52110 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules 

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 onequarter 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 


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Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules 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 bearviewing 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 bearviewing 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 onequarter 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 


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52112 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules 

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 usedays at the Refuge (assuming an average 

4–day visit). These additional recreation 

use-days represent between 1 and 7 

percent of the average recreation usedays 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 bearviewing 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. 


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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., 668dd668ee, 3101 et seq. 

2. Amend §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: 

§ 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-footwide 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 onequarter 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 §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 


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