[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]
[DOCID:fr08oc09-26]
[[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
[[Page 52110]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 36
[FWS-R7-NSR-2009-0055]
[70133-1265-0000-4A]
RIN 1018-AW15
Refuge Specific Regulations; Public Use; Kodiak National Wildlife
Refuge
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).
SUPPLEMENTARY INFORMATION:
Background
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
waters.
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
proceed.
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
cache).
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
write
[[Page 52112]]
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,
etc.
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
communities.
(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
rule:
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
E.O.
[[Page 52113]]
Consultation and Coordination with Indian Tribal Governments (E.O.
13175)
In accordance with E.O. 13175, we have evaluated possible effects
on federally recognized Indian tribes and have determined there are no
effects.
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
INFORMATION CONTACT).
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:
PART 36--[AMENDED]
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,
Alaska.
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]
BILLING CODE 4310-55-S