[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]

[[Page 16635]]


Part IV

Department of the Interior


Fish and Wildlife Service


50 CFR Part 36

Refuge Specific Regulations; Public Use; Kodiak National Wildlife 
Refuge; Final 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: Final rule.


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).



    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 
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 
    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 
    (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 
    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 

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 

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

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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 

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 

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 are amending 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 

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, 

    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]