[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11121]


[[Page Unknown]]

[Federal Register: May 11, 1994]


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Part VI





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 36




Seasonal Closure of the O'Malley River Area in the Kodiak National 
Wildlife Refuge; Rule and Proposed Rule
DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 36

RIN 1018-AC49

 
Seasonal Closure of the O'Malley River Area in the Kodiak 
National Wildlife Refuge

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim rule and request for comments.

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SUMMARY: The Fish and Wildlife Service (Service) issues this interim 
regulation to limit public access, occupancy and use of a portion of 
the O'Malley River drainage and adjacent lands bordering Karluk Lake 
and O'Malley Lake within the Kodiak National Wildlife Refuge (Refuge). 
Public use of a parcel of land and water consisting of approximately 
3,955 acres will be restricted from June 25, 1994, through September 
30, 1994, to individuals participating in a refuge-sponsored bear 
viewing program.
    This closure is necessary to prevent incompatible conflicts between 
people and brown bears at an important bear concentration area, during 
the season when conflicts and impacts on bears are most prevalent. It 
is intended to control increasing human use of a very important bear 
concentration area so that human uses in the area remain compatible 
with refuge purposes. Research and experience have clearly demonstrated 
that control of human activity in major bear concentration areas is 
necessary to avoid conflicts between people and bears. Organized bear 
viewing programs elsewhere in Alaska have proven highly successful in 
reducing conflict to an acceptable level while maintaining quality 
public use opportunities. This action will allow quality public viewing 
and photography opportunities through the O'Malley Bear Viewing Program 
without adversely affecting bear use of this important feeding area. 
After a thorough evaluation of the bear viewing program conducted 
during 1994, the Service will decide whether to continue the program.
    A proposed rule that would provide a permanent seasonal restriction 
on public access is being published elsewhere in this separate part of 
the Federal Register with this interim rule.

DATES: This interim rule is effective from June 25, 1994, through 
September 30, 1994. Comments may be submitted by July 11, 1994.

ADDRESSES: Comments should be addressed to Assistant Regional 
Director--Refuges and Wildlife, U.S. Fish and Wildlife Service, 
Attention: Tony Booth, 1011 E. Tudor Road, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Jay Bellinger, Refuge Manager, Kodiak 
National Wildlife Refuge, 1390 Buskin River Road, Kodiak, Alaska 99615, 
Telephone: (907) 487-2600, or Tony Booth, Anchorage, AK, Telephone: 
(907) 786-3384.

SUPPLEMENTARY INFORMATION:

Background

    President Franklin D. Roosevelt established the Kodiak National 
Wildlife Refuge by Executive Order 8857 on August 14, 1941, to 
``preserve the natural feeding and breeding ground of the brown bear 
and other wildlife.'' This action withdrew about 1.9 million acres from 
unreserved public domain on Kodiak and Uganik Islands. Congress 
redesignated the Kodiak National Wildlife Refuge in 1980 when it 
enacted the Alaska National Interest Lands Conservation Act (ANILCA). 
All the lands, water, interests, and submerged lands retained in 
federal ownership at the time of statehood were included in the refuge. 
This legislation also added about 50,000 acres of public lands on 
Afognak and Ban Islands to Kodiak National Wildlife Refuge. Section 
303(5)(b) of ANILCA states generally that the purposes for which Kodiak 
National Wildlife Refuge is 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 purposes set 
forth in subparagraphs (i) and (ii), the opportunity for continued 
subsistence use by local residents; and (iv) to ensure, to the maximum 
extent practicable and in a manner consistent with the purposes set 
forth in subparagraph (i), water quality and necessary water quantity 
within the refuge.
    The Kodiak Refuge Comprehensive Conservation Plan (U.S. Fish and 
Wildlife Service, 1987) provides primary guidance for management of the 
Kodiak National Wildlife Refuge. According to its approved alternative, 
``the Service will undertake detailed management planning to guide 
implementation of the plan and operation of the refuge.'' In support of 
that mandate, utilizing a full spectrum of public involvement, the 
final draft of the Kodiak Refuge Public Use Management Plan has been 
written. This interim rule and the proposed rule which is being 
published elsewhere in this separate part of the Federal Register are a 
result of direction provided by both these planning processes.
    During 1990-91 the Service tested a trial bear viewing program, 
staffed by Refuge personnel, at the Dog Salmon Creek Fish Pass on 
Kodiak Refuge. No closure was utilized for unguided use, but guided use 
was restricted through the special use permit process. This trial bear 
viewing program was successful except that the presence of artificial 
fish passage structures significantly impaired the quality of viewing 
opportunities available to the public.
    Public use is increasing about ten percent annually on the Kodiak 
National Wildlife Refuge and available information indicates the rate 
of increase is even greater in the O'Malley River area. Also, a trend 
of increasing adverse interactions between people and bears has 
occurred in the O'Malley River area in recent years. Generally, brown 
bears are negatively impacted by expanding human use. Bears are often 
killed ``in defense of life or property'' as a consequence of increased 
levels of human activity in areas that are used heavily by bears. In 
addition to mortality, interaction between bears and people can impose 
stress on bears that ultimately affect survival and/or productivity of 
bears as well as jeopardize human safety.
    In 1991, a research camp was established on the O'Malley River to 
study bear use of the area and potential impacts of public use on 
bears. Research data document human impacts on bears in the O'Malley 
River area and confirm the need to control or restrict human uses in 
this area. The O'Malley River area supports approximately 33% of the 
entire brown bear population in the Karluk Lake basin. At least 110 
different bears used the O'Malley River area during July-September 
1991, with peak use occurring during the second and third weeks of 
July. More importantly, refuge research data suggest that frequently 
sighted bears represent only a small portion of the total population 
utilizing the O'Malley River area.
    During approximately 250 hours of intensive observation of bear 
groups in the O'Malley River area in 1991, 66 interactions between 
bears and people were recorded. One-third of the interactions disturbed 
and/or displaced the bears by causing them to run or walk away from 
people. In one instance, people caused the separation of a female from 
one of her first-year cubs; while trying to locate its mother, the cub 
was subsequently killed by another bear.
    Alternatives considered in response to the public use/bear problems 
in the O'Malley River area include closing the area to all public use, 
which would satisfy the need to conserve bears, but would eliminate all 
opportunity for public use during the period of closure. The area could 
be left open to provide ample public use opportunity, but this use 
would have incompatible impacts on refuge bear populations. Seasonal 
closure in support of a bear viewing program not only would satisfy the 
need to conserve bears, but would also make possible continued public 
use. No other alternative could provide both benefits.
    The refuge's trial bear viewing program initiated at Dog Salmon 
Creek was moved to the O'Malley River area in 1992 because of the 
documented problems and incompatibility between high and unregulated 
public use and bears in the O'Malley area. A temporary closure, 
pursuant to 50 CFR 36.42, was utilized to avoid conflicts between 
people and bears at this important seasonal bear concentration area. 
Goals of the trial O'Malley bear viewing program were:
    1. To replace an incompatible level of unrestricted use of the 
O'Malley River area during key bear use periods, with a compatible 
recreational opportunity which would protect and conserve brown bear 
populations.
    2. To develop and maintain a program that provides the general 
public a safe and professional guided bear viewing opportunity, that is 
consistent with Refuge management objectives and policies established 
in the Comprehensive Conservation Plan.
    The program proved popular with the public; in 1992, 88 persons 
participated. The Service was satisfied that both program goals were 
adequately met.
    The O'Malley Bear Viewing Program is designed to increase wildlife 
viewing opportunities for the public. The brown bears of Kodiak 
National Wildlife Refuge offer unique and highly desirable 
opportunities for viewing; opportunities that are most safely and 
effectively provided by a structured viewing program.
    Structured wildlife viewing programs have been used successfully as 
a conservation management tool and to enhance public use opportunities 
elsewhere in Alaska. The best known program is conducted at the McNeil 
River State Game Sanctuary by the Alaska Department of Fish and Game. 
The McNeil River program has gained a worldwide reputation for quality 
bear viewing, and competition for permits is so intense that applicants 
have less than an 8 percent chance of obtaining a permit. Another 
popular bear viewing program is conducted at Brooks Camp in Katmai 
National Park. The number of visitors at Brooks Camp is not limited 
except by availability of lodge and campground facilities. Use of these 
facilities during peak visitation periods is presently at or beyond 
capacity and the National Park Service may limit the number of visitors 
in the future. A third bear viewing program is located at Pack Creek on 
Admiralty Island and is cooperatively managed by the U.S. Forest 
Service and Alaska Department of Fish and Game. Permits are required to 
visit Pack Creek; during 1993 the Forest Service announced that the 
number of visits to Pack Creek will be limited.
    Experience at McNeil River State Game Sanctuary has demonstrated 
that brown bears are least disturbed by human activity that is 
consistent and predictable. Studies at the Brooks Camp and Pack Creek 
bear viewing programs have confirmed that unpredictable human activity 
causes some bears to avoid important habitat. Inconsistent human 
activity has also been shown to cause conflicts between people and 
bears. At the McNeil River Sanctuary, implementation of a structured 
bear viewing program increased bear use and at the same time reduced 
the incidence of bear/human conflicts.
    Successful reduction of conflict, through implementation of a 
structured brown bear viewing program at O'Malley River, will require 
control of public use and access. Restriction of public use and access 
to anyone not participating in the viewing program will promote a 
quality wildlife experience for participants and reduce the potential 
for serious and incompatible conflicts between refuge visitors and 
bears. In this interim rule, public use and access would be restricted 
from June 25, 1994, to September 30, 1994. These dates were selected 
because it is the time period when the greatest number of bears are 
concentrated in the O'Malley River area to feed on the seasonal salmon 
runs that provide a critical component of their diet. Consequently, 
this is the period bears are most vulnerable to adverse impacts from 
excessive and unpredictable human use.
    The Service has issued a permit, under which a private operator 
will conduct the O'Malley Program, for the period 1994-1998. The 
program will be thoroughly evaluated during 1994 and, if successful, 
will be continued.
    This interim rule would remain in effect only through September 30, 
1994. A proposed rule is being submitted concurrently with this interim 
rule to permanently restrict public entry and use of the O'Malley area 
annually to bear viewing program participants during the June 25 
through September 30 period of heavy bear use.

Statutory Authority

    In accordance with the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd), the Secretary is 
authorized under such regulations as he may prescribe to permit the use 
of any area within the National Wildlife Refuge System for any purpose 
whenever he determines that such uses are compatible with the major 
purposes for which such areas were established.
    The Refuge Recreation Act of 1962 (16 U.S.C. 460k) authorizes the 
Secretary to administer such areas for public recreation as an 
appropriate incidental or secondary use only to the extent that it is 
practicable and not inconsistent with the primary purposes for which 
the area was established.
    Section 304 of ANILCA requires the Secretary to prescribe such 
regulations and impose such terms and conditions as may be necessary 
and appropriate to ensure that any activities carried out on a national 
wildlife refuge in Alaska under any permit or easement granted under 
any authority are compatible with the purposes of that refuge.
    Section 1306 of ANILCA permits the Service to provide visitor 
facilities in the refuge if compatible with the unit's purpose.
    This rule is being generated to help structure public use. 
Adequately regulated public use is consistent with and will not 
interfere with the refuge purposes delineated above, and is thus 
compatible with the purposes for which Kodiak National Wildlife Refuge 
was established according to 16 U.S.C. 668(dd).

Request for Comments

    Department of Interior policy is, whenever practicable, to afford 
the public a meaningful opportunity to participate in the rulemaking 
process. A 60 day comment period is specified in order to both 
facilitate public input and move forward to protect important refuge 
resources. Accordingly, interested persons may submit written comments 
concerning this interim rule to the persons listed above under the 
heading ADDRESSES. All substantive comments will be reviewed and 
considered.

Paperwork Reduction Act

    This rulemaking does not contain information collection 
requirements that require approval by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq.

Environmental Considerations

    This rulemaking is categorically excluded under 40 CFR 1508.4 from 
the requirements of the National Environmental Protection Act of 1969 
(42 U.S.C. 4321-4347) as an administrative action that will have no 
potential for causing substantial environmental impact.

Economic Effect

    Implementation of this interim rule will seasonally close two 
tenths of one percent (.02%) of Kodiak Refuge lands, to commercial 
operators and public use not connected with the organized bear viewing 
program. Observations by refuge personnel indicate that commercial use 
of the closure area has historically been steady. All use (commercial 
and non-commercial) was estimated to have averaged 266 user days during 
1989 and 1990, and 353 user days during 1991. These levels of use will 
clearly be exceeded by the amount of commercial use (minimum of 480 
user days) that will be allowed under terms of a permit authorizing the 
bear viewing program. Thus, a net gain of commercial use is expected to 
occur. Also, at least a portion of the commercial use previously 
occurring in the closure area will simply be displaced to another 
location and therefore not lost to the local economy.
    Changes in use of the resource will have no significant effect on 
national income. Private income will be enhanced, but dollar amounts 
will be small and have insignificant impact on the local economy. 
Agency costs for monitoring the closure and the bear viewing commercial 
operation will be approximately $40,000 less than that expended during 
fiscal year 1992 for program operation by the government.
    This rulemaking was not subject to Office of Management and Budget 
review under Executive Order 12866. In addition, a review under the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has been done 
to determine whether the rulemaking would have a significant effect on 
a substantial number of small entities, which include businesses, 
organizations or governmental jurisdictions. This interim rule would 
have minimal effect on such entities.

List of Subjects in 50 CFR Part 36

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

    Accordingly, part 36 of chapter I of title 50 of the Code of 
Federal Regulations is proposed to be amended as follows:

Part 36--[AMENDED]

    1. The authority citation for part 36 continues to read as follows:

    Authority: 16 U.S.C. 460(k) et seq., 668dd et seq., 742(a) et 
seq., 3101 et seq., and 44 U.S.C. 3501 et seq.

    2. Sec. 36.39 is amended by adding a new paragraph (j) effective 
from June 25, 1994, through September 30, 1994, to read as follows:


Sec. 36.39  Public use

* * * * *
    (j) Kodiak National Wildlife Refuge.--(1) Seasonal public use 
closure of the O'Malley River Area. Certain areas within the Kodiak 
National Wildlife Refuge are closed to all public access, occupancy and 
use from June 25, 1994, through September 30, 1994, except for 
individuals participating in the O'Malley Bear Viewing Program. These 
areas subject to seasonal closure consist of lands and waters located 
within Townships 33 and 34 South, Range 30 West, Seward Meridian, 
Alaska, consisting of approximately 3,955 acres, and more specifically 
described as follows: Township 33 South, Range 30 West, Seward 
Meridian, Alaska, all of section 25; all of section 26, excluding U.S. 
Survey 10875 and the adjacent riparian ownership (Koniag Inc.) fronting 
the survey and extending to the center of Karluk Lake; all of section 
27; the NE \1/4\ of section 34; and all of sections 35 and 36, 
excluding U.S. Survey 10876 and the adjacent riparian ownership (Koniag 
Inc.) fronting the survey and extending to the center of Karluk Lake; 
Township 34 South, Range 30 West, Seward Meridian, Alaska, the N \1/2\ 
of section 1 and the N \1/2\ of section 2. The refuge will provide a 
map of the closure area to all interested parties.
    (2) Access easement provision. Notwithstanding any other provision 
of this paragraph (j), there exists a twenty-five foot wide access 
easement on an existing trail within the Koniag Inc. Regional Native 
Corporation lands within the properties described in paragraph (j)(1) 
of this section in favor of the United States of America.

    Dated: April 13, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-11121 Filed 5-10-94; 8:45 am]
BILLING CODE 4310-55-P