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Federal Register / Vol. 86, No. 166 / Tuesday, August 31, 2021 / Rules and Regulations 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 will 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. We disagree with the one commenter who sought to distinguish this rulemaking from that case on the basis that 1 there were multiple rulemakings before the court, and 2
this rule is larger than those rules were in terms of the number of openings and expansions. These differences do not matter to the courts conclusion that analysis of cumulative impacts through a cumulative impacts report is appropriate. First, the court reached a conclusion about what needs to be analyzed for each individual rulemaking, even though the same challenge was brought against multiple rulemakings. Second, the court could have, but did not, set any limit on the number of openings and expansions the cumulative impacts report could cover.
The court likely did not do so because a rule with more openings and expansions will simply have more EAs and categorical exclusions in order to cover each station, and the cumulative impacts report will correspondingly consider a larger number of potential cumulative impacts as thoroughly as in any other iteration of this annual rule.

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We also disagree with one commenters contention that the use of lead ammunition or tackle presents an extraordinary circumstance that will not allow for the use of a categorical exclusion. This question is directly addressed by managers when they determine whether a categorical exclusion is appropriate for a given expansion to hunting and fishing on a refuge. Just as the level of lead introduced from hunting and sport fishing has been found unlikely to produce significant adverse impacts in all of our environmental assessments, it was not considered to have significant adverse impacts for those stations where an expansion to the hunting and/or fishing programs met the criteria for a categorical exclusion. Finally, as the use of lead ammunition and tackle has been allowed on refuges for decades in the ordinary course of operations, it cannot reasonably be considered an extraordinary circumstance for any station.
A few commenters raised a separate but related concern that they believed it improper for our NEPA documents to be draft rather than final documents after the Federal Register published the proposed rule. These commenters misunderstand our rulemaking process.
Our longstanding approach to this annual rulemaking is that we have the required public comment period for our NEPA documents and the required public comment period for our proposed rule run concurrently and end on the same date. The NEPA documents cannot be finalized without public comment, just as we cannot issue a Final Rule before the public has commented on our proposed rule. Not only is this approach compliant with all applicable laws and regulations but it also provides important advantages for public input. First, because we do create our draft NEPA documents before drafting the proposed rule, so that our environmental impact findings can inform the proposed rule, ending both public comment periods on the same date results in longer public comment periods for our NEPA documents. As an example, in this rulemaking cycle, instead of the 30 days we would otherwise typically provide for an EA, for the EA of Great Dismal Swamp NWR
the public was given 88 days to provide comments. Second, with draft NEPA
documents we are able to make changes to the EA that reflect changes made to the openings and expansions in the rule in response to public comment on the rule, and vice versa. It would be cumbersome, and potentially cause confusion for the public, to go through
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a process of revising finalized EAs to make these same changes. All of our EAs and other underlying planning documents will be finalized and made public alongside the Final Rule, the content of which they fully informed.
In response to comments, we reviewed all EAs and categorical exclusions. Based on that review, we determined that the categorical exclusion for Necedah NWR may require further consideration, and we do not include the proposed expansions at Necedah NWR in this final rule. 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 also disagree with an assertion that, for any of the stations in this rule, the analysis in the respective EA or categorical exclusion is inadequate under NEPA.
We removed the proposed expansions at Necedah NWR from the rule, but because they would have been administrative expansions, this did not require revising any of the proposed regulatory changes for Necedah NWR.
Thus, we did not make any changes to the regulatory provisions in this rule as a result of these comments.
Comment 8: We received several comments that alleged the proposed rule is, or certain parts of the proposed rule are, a violation of the Services 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 668dda4B. These commenters also expressed concern about the health and genetic diversity of populations of the species being hunted.
Our Response: We do not allow hunting on a refuge if it is found incompatible with that individual refuges 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. 668dda4B.
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 refuges role within an ecosystem, applicable
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