[Federal Register: October 8, 2009 (Volume 74, Number 194)]
[Proposed Rules]               
[Page 52109-52113]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 52109]]


Part VI

Department of the Interior


Fish and Wildlife Service


50 CFR Part 36

Refuge Specific Regulations; Public Use; Kodiak National Wildlife 
Refuge; Proposed Rule

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Fish and Wildlife Service

50 CFR Part 36

RIN 1018-AW15

Refuge Specific Regulations; Public Use; Kodiak National Wildlife 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend our regulations for Kodiak National Wildlife Refuge (NWR) to 
codify decisions from our 2007 Kodiak NWR Revised Comprehensive 
Conservation Plan (CCP). We propose to: amend our current seasonal 
closure of the O'Malley River area to public use within Kodiak National 
Wildlife Refuge to allow operation of a bear-viewing program; prohibit 
camping within one-quarter mile of public use cabins and Federal and 
State administrative facilities on the Kodiak NWR; and prohibit 
snowmachine use on approximately 4,972 acres of important brown-bear 
denning habitat in the Den Mountain area. We also propose technical 
corrections to the authorities section of our regulations. We seek 
comments from the public on this proposed rule.

DATES: To ensure that we are able to consider your comment on this 
proposed rule, you must send it on or before December 7, 2009. We must 
receive requests for public hearings, in writing, at the address shown 
in the FOR FURTHER INFORMATION CONTACT section by November 23, 2009.

ADDRESSES: You may submit comments on our proposed rule content by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand delivery: Public Comments Processing, 
Attn: Docket No. FWS-R7-NSR-2009-0055; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the ``Public Availability of 
Comments'' section below for more information).

FOR FURTHER INFORMATION CONTACT: Brian Glaspell, (907) 487-0248 
(phone); (907) 487-2144 (fax).



    Kodiak National Wildlife Refuge was established in 1941 for the 
purpose of protecting the natural feeding and breeding ranges of brown 
bears and other wildlife on Uganik and Kodiak Islands. The Alaska 
National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3101 et 
seq.; 43 U.S.C. 1602) expanded the purposes of the refuge. It states 
the purposes for which Kodiak National Wildlife Refuge was 
``established and shall be managed include:
    (i) to conserve fish and wildlife populations and habitats in their 
natural diversity including, but not limited to, Kodiak brown bears, 
salmonoids, sea otters, sea lions and other marine mammals and 
migratory birds;
    (ii) to fulfill the international treaty obligations of the United 
States with respect to fish and wildlife and their habitats;
    (iii) to provide, in a manner consistent with the purposes set 
forth in subparagraphs (i) and (ii), the opportunity for continued 
subsistence uses by local residents; and
    (iv) to ensure, to the maximum extent practicable and in a manner 
consistent with the purposes set forth in paragraph (i), water quality 
and necessary water quantity within the refuge.''
    Kodiak Refuge now encompasses almost 2 million acres in 
southwestern Alaska, including about two-thirds of Kodiak Island, all 
of Uganik and Ban Islands, and a portion of Afognak Island. The City of 
Kodiak, where refuge headquarters are located, is about 250 air miles 
south of Anchorage and 20 miles northeast of the refuge boundary, on 
Kodiak Island.
    Kodiak Refuge is characterized by a large range of habitats within 
a relatively small geographic area. Because of this, the refuge 
supports some of the highest densities of brown bears, nesting bald 
eagles, and spawning salmon found anywhere in North America. The 
mountainous interior of Kodiak Island, with several peaks over 4,000 
feet in elevation, is covered by lush, dense vegetation during the 
summer, with alpine vegetation on the highest slopes. No place on the 
refuge is more than 15 miles from the ocean. Access to the refuge is by 
float plane and boat. Kodiak Refuge supports runs of five species of 
Pacific Salmon (Chinook, sockeye, coho, pink, and chum) and steelhead. 
Rainbow trout, Dolly Varden, and Arctic char are also found in refuge 
    Kodiak Refuge contains some of the best brown bear habitat in the 
world, and some of the highest concentrations of brown bears found 
anywhere, with an estimated population of 3,000 bears. These bears feed 
on spawning salmon and forage throughout most of the refuge. The Karluk 
River drainage, including the O'Malley River at its upper end, is one 
of the most important feeding areas for bears, with as many as 200 
bears using the Karluk area from mid-June through the end of September.
    Under our regulations implementing ANILCA, all refuge lands in 
Alaska are open to public recreational activities as long as such 
activities are conducted in a manner compatible with the purposes for 
which the refuge was established (50 CFR 36.31). Such recreational 
activities include, but are not limited to, sightseeing, nature 
observations and photography, hunting, fishing, boating, camping, 
hiking, picnicking, and other related activities [50 CFR 36.31(a)].
    The National Wildlife Refuge Administration Act of 1966 (16 U.S.C. 
668dd-668ee), as amended by the National Wildlife Refuge System 
Improvement Act of 1997, defines ``wildlife-dependent recreation'' and 
``wildlife-dependent recreational use'' as ``hunting, fishing, wildlife 
observation and photography, or environmental education and 
interpretation'' [16 U.S.C. 668ee(2)]. We encourage these uses, and 
they receive emphasis in management of the public use of the refuge.

Proposed Changes

    The 2007 Kodiak Refuge Comprehensive Conservation Plan (CCP) 
addressed four primary issues: protection of bear concentration areas, 
management of public use cabins, management of camping areas, and 
management of the O'Malley River area. When we finalize it, this 
proposed rule would implement actions described in the CCP intended to 
address these issues.

O'Malley River Area and Proposed Bear Viewing Program:

    The O'Malley River is part of the Karluk Lake watershed in the 
southwestern portion of Kodiak Refuge. Karluk Lake and Karluk River 
watershed support the largest runs of sockeye salmon on the Kodiak 
Archipelago. Approximately 20 to 25 percent of these fish spawn in the 
O'Malley River system. The Karluk Lake drainage also supports one of 
the highest reported densities of brown bear, with the

[[Page 52111]]

highest seasonal concentrations occurring in the O'Malley River area.
    Until 1992, the O'Malley River area was open to unregulated public 
use, including guided and unguided day use and overnight camping. In 
1992, after determining that unregulated public use was having 
unacceptable impacts on feeding bears, Kodiak Refuge established a 
temporary closure of the O'Malley River area. The closure prohibited 
all public use and entry, except for participants in a highly 
structured refuge-sponsored bear-viewing program. The bear-viewing 
program was a means to allow continued public use while eliminating the 
unacceptable impacts caused by unregulated activities.
    The 1992 Service-run O'Malley River viewing program was successful 
in reducing human impacts to bears and also proved popular with the 
public. In 1993, structured O'Malley River bear viewing and the 
temporary area closure were suspended while a contractor was selected 
to operate the program in place of the Service. In 1994, the temporary 
closure was reinstated and the program was successfully operated by a 
private contractor under a Refuge-issued permit. Although the privately 
operated viewing program met the Refuge goal of providing public use 
opportunities while reducing impacts to bears, a challenge to the 
process used to select the contractor led to cancellation of the 
program after one season. On July 19, 1995, we issued a permanent 
regulation, which closed approximately 2,560 acres of the O'Malley 
River area to all public access, occupancy, and use from June 25 
through September 30 [60 FR 37308, July 19, 1995; 50 CFR 36.39(j)]. The 
O'Malley River area has remained seasonally closed to the public since 
that time.
    During preparation of the 2007 Kodiak Refuge CCP and Environmental 
Impact Statement, the public expressed significant interest in re-
establishing an O'Malley River bear-viewing opportunity. We analyzed 
the likely impacts of several different viewing program alternatives 
against the existing seasonal closure. The analysis was greatly 
facilitated by research conducted in the O'Malley River area during the 
periods 1991-94 and 2003-04. That research showed that structured bear 
viewing could occur at O'Malley River, with minimal impacts to bears.
    Our final CCP (72 FR 21037; April 27, 2007) calls for us, in 
cooperation with the Alaska Department of Fish and Game, to develop and 
implement a bear-viewing program at O'Malley River. The regulation now 
closing the O'Malley River area to all use on a seasonal basis would 
need to be modified to allow this use. When finalized, this proposed 
rule would allow development of the recommended viewing program to 

Public Use Cabin and Camping Area Management:

     There are currently seven public use cabins on the Refuge, all 
remotely located and accessible only by float plane or boat. The CCP 
allows construction of up to two additional cabins and conversion of 
administrative cabins and cabins on acquired lands to public use. A 
permit and $45 per night fee are required to occupy a public use cabin. 
Permits are available by reservation, and permit holders have exclusive 
use of reserved cabins and associated facilities (outhouse, meat 
    Tent camping is unrestricted on most of the Refuge. Camping in 
close proximity to public use cabins or administrative facilities 
increases the likelihood of conflict with other users and trespass use 
of administrative facilities. When finalized, this proposed rule would 
reduce the likelihood of conflict or trespass by prohibiting camping 
within one-quarter mile of any State or Federal facility located on 
Kodiak Refuge lands. The CCP calls for a rule prohibiting camping 
within one-quarter mile of public use cabins and Federal and State 
administrative facilities.

Prohibiting Snowmachine Use in Den Mountain Area:

    Under our regulations implementing ANILCA, the use of snowmachines 
(during periods of adequate snow cover and frozen river conditions) for 
traditional activities and for travel to and from villages and home 
sites and other valid occupancies is currently allowed (43 CFR 36.11). 
However, in studies conducted at locations other than Kodiak, 
snowmachines have been shown to disturb denning bears, sometimes 
resulting in den abandonment. Of particular concern are adverse impacts 
on denning females with cubs. If females abandon dens as a result of 
snowmachine disturbance, newborn cubs are especially threatened.
    On Kodiak Island, studies have documented concentrated bear 
denning, primarily by adult females, within the Den Mountain area of 
Kodiak Refuge. Den Mountain is located near places traditionally 
accessed by snowmachine operators along western Kizhuyak Bay. Terrain 
in the area affords snowmachine operators relatively unfettered access 
between the bay and mountain when adequate snow cover exists. Under the 
proposed rule, we would continue to allow appropriate use of 
snowmachines on most of the Refuge, except for approximately 4,972 
acres of accessible and important bear denning habitat on Den Mountain. 
The CCP calls for a regulation closing this area to snowmachine use.

Technical corrections:

    We propose to update the authority citation for the regulation, 
correct an error in the current regulation, eliminate unneeded 
references, and conform to current citation format. The revised 
Statutory Authority citation would read as follows: 16 U.S.C. 460(k) et 
seq., 742b, 668dd-668ee, 3101 et seq.

Request for Comments

    You may submit comments and materials on this proposed rule by any 
one of the methods listed in the ADDRESSES section. We will not accept 
comments sent by e-mail or fax or to an address not listed in the 
ADDRESSES section.
    If you submit a comment via http:// www.regulations.gov, your 
entire comment--including any personal identifying information--will be 
posted on the website. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S Fish and Wildlife 
Service, Alaska Regional Office, Division of Conservation Planning and 
Policy, 1011 East Tudor Road, Anchorage, AK 99503.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Clarity of This Regulation: We are required by Executive Orders 
12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to 

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all rules in plain language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 

Regulatory Planning and Review (Executive Order (E.O.) 12866)

    This document is not a significant rule.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act [as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)], 
whenever a Federal agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions) (5 U.S.C. 601 et 
seq.). However, no regulatory flexibility analysis is required if the 
head of an agency certifies that the rule would not have a significant 
economic impact on a substantial number of small entities. Thus, for a 
regulatory flexibility analysis to be required, impacts must exceed a 
threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA 
amended the Regulatory Flexibility Act to require Federal agencies to 
provide a statement of the factual basis for certifying that a rule 
would not have a significant economic impact on a substantial number of 
small entities.
    This proposed rule would impact visitor use associated with bear 
viewing in the O'Malley River area. Modifying the existing O'Malley 
River closure would create a new, high-quality public recreation 
opportunity in an area that is otherwise seasonally closed to the 
public. We estimate an additional 30 to 144 people would visit the 
Refuge to view bears, generating approximately 120 to 576 additional 
recreation use-days at the Refuge (assuming an average 4-day visit). 
These additional recreation use-days represent between 1 and 7 percent 
of the average recreation use-days on Kodiak Refuge.
    Small businesses within the retail trade industry (such as hotels, 
gas stations, bear-viewing guides, etc.) (NAIC [North American Industry 
Classification] 44), accommodation and food service establishments 
(NAIC 72), and air taxi operators (NAIC 48) may benefit from some 
increased spending generated by additional refuge visitation. Eighty 
percent of establishments in the Kodiak Island Borough qualify as small 
businesses. This statistic is similar for retail trade establishments 
(80 percent), accommodation and food service establishments (67 
percent), and transportation establishments (75 percent). Due to the 
limited bear-viewing season and small number of people (30 to 144 
people) who would participate in a bear-viewing program, this proposed 
rule would have a minimal beneficial effect on these small businesses.
    With the small increase in overall visitation anticipated from this 
proposed rule, it is unlikely that a substantial number of small 
entities will have more than a small economic effect (benefit) from the 
increased spending near the Refuge. Therefore, we certify that this 
rule would not have a significant economic effect on a substantial 
number of small entities as defined under the Regulatory Flexibility 
Act. An initial/final Regulatory Flexibility Analysis is not required. 
Accordingly, a Small Entity Compliance Guide is not required.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under SBREFA [5 U.S.C. 804(2)]. This 
    a. Does not have an annual effect on the economy of $100 million or 
more. The additional 30 to 144 visitors participating in bear viewing 
at Kodiak Island Refuge would generate only a minimal economic impact. 
Consequently, the benefit of this rule for businesses would not be 
sufficient to make this a major rule.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. We do not expect the minimal increase 
in bear-viewing opportunities to significantly affect costs or prices 
in any sector of the economy.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. This 
proposed rule represents only a small proportion of recreational 
spending by a small number of recreational visitors. Therefore, this 
rule would have no measurable economic effect on the wildlife-dependent 
industry, which has annual sales of equipment and travel expenditures 
of $72 billion nationwide.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State 
local or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

    Under the criteria in E.O. 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required.

Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism summary impact statement. A Federalism summary impact 
statement is not required.

Civil Justice Reform (E.O. 12988)

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that this rule does not unduly burden the judicial system 
and that it meets the requirements of sections 3(a) and 3(b)(2) of the 

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Consultation and Coordination with Indian Tribal Governments (E.O. 

    In accordance with E.O. 13175, we have evaluated possible effects 
on federally recognized Indian tribes and have determined there are no 

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    This rule constitutes a major Federal action significantly 
affecting the quality of the human environment. We analyzed this rule 
in accordance with the criteria of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4332(C)) (NEPA) and our Departmental Manual part 
516 chapter 6, Appendix 1. We prepared a draft Environmental Impact 
Statement (DEIS) under NEPA, and made it available for comment. 
Finally, we made our final revised CCP and EIS available for a 30-day 
comment period beginning September 29, 2006 (71 FR 57560). We announced 
availability of the Record of Decision for the Final Revised CCP and 
Environmental Impact Statement on April 27, 2007 (72 FR 21037). To 
obtain a copy of the CCP/EIS, contact Brian Glaspell (see FOR FURTHER 

Data Quality Act

    In developing this rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

Endangered Species Act Section 7 Consultation

    In 2004, a Section 7 consultation under the Endangered Species Act 
was conducted for the Draft Revised Comprehensive Conservation Plan, 
Kodiak National Wildlife Refuge. The plan was found to be fully 
consistent with Section 7 of the Endangered Species Act by the Service 
and the National Marine Fisheries Service.

Primary Author

    Brian Glaspell, Visitor Services Manager, Kodiak National Wildlife, 
is the primary author of this rulemaking document.

List of Subjects in 50 CFR Part 36

    Alaska, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Wildlife refuges.

    For the reasons set out in the preamble, we propose to amend title 
50, part 36 of the Code of Federal Regulations as follows:


    1. Revise the authority citation for part 36 to read as follows:

    Authority: 16 U.S.C. 460(k) et seq., 668dd-668ee, 3101 et seq.

    2. Amend Sec. 36.39 by revising the first sentence of paragraph 
(j)(1) and paragraph (j)(2) and adding paragraphs (j)(4) and (j)(5) to 
read as follows:

Sec.  36.39  Public use.

* * * * *
    (j) * * *
    (1) Seasonal public use closure of the O'Malley River Area. The 
area within the Kodiak National Wildlife Refuge described in this 
paragraph (j)(1) is closed to all public access, occupancy, and use 
from June 25 through September 30, except for individuals participating 
in the O'Malley River Bear-Viewing Program. * * *
    (2) Access easement provision. Notwithstanding any other provision 
of this paragraph (j), there exists a 25-foot-wide access easement on 
an existing trail within the Koniag Inc. Regional Native Corporation 
lands within properties described in paragraph (j)(1) of this section 
in favor of the United States of America.
* * * * *
    (4) Camping prohibition near facilities. On lands within Kodiak 
National Wildlife Refuge, you are prohibited from camping within one-
quarter mile of public use cabins and Federal and administrative 
facilities. An administrative facility means any facility or site 
administered by the U.S. Fish and Wildlife Service or the State of 
Alaska for public entry or other administrative purposes, including but 
not limited to cabins, storage buildings, piers, docks, weirs, refuge 
offices, visitor centers, and public access and parking sites. Maps of 
the locations of public use cabins and administrative facilities are 
available from Refuge Headquarters in Kodiak, Alaska.
    (5) Snowmachine prohibition. Snowmachines, as defined in Sec. 36.2, 
are prohibited within an approximately 4,972-acre area encompassing Den 
Mountain and adjacent highlands. The summit of Den Mountain is located 
within Township 29 South, Range 24 West, Seward Meridian, Alaska. Maps 
of the closed area are available from Refuge Headquarters in Kodiak, 

    Dated: August 27, 2009
Thomas L. Strickland
Assistant Secretary, Fish and Wildlife and Parks
[FR Doc. E9-23931 Filed 10-7-09; 8:45 am]