[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Rules and Regulations]
[Page 16635-16639]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-19]
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Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 36
Refuge Specific Regulations; Public Use; Kodiak National Wildlife
Refuge; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-R7-NSR-2009-0055]
[70133-1265-0000-4A]
50 CFR Part 36
RIN 1018-AW15
Refuge Specific Regulations; Public Use; Kodiak National Wildlife
Refuge
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are updating
our regulations for Kodiak National Wildlife Refuge (NWR) to codify
decisions from our 2007 Kodiak NWR Revised Comprehensive Conservation
Plan (CCP). Specifically, we are amending our current seasonal closure
of the O'Malley River area within Kodiak National Wildlife Refuge to
allow operation of a bear-viewing program; prohibiting camping within
one-quarter mile of public use cabins and Federal and State
administrative facilities on the Kodiak NWR, with authorized
exceptions; and prohibiting snowmachine use on approximately 4,972
acres of important brown-bear denning habitat in the Den Mountain area.
We are also making technical corrections to the authorities section of
our regulations.
DATES: This rule is effective on May 3, 2010.
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
observation 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.
Actions to Implement the Comprehensive Conservation Plan
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. This rule implements actions
described in the CCP intended to address these issues.
O'Malley River Area and 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 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
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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 will be
modified to allow this use. This rule amends our regulations to allow
the recommended viewing program to proceed.
Public Use Cabin and Camping Area Management: There are currently
nine 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. The CCP calls for a rule prohibiting
camping within one-quarter mile of public use cabins and Federal and
State administrative facilities. This rule adopts that change, reducing
the likelihood of conflict or trespass by prohibiting camping within
one-quarter mile of any State or Federal facility located on Kodiak
Refuge lands. Exceptions to the one-quarter mile limit may be
considered by the Refuge Manager on a case-by-case basis, and camping
nearer to State or Federal facilities may be authorized with a Refuge
Special Use Permit.
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
this rule, we will 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, although the final
document mistakenly reports the size of the area as 2,820 acres. The
actual size of the area analyzed for closure during preparation of the
Refuge CCP was approximately 4,670 acres. A minor boundary adjustment
to make it easier for the public to identify the closure area on the
ground and facilitate enforcement resulted in the final closure area
size of 4,972 acres.
Technical corrections: We are making minor changes 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 will read as
follows: 16 U.S.C. 460(k) et seq., 668dd-668ee, 3101 et seq.
Response to Comments Received
In the October 8, 2009 Federal Register (74 FR 52110), we published
a proposed rule and invited public comments. We also participated in a
local radio interview followed by a public forum concerning the
proposed rule. The forum was advertised in the Kodiak local newspaper
and on local radio. About 30 people attended the forum and the local
newspaper printed a follow-up article summarizing the event.
We received five comment letters: One from the State of Alaska, one
from the Alaska Citizen's Advisory Commission on Federal Areas, and
three from private individuals. All five comments offered general
support for our proposals to prohibit snowmachines in the vicinity of
Den Mountain and restrict camping near administrative facilities. Both
the State of Alaska and the Alaska Citizen's Advisory Commission on
Federal Areas suggested a minor change in the proposed rule to allow
the Refuge Manager to authorize camping closer than one-quarter mile
from administrative structures on a case-by-case basis. The same
commentors also requested that the final rule contain a clarification
of the basis for the size (4,972 acres) of the proposed Den Mountain
snowmachine closure.
Four of the five comments we received expressed general support for
the proposal to modify the existing O'Malley River area closure to
permit operation of a bear-viewing program. One individual, while
expressing support in principle for the bear-viewing program, posed a
number of questions about operational details of the program and
enforcement of program stipulations. A second individual expressed
opposition to opening of the O'Malley area for a public bear-viewing
program on the grounds that it would lead to negative impacts on bears;
however, they supported opening the area to researchers and
photographers.
In response to these comments, this final rule states that the
Refuge Manager may authorize exceptions to the one-quarter mile camping
limit, and we clarify the basis for the size of the Den Mountain
closure in the SUPPLEMENTARY INFORMATION section. The O'Malley closure
amendment remains unchanged because the Refuge CCP and Environmental
Impact Statement determined that development of an O'Malley area bear-
viewing program will produce net benefits for Kodiak's bears as well as
for visitors.
Regulatory Planning and Review (Executive Order (E.O.) 12866)
The Office of Management and Budget has determined that this rule
is not a significant rule.
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(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
will not have a significant economic impact on a substantial number of
small entities.
This rule will impact visitor use associated with bear viewing in
the O'Malley River area. Modifying the existing O'Malley River closure
will create a new, high-quality public recreation opportunity in an
area that is otherwise seasonally closed to the public. We estimate
that annually an additional 30 to 144 people will 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 annual 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 annually participate in a bear-viewing program, this
rule will have a minimal beneficial effect on these small businesses.
With the small increase in overall visitation anticipated from this
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 will 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
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.
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
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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
of 1973, as amended (16 U.S.C. 1531 et seq.) 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.
0
For the reasons set out in the preamble, we are amending title 50, part
36 of the Code of Federal Regulations as follows:
PART 36--[AMENDED]
0
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.
0
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, unless such activity is specifically authorized in a Refuge
Special Use Permit. 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: March 23, 2010
Will Shafroth,
Acting Assistant Secretary Fish and Wildlife and Parks.
[FR Doc. 2010-7370 Filed 3-31-10; 8:45 am]
BILLING CODE 4310-55-S