelids (
i.e.,
eradicating or controlling) is exponentially higher. Additionally, there is uncertainty that if the Dall's sheep populations were to be infected with any these pathogens, the recovery of these populations would be achievable. To conserve the natural diversity of the Arctic NWR and integrity of Dall's sheep populations on the refuge, the best course of action is to prevent the introduction of pathogens until there is more information available on how (or if) pathogens can be effectively managed through other mitigation strategies. As a permitting system would not necessarily prevent the introduction of pathogens and would do nothing to help control an outbreak or mitigate adverse effects to Dall's sheep, the Service chose not to include a permit option in this final rule.

The Service reviewed the North American Packgoat Association (NAPgA) “best management practices” (BMP) document submitted by the commenter and determined that the referenced practices fail to adequately address disease risk mitigation of pack goats beyond careful owner oversite (identification and control), co-mingling mitigation, and lost goat response. Consistent with the reasoning described above, the Service chose not to make an exception in this final rule for pack goat use that adheres to the NAPgA's BMP document standards.

Therefore, we did not make any changes to the rule as a result of this comment.

Comment (39):
Several commenters expressed concerns that the llama packing user group was not informed of or included in the 2011-2015 public review process for the Arctic NWR's CCP and associated NEPA process that ultimately determined that camelid use on the refuge would be prohibited.

Our Response:
The public process that resulted in the 2015 Arctic NWR CCP and Record of Decision (ROD) involved both a 90-day public comment period on the 2011 draft Arctic NWR CCP and associated draft environmental impact statement (draft EIS) (see 76 FR 50490; August 15, 2011) and various public meetings, which the Service informed the public of through extensive outreach. In addition to the 90-day public comment period on the draft CCP and draft EIS, the Service held two open houses, six public hearings, and four community meetings. Through the public comment period, the Service received 612,285 public comments on the draft CCP/draft EIS, 6 of which requested that the Service prohibit certain domestic pack animals due to their potential threat as a wildlife disease vector.

Public comment periods allow agencies to learn more from the public, Alaska Native Tribal governments and corporations, and other agencies, and to refine their proposals as appropriate. Because of this, the agency's final action, which is only made after the conclusion of the public comment period, may be different from the agency's original proposal. In the case of the Arctic NWR CCP, the original proposed action did not contain a prohibition on pack llama use on the refuge, but after reviewing the public comments and additional scientific literature, and considering the purposes of the Arctic NWR, the Service determined that a change to the CCP was warranted, and incorporated a proposed prohibition into the final EIS.

On January 27, 2015, we published a notice of availability (80 FR 4303) of the revised CCP and final EIS for the Arctic NWR; that notice announced a 30-day public review period for those documents, which began when the Environmental Protection Agency published its requisite notice on February 6, 2015 (80 FR 6705). This review period provided the public with an opportunity to understand changes made between the draft CCP/draft EIS and the revised CCP/final EIS, to read responses to public comments on the draft CCP/draft EIS, and to learn about the Service's preferred alternative. That revised CCP includes references to the additional information that informed the inclusion of camelids. This process was consistent with both the Service's planning laws (16 U.S.C. 3101
et seq.
) and policies (602 FW 3), as well as the requirements of NEPA (42 U.S.C. 4332).

Comment (40):
We received several comments that the inclusion of a proposed closure of a use on Arctic NWR (
i.e.,
the prohibition on domestic sheep, goats, and camelids) within the station-specific rulemaking does not adhere to rulemaking and closure procedures for Alaska refuges as provided by ANILCA.

Our Response:
The Service has done extensive outreach on the amendment to the regulations, including, but not limited to, announcing the proposed amendment on the Arctic NWR's public website; mailing and emailing affected Tribal governments, user groups, wildlife organizations, and other partners and stakeholders; informing and communicating with both the ADFG and Alaska's congressional representatives; publishing the proposed rule in the
Federal Register
(85 FR 20030; April 9, 2020) with a 60-day public comment period; holding a virtual public hearing on May 13, 2020 (due to the COVID-19 pandemic it could not be held safely in person); publishing notice of the proposed Arctic NWR regulation and virtual public hearing in both regional and local newspapers; posting notice of the proposed Arctic NWR regulation at community post offices; and announcing the proposed Arctic NWR regulation via two public service announcements run on KUAC (Fairbanks). We received numerous comments on the proposed rule, including the Arctic NWR regulation, and offer our responses to those comments in this rule. Therefore, we have fully satisfied the requirements for notice-and-comment rulemaking under the Administrative Procedure Act (5 U.S.C. 551
et seq.
).

The commenters state that the prohibition of certain domestic pack animals in the Arctic NWR constitutes a “closure” that triggers additional notice and public hearing requirements under ANILCA. The Service remains in full compliance with ANILCA because we conducted the types of public outreach specified at section 1110(a) of ANILCA and the associated implementing regulations (
i.e.,
43 CFR 36.11 and 50 CFR 36.42). Regardless, the State of Alaska has requested that the promulgation of regulations for NWRs in Alaska be conducted under separate rulemaking processes, and not be included in the larger annual hunting and fishing rulemaking for the Refuge System. They state this is preferable because of the unique public input and notice requirements mandated by ANILCA and the associated implementing regulations. We agree, and we intend to conduct rulemaking

for NWRs in Alaska separately from the annual station-specific regulations in the future.

Comment (41):
We have received comments from the State of Alaska and AFWA directing our attention to the recent
Sturgeon
v.
Frost
decision of the U.S. Supreme Court. 139 S. Ct. 1066 (2019). These comments note that the Supreme Court held the National Park Service cannot impose regulations on lands it does not own and reaffirmed the State of Alaska's right to manage fish, wildlife, and public access over non-Federal lands, including submerged lands.

Our Response:
We agree with the ADFG and AFWA that the State of Alaska has the right to manage fish, wildlife, and public access over non-Federal lands, including submerged lands owned by the State of Alaska. We value the partnership with the State of Alaska for managing the wildlife, lands, and waters within Alaska NWRs for the benefit of the American public. The Alaska regulation in this rule applies t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-16003. Public record. Not legal advice.