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Home My WebLink AboutGLBA Commercial Fishing Reop 1999/ . ,. ·, · .. .. .. . .. ; I .. • ~ ,, I I' "" .... .. .J ; • .· .. , . .. Anchorage Daily News Wednesday, February 3, 1999 B-3 Knowles, GOP blast Glacier Bay fishing plan ~ The Associated Press JUNEAU-Gov. Tony Knowles and Republican leaders in the Leg- islature are attacking the National Park Service's proposal to phase o~t fishing in Glacier Bay National Park, calling the plan full of flaws. · In letters submitted to the agency by Monday's deadline for public comment, they called the 1997 plan full of poor research and unclear findings. Both sides want more lenient pro- visions of a 1998 congressional agreement used instead, with some modifications and other possible action later. Among the aspects of the congressional agree- ment being challenged is a provision allowing commercial fishing to continue by those who worked at least six of the past 10 years. Knowles and legislative leaders want any- one who fished previously to be al- lowed to continue. Some Republican legis- lators spent Monday ac- cusing Knowles, a Demo- crat, of not doing enough to block parts of the agreement. Knowles might have been able to influence the congressional deal, nego- tiated largely by U.S. Sen. Ted Stevens but didn't know about it until too late, said Rob Bosworth, deputy commissioner of the state Department of Fish and Game. "We had no idea the cleaver was falling," Bosworth said. Disputes about commercial fish- ing in the park have been going on for years, with the National Park Service arguing that Glacier Bay is federal water. The state maintains it owns the waters. The National Park Service plan "significantly downplays socioeco- nomic impacts and includes signifi- cant misrepresentations and errors of fact," a report by the Knowles ad. ministration to the federal agency states. The report lists more than 80' supposed flaws, ranging from in ... correct scientific information on wildlife to assuming displaced fish-. ermen can easily relocate to other areas with little effect on others in the fishery. Knowles and legislative leaders- want the current proposal with- drawn until further studies can be completed. MAR-12-99 13:25 FROM:NPS DIRECTORATE 10:9072572533 PAGE 1/1 NEWS RELEASE u.s. department ot the interior nutional pa1 ,k service FOR IMMEDIATE RELEASE March 12, 1999 Contact: Chief Ranger Randy King 907-.697-2230 Glacier Bay National Park Oarifies Interim Policy Regarding Implementation of Commerdal Fishing Law Established by Congrns Congress passed a law in October 1998 that closed or limited commercial fishing activities in certain areas of the marine waters of Glacier Bay National Park. The upcoming opening of the commercial halibut fishery in Southeast Alaska on March 1 5~ and questions from commercial fishennen, highlight the need to outline the National Park Service plan's for implementing these closures. The 1998law (Section 123 of Public Law 105-277) provides for continuation ofhistoric commercial fishing activities in areas of the park outside Glacier Bay proper. This is the area of the park where approximately 80% of the commercial harvest has historically occurred. Within most of Glacier Bay proper. the law provides halibut, salmon and Tanner crab fishermen with qualifYing histories an opportunity to continue fishing for their lifetimes. The law also describes several closures in wilderness and non-wilderness waters of the park; the wilderness closures are further directed by two previous court decisions. The law also provides financial compensation to Dungeness crab fishermen who worked in designated wilderness waters. Currently, about 490,000 acres of the park•s 601,000 acres of marine waters remain open to commercial fishing. Superintendent Tomie Lee said, "Because of quest ions that arose during the recent Tanner crab season, and calls from halibut fishennen who want to know where they can and cannot fish, we feel that it is important to clarifY that NPS does not intend to implement the closures or restrictions required by the law until adequate notice has been provided to fishermen. Our intent has been, and remains, to minimize disruption of commercial fisheries as the closures are implemented over the course of the coming summer, and as the lifetime access pennit provisions are implemented over the course of the next year.11 Park rangers will continue to contact fishermen and other boaters in the park in the course of routine patrol activities to check for compliance with applicable state and federal fishing requirements. "This has been our practice for many years in the park," Lee said. "In the past, we've seen a high level of compliance and very positive and professional contacts, and expect that will also continue." Further information is also available by calling the park at 697-2230. A copy of the 1998 law passed by Congress, a map of the open and closed areas, and additional background on commercial fishing issues at Glacier Bay National Park are available on the park's Web site at http://www.nps.gov/glbalissueslfish. Fishennen may also contact the park via marine VHF radio on channels 16 and 12, or are invited to stop by the park's administrative site at Bartlett Cove. -NPS- Alaska Region • Anchorage, Alaska ---·-.. -., : ·' \ ' : . ' ·--. C .. -.,.;_ ' .. ·I '· l . ' . ' \ ... ' \ \ -·• _.. .. OFFICE OF THE GOVERNOR OFFICE OF MANAGEMENT AND BUDGET DIVISION OF GOVERNMENTAL COORDINATION TONY KNOWLES, GOVERNOR ~ SOUTHCENTRAL REGIONAL OFFICE 3601 ·c· STREET. SUITE 370 ANCHORAGE, ALASKA 99503·5930 [J CENTRAL OFFICE P.O. BOX 110030 JUNEAU, ALASKA 99811·0030 [J PIPELINE COORDINATOR'S OFFICE 411 WEST 4TH AVENUE, SUITE2C ANCHORAGE, ALASKA 99501·2343 PH: (fl07) 271-4317/FAX: (907) 272·0690 PH: (907) 269·7470/FAX: (907) 581-6134 PH: (Q07} 465-3562/FAX: (907} ~-3075 01...us.JI February 1, 1999 Ms. Tomie Lee Superintendent Glacier Bay National Park and Preserve P.O. Box 140 Gustavus, Alaska 99826-0140 Dear Ms. Lee: The State of Alaska has reviewed the National Park Service's (NPS) proposed rule restricting commercial fishing within the boundaries of Glacier Bay National Park (62 Fed. Reg. 18547, published April 16, 1997). The attached comments address the rule as it was proposed in 1997, and as it has been modified by subsequent legislation enacted on October 21, 1998. These comments also address the Environmental Assessment (EA) published in the spring of 1998 to accompany the 1997 proposed rule. The views in this letter represent the consolidated response of the State's resource agencies. The length of our comments reflects the fact that NPS has provided little guidance as to precisely which of the proposed regulations may become final and which were made moot by the 1998 legislation. We have considered it prudent to comment on all aspects of the draft regulations that may impinge on commercial fisheries activity in the relevant waters. One reason for our having taken the time to comment on the EA is simply to set the record straight on key issues. Also, it is unclear which portions of the draft EA are pertinent, in view of the 1998 legislation. The following are our key conclusions and recommendations. Procedural Requirements • NPS should publish a new proposed rule that clarifies how the April 1997 rule is modified or superseded by the 1998 Act, and how NPS intends to proceed with implementation. .... /. : . . , .. "": :... :. • The NPS certification of no significant economic impact is unfounded. • A regulatory flexibility analysis pursuant to the Regulatory Flexibility Act is required. Underlying Disagreements • The State asserts ownership and management authority of marine waters with the boundaries of the Glacier Bay National Park. • The State disagrees with the NPS assertion that commercial fishing has been illegal in Glacier Bay National Park since 1966. Key Issues • The 1998 Act ends debate about additional closures and phase outs. Implementation of the 1998 Act should rely on existing state management authorities. • State management is compatible with and responsive to "Protection of Park Purposes and Values". • The State supports cooperative development of a fisheries management plan, assuming that future NPS rulemaking will provide flexibility to address issues as they may arise, in the context of existing management authorities. • NPS rulemaking should avoid defining key fishery management guidelines such as the prohibition on "new or expanded fisheries" prior to working with the State. • NPS rulemaking should not restrict the State's ability to manage personal use fisheries nor limit those qualified to participate. • The State supports implementation of a research program that provides for cooperation in the design of an overall study program that includes research goals and methodologies. • NPS should not require a federal permit for vessels fishing outside Glacier Bay proper. • Lifetime access permits should be provided to all those who have historically landed fish in Glacier Bay. • An affidavit of catch history should be considered sufficient documentation for the purpose of obtaining an access permit. April97 Rulemaking Proposals Superceded by the 1998 Act • 15-year review of fisheries in outer waters • Consideration of additional restrictions in Lituya and Dundas bays • Seasonal closures or harvest caps • Additional halibut closures • No-take marine reserves Each of these points is fully described in the accompanying document. We expect there will be continuing dialogue among the NPS, State agencies, and affected interests as implementation of the 1998 Act is further considered. The State looks forward to these discussions and hopes for timely resolution of remaining issues. 2 \ The State is committed to working with the NPS to implement applicable laws affecting fisheries in Glacier Bay, as Congress intended. We hope these comments are viewed by the NPS as a constructive step in that direction. Sally Gibe State CS Coordinator cc: Honorable Ted Stevens, U.S. Senate Honorable Frank Murkowski, U.S. Senate Honorable Don Young, U.S. House of Representatives Robert Stanton, Director, National Park Service Robert Barbee, Alaska Regional Director, National Park Service Frank Rue, Commissioner, Department ofFish and Game John Shively, Commissioner, Department of Natural Resources Bruce Botelho, State Attorney General John Katz, Governor's Washington D.C. Office 3 February 1, 1999 The State of Alaska's supplemental comments on the National Park Service (NPS) proposed rule at 62 Fed. Reg. 18 54 7, published April 16, 1997; and the accompanying April 1998 the Environmental Assessment (EA). Organization of Document Part One: Part Two: Part Three: Part Four: Part Five: Part Six: Part Seven: Part Eight: Part Nine: Part Ten: Background and Context Procedural Requirements Underlying Disagreements Issues Remaining --All Waters Bay Proper Issues Issues Superceded by the 1998 Act Regulatory Flexibility Act · Additional Economic Relief National Environmental Policy Act Compliance Attachments page 1 page2 page 3 page 5 page 11 page 16 page 18 page 23 page 24 page 44 PART ONE: BACKGROUND AND CONTEXT The most recent chapter in the long history of debate surrounding continued commercial fishing within the boundaries of Glacier Bay National Park began with a stakeholders' workgroup designed to seek common ground. As the workgroup established a functional dialogue and began exploring common understandings, the NPS felt compelled to broaden the public dialogue through a proposed rule (62 Fed. Reg. 18547) originally published on April 16, 1997. Just prior to publication of the proposed rule, the 91 h Circuit Court of Appeals issued its opinion in Alaska Wildlife v Jensen which affirmed that commercial fishing is not statutorily prohibited except in wilderness are~s of the Park. After the April 1997 rule was published, the workgroup continued to meet under State sponsorship, and the NPS provided informal input. In April 1998 the NPS published an Environmental Assessment (EA) to accompany the 1997 proposed rule. Then, on October 21, 1998, during the continued open comment period on the proposed rule and EA, Congress enacted legislation that addressed commercial fishing activities in Glacier Bay: Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999 ("the 1998 Act"), Pub. L. No. 105-277, § 123. This legislation supersedes some elements of the 1997 proposed rule but leaves other elements unresolved. As a result of the 1998 Act, a December 11, 1998 Federal Register notice extended the comment period on the original April 1997 proposed rule to February 1, 1999. On November 10, 1998, and again on December 16, 1998, the State formally requested a new proposed rule responding to the 1998 Act. PART TWO: PROCEDURAL REQUIREMENTS The State reiterates its request that NPS publish a new proposed rule to inform the public how NPS proposes to implement the 1998 legislation, thus clarifying what portions of the April 1997 proposed rule are modified or superseded by the 1998 Act. The December 1998 Federal Register notice recognized the need for broad comments: Section 123 [of the Act] determines by statute several aspects of the NPS's proposed rule, but leaves other aspects open for final rule making. . . All issues raised by the proposed rule not explicitly resolved by Section 123 of the Act are still open for comment .... NPS will review all comments received to date on the proposed rule and EA and encourages additional comments in light of the new legislation. Due to the lack of constructive guidance that a new rule would have provided, these comments address a wide range of issues raised in the preamble and proposed rule, the EA, and the 1998 Act. We find the EA inadequate for the purposes of analyzing issues and providing supporting information on impacts of management decisions. Our assessment finds the EA also significantly downplays socioeconomic impacts and includes significant misrepresentations and errors of fact. Had the proposed rule gone forward without modification by the 1998 Act, we believe a full EIS would have been required, and may still be required. To the extent the NPS may use or refer to any of the EA data or analysis in future decisions, it must be rewritten. The State disagrees with the NPS conclusion that the proposed rule does not have a significant economic impact on a substantial number of small businesses, organizations and communities in the Glacier Bay area. We believe an initial regulatory flexibility analysis pursuant to the Regulatory Flexibility Act --including opportunities for public review and comment--is required. 2 : PART THREE: UNDERLYING DISAGREEMENTS Management Authority of Marine Waters As a preliminary matter, the proposed rule contains several statements with which the State disagrees. Among the most significant of these is NPS' characterization of the marine waters within Glacier Bay National Park as federally owned and regulated. Alaska previously has asserted its claims to ownership and management of submerged lands and marine waters within the boundaries of the park. See these State comments: • November 1, 1991, regarding proposed rule published August 5, 1991 • September 8, 1995, regarding draft Vessel Management Plan, EA and proposed rule .. ,.. • February 2, 1996, regarding proposed navigable waters rule at 60 Fed. Reg. 62233 • April16, 1996, regarding Vessel Management Plan, Finding ofNo Significant Impact Under the constitutional doctrine of equal footing, confirmed by the Submerged Lands Act, the Alaska Statehood Act, and the Alaska Constitution, the State owns and therefore manages all water columns, shorelands, tidelands, and submerged lands, including the resources located within or on such lands and waters. Pursuant to this responsibility, the State presently manages water uses, access, and activities in marine waters in and adjacent to Glacier Bay, including commercial fishing. The State also works closely with the International Pacific Halibut Commission on halibut management issues.1 The State's fisheries management process is open to the public, and all interested persons or entities are encouraged to participate before the advisory committees and the Board of Fisheries. The 1998 Act overcomes some of our jurisdictional concern. NPS may act as provided in the legislation, however it is clear that Congress intended the federal government work directly with the State to successfully address and resolve issues of particular concern through ongoing dialogue and cooperation. Statutory Prohibition of Commercial Fishing in Glacier Bay The State disagrees with NPS representations in the proposed rule that commercial fishing has been illegal in Glacier Bay since 1966 and that existing commercial fishing threatens park purposes and values. The 1998 Act appears to set aside these questions by specifically authorizing ongoing fisheries within park boundaries and providing for continuation of fisheries in the outer waters. These issues have ongoing significance, however, and are therefore addressed in these comments. The State also manages many territorial fisheries under an agreement with the National Marine Fishery Service. The Alaska Department of Fish and Game has a seat on the North Pacific Management Council and the Pacific Salmon Commission, and the State holds a seat on the North Pacific fishery Anadromous Fishery Commission. 3 As shown in Attachment A in Part Ten, NPS' history of authorizing and acknowledging commercial fishing in Glacier Bay is well-documented. Furthermore, the Alaska National Interest Lands Conservation Act of 1980 (ANILCA), which expanded andre designated the park, recognized State management offisheries (Section 1314), the continuation of fisheries activities (Section 1316), and specifically provided for shore based facilities in the preserve (Section 205). In March 1997, just prior to publication of the proposed rule, the United States Court of Appeals for the Ninth Circuit clarified that commercial fishing in non-wilderness areas of Glacier Bay is not statutorily prohibited (Alaska Wildlife Alliance v. Jensen, 108 FJd 1065 (9th Cir. 1997)). The proposed rule, therefore, improperly suggests that fisheries in and adjacent to Glacier Bay should be closed because ANILCA specifically protected commercial fishing activities in the Dry Bay area of Glacier Bay National Preserve but did not reference such activities in other areas (See ANILCA § 205, 16 U.S.C. § 410hh- 4t ANILCA § 205 indeed could not support NPS' assertion. Congress enacted§ 205 at the time it created Glacier Bay National Preserve in order to assure continuation of shore-based commercial fishing activities occurring in the preserve. Congress therefore specifically referenced continued use of public lands for "campsites, cabins, motorized vehicles, and aircraft landings on existing airstrips, directly incident to the exercise of [valid commercial fishing] rights or privileges." 16 U.S.C. § 410hh-4. Congress did not address preservation of actual fishing operations in this area, nor did it need to, since commercial fisheries in Dry Bay generally occur outside the preserve boundaries and are not subject to any NPS authority. Significant shore-based activities in support of commercial fishing historically did not exist in Glacier Bay National Park. Therefore ,Congress had no reason in ANILCA to specifically reference or protect these activities in the park. 4 •, PART FOUR: ISSUES REMAINING --ALL WATERS Fisheries Closures and Phase Outs Under the 1998 Act Future rulemaking should clearly recognize the results of the 1998 Act. The definitive closures included in the 1998 Act are clear evidence that additional closures or restrictions on commercial fishing are not envisioned by Congress as either appropriate or necessary, except as implemented through the State's normal regulatory processes. To summarize, the 1998 Act restricted fisheries in the Bay proper, eliminating some fisheries immediately and phasing out others over the lifetimes of individuals. Fisheries in the Bay to be closed immediately include all fisheries except those for halibut, salmon, ·and Tanner crab. Closed fisheries therefore include those for Dungeness crab, king crab, groundfish, shrimp, and miscellaneous other sporadic or small-scale fisheries. Areas to be immediately closed to all fisheries include the East Arm of Glacier Bay (except winter chinook troll fishing), the West Arm of Glacier Bay north of 58 degrees 50 minutes north latitude (except winter chinook troll fishing), John Hopkins Inlet, Tarr Inlet, Reid Inlet, and Geikie Inlet. Fishing is also closed in the wilderness areas of the Beardslee Islands and the Hugh Miller Complex. The remaining halibut, salmon, and Tanner crab fisheries in the Bay proper are additionally limited by lifetime access eligibility requirements. This information is also shown in Table 1 in Attachment C. Continued State Management The 1998 Act recognized that fisheries in the outer waters and the remaining fisheries in the Bay proper shall continue under the State's management; however NPS has the authority to determine eligibility for commercial fishing in the Bay proper during a lifetime phase-out. We appreciate NPS' confirmation of state management authorities in the December 11, 1998, Federal Register notice, as follows: "The law provides for the continuation of commercial fishing in the marine waters of Glacier Bay National Park outside of Glacier Bay proper . .. . the state would continue its role in management of commercial fisheries and NPS would contribute expertise in protection of park purposes and values; .... " We request this confirmation be included in subsequent rulemaking. We request that future NPS rulemaking clearly define "protection of park values and purposes" if any different than already codified as closure authorities and processes in 36 CFR Parts 1-7, as superseded by 36 CFR Part 13 and 43 CFR Part 36 for Alaska parks. We also suggest subsequent rulemaking recognize the full range of authorities over fisheries in the vicinity of Glacier Bay including International Pacific Halibut Commission, National Marine Fisheries Service, North Pacific Fisheries Management Council, and the Salmon Treaty with Canada. 5 -. II __ _ State Fisheries Management is Compatible with and Responsive to "Protection of Park Purposes and Values" Contrary to implications throughout the proposed rule and EA, the State's process for managing commercial fisheries is science-based, rigorous, and is widely regarded as among the best in the world. There is no evidence of over fishing in Glacier Bay. The Alaska Board of Fisheries utilizes extensive agency and public input in developing conservative management plans for each of the fisheries that emphasize long-term sustainability and conservation. By specifically defining areas open and closed to commercial fishing in the 1998 Act, Congress has addressed consistency of these fisheries with park purposes and values. In addition, state agencies, including the Alaska Department ofFish and Game (ADF&G), recognize the special intrinsic values of Glacier Bay and believe that ''protection of park values and purposes" as used in the 1998 Act can be fully accomplished under existing commercial fishing management mechanisms. Attachment B documents the multifaceted conservation strategies currently employed by the State and clarifies apparent misconceptions contained in the EA about the State's management system. State biologists also presented substantial information about management of fisheries in and around Glacier Bay at the NPS sponsored public hearings and the ADF&G-sponsored workgroup sessions in 1997 and 1998. This information is incorporated herein by reference and provides important additional background on Alaska's management program that is not represented in the EA. The State disagrees with proposed rule and EA assertions and implications that ongoing commercial fishing inherently detracts from Glacier Bay's outstanding recreational and scenic viewing opportunities. Most visitors to the park find that the small scale, family fishing operations, which is exclusively what summer visitors see, adds local personality to their visits. They learn about and enjoy the fishing boats plying the waters. Cooperative Development of a Management Plan Section 123(a)(1) of the 1998 Act addressed management of the ongoing fisheries to occur inside the boundaries of Glacier Bay National Park in the following manner: The Secretary of the Interior and the State of Alaska shall cooperate in the development of a management plan for the regulation of commercial fisheries in Glacier Bay National Park pursuant to existing State and Federal statutes and any applicable international conservation and management treaties. The State is willing and able to cooperate with NPS pursuant to this Act. The limits and closures established by the 1998 Act appear to satisfy most if not all issues of special concern to the NPS. We are confident there will be few additional issues to address in a management plan. 6 In the cooperative process, however, the State is not willing or able to concede its fisheries management authority to NPS or other entities, nor did Congress envision such concessions. The Board of Fisheries will continue to adopt management plans for Glacier Bay area fisheries, consistent with other state obligations and agreements. State implementation and enforcement of regulations will continue. Successful implementation of the 1998 Act is therefore dependent upon further improvements in state-federal communication, increased input from NPS to clarify protection of park purposes and values, and increased coordination of research. "Cooperative management". Congress specifically used the phrase "cooperate in the development of a management plan", rather than "cooperative management." The latter term is used in the NPS proposed rule and has remained in subsequent use by the NPS (e.g. Federal Register notice, dated December 11, 1998; letter from Tomie Lee, dated December 17, 1998.) We see an important distinction. In our view, "cooperative management" incorrectly implies a dual management system that would be unwieldy, at best. Cooperative development of a management plan more accurately describes our view of the working relationship between the NPS and the State, utilizing existing State management of commercial fisheries. In comments on the Senate floor reporting the bill, Alaska's Senator Ted Stevens clearly emphasized that the existing management regimes will still manage the fisheries. NPS role. The proposed rule states that the Secretary would "cooperatively ensure adherence to the plan under the provisions of 36 CFR 2.3(a) and 13.21 (b)."3 The 1998 Act is not limited to the proposed rule's terms and allows other means of state-federal cooperation. In light of the Act's flexibility on this issue, it would be premature for NPS to promulgate regulations binding it to any particular action without further state-federal dialogue. We also request that rulemaking clarify that the Alaska-specific provisions under 36 CFR Part 13 and 43 CFR Part 36 supercede the closure provisions in 36 CFR Part 2. Master Memorandum of Understanding. We note that the NPS and ADF&G have a signed Master Memorandum of Understanding (MMOU) (Attachment D) which supports the intent of the 1998 Act. In the MMOU, the NPS specifically commits "to utilize the State's regulatory process to the maximum extent allowed by Federal law in developing new or modifying existing Federal regulations or proposing changes in existing State regulations governing or affecting the taking of fish and wildlife on Service lands in Alaska." We request that future rulemaking adopt and reference this and other applicable provisions of the MMOU. If a state regulation appears to conflict with federal law, we also request a written finding to assist state consideration and dialogue. The EA further elaborates that the cooperative fisheries management plan would be "consistent with federal and non-conflicting state regulations." EA at 2-4 (emphasis added). This concept of cooperation is not acceptable, and indeed is not "cooperative" at all. 7 --"i I · "No New or Expanded Fisheries" The 1998 Act provides that the management plan for Glacier Bay commercial fisheries is to prohibit "new or expanded fisheries." Given the uncertainty as to how NPS interprets these terms, the State requests NPS refrain from adopting regulations that define these terms, or otherwise preclude NPS from exploring this further with the State. We believe, for example, that Congress did not intend to preclude improvement of gear types nor that sporadic fisheries would be considered new or expanding. Future rulemaking should not include a limitation to only "well-established fisheries and gear types" as used in the proposed rule Overview section of the Preamble. Limits on "the significant expansion of ongoing fisheries" as used in the Overview also should not be implemented by NPS. We similarly request that future rulemaking omit reference to continuation of "commercially viable" fisheries (from Overview). Fisheries are subject to many variables such as abundance, location, weather, market, buyers, and other fisheries. If a fishery is not commercially viable, no one will continue to participate. Existing state and federal regulatory regimes have adopted management regulations and policies which address expansion of fisheries. For example, we request the Service recognize and defer to the Alaska Board of Fisheries' "Management Plan for High Impact Expanding Fisheries" (5 AAC 39.210). This plan establishes procedures to evaluate changes in harvesting effort, insure resource conservation, minimize impacts on existing uses, and close expanding fisheries. We also request that NPS recognize 5 AAC 39.220, "Policy for the Management of Mixed Stock Salmon Fisheries", that clearly states: " ... conservation of wild salmon stocks consistent with sustained yield shall be accorded the highest priority." It goes on to state: "Most wild Alaska salmon stocks are fully allocated to fisheries capable of harvesting available surpluses. Consequently, the board will restrict new or expanding mixed stockfisheries unless otherwise provided for by management plans or by application of the board's allocation criteria. Natural fluctuations in the abundance of stocks harvested in a fishery will not be the single factor· that identifies a fishery as expanding or new." The preamble to the April 1997 rulemaking and the EA. reflect a poor understanding of fishery management plans already adopted by the Board of Fisheries for the Glacier Bay area and reports provided by ADF&G which document management actions and evaluations for existing fisheries. New and expanded fisheries are already limited under existing mechanisms. In addition to state plans and limitations on fisheries, the State's limited entry program limits the number of participants in most fisheries. Attachment E contains a partial list of State management plans, policies, and reports which document, direct, and limiffisheries in the vicinity of Glacier Bay National Park, in addition to restrictions on fishermen's participation under the Limited Entry provisions, moratoriums, or permits. See also Part Nine for additional comments regarding "no new and expanded fisheries". 8 Subsistence, Cultural and Personal Use Fisheries The 1998 Act itself does not address cultural or personal use fisheries in the Glacier Bay area. However, the Manager's Statement attached to the Act indicates that state- authorized and managed personal use fisheries in Glacier Bay are expected to continue. The statement specifically notes that "local residents in close proximity to the park (e.g. Hoonah) will continue to be allowed to fish for personal use (not barter or sale)." (Cong. Reg. 10/19/98 Hll376). The State of Alaska manages subsistence and personal use fisheries throughout Southeast Alaska and the state. The State authorizes these fisheries in the waters adjacent to and within Glacier Bay National Park. Subsistence and personal use fisheries have occurred within park boundaries for many years and are not limited to residents of particular communities or areas. Residents of Hoonah are authorized to participate in these fisheries in Glacier Bay, as are residents of other communities. The State supports recognition ofHoonah's special history and uses of Glacier Bay and intends to retain subsistence and personal use fisheries in Glacier Bay for these individuals as well as other local residents who rely on those fisheries to satisfy personal and family needs. Although we commend NPS intent stated in the proposed rule regarding pursuit of cooperative efforts "to protect the cultural heritage of the Hoonah Tlingit" (Overview), we have two concerns with the stated direction of this section. First, the Hoonah Indian Association has very strong historical uses of the Glacier Bay area which appear to be addressed very narrowly compared to what the referenced Government-to-Government agreement would allow. It is not clear what is proposed here to "allow for -and preserve -cultural activities compatible with park objectives. " What are the park objectives? Those published in the EA are inconsistent with ANILCA intent that recognizes the continuance of existing human uses of resources as a natural part of the system. We are concerned that needs and desires for historical activities such as harvests in the marine area besides "a cultural fishery program" are being ignored. The NPS intent with respect to "a cultural fishery program" is also unclear. Secondly, other local residents such as those in Elfin Cove, Gustavus, Pelican, and Yakutat also have cultural and historical dependence upon the Glacier Bay area, but their interests have not been addressed in the proposed rule or EA. What are the cultural activities the NPS proposes to allow?" Research The 1998 Act specifically states that the cooperatively developed management plan "shall provide for ... the opportunity for the study of marine resources. " The State is committed to fully participating in implementation of this particular clause of the legislation. We 9 Ill' II'·- interpret this provision to include the cooperative design of the overall study program, including identification of research goals and methodologies. We further request that implementing regulations provide direction to cooperatively develop a research program that may fulfill either or both state and federal research objectives. Such cooperation is already recognized by the MMOU between the NPS and ADF&G but has been inconsistently applied when respective needs for priority data conflict. Permits or Other NPS Authorizations Commercial fisheries occurring outside the Bay proper but within State territorial waters are largely managed pursuant to the State's limited entry program. All vessels must obtain appropriate State permits to engage in this activity. We oppose imposition of additional federal perinit requirements for vessels fishing outside the Bay proper, as suggested in the EA. Such requirements would interfere with the State's fisheries management authority and .are unnecessary. We request that future rulemaking clearly confirm that the only restrictions on the fisheries (now pro~ected by the 1998 Act) be through the respective fisheries regulatory agencies' process and not through NPS access permits, other rulemaking such as those which implement the Vessel Management Plan, and/or compendium. 10 PART FIVE: ISSUES AFFECTING GLACIER BAY PROPER Lifetime access permit eligibility The 1998 Act provides that certain commercial fisheries shall be permitted to continue in the nonwildemess waters of Glacier Bay proper for the lifetimes of qualifying individuals. These fisheries include longlining for halibut, trolling for salmon, and pot or ring net fishing for Tanner crab. We urge use of an efficient and simple approach to establishing access criteria for remaining fisheries in Glacier Bay proper. Specifically, • all holders of Commercial Entry Permits with a history of fishing the waters of Glacier Bay proper should receive access permits; and • an affidavit of catch history should be considered sufficient documentation of previous participation, interest in and dependence on the commercial fishery. We oppose options in the proposed rule such as limiting eligibility to those who have fished 6 out of 10 years, 3 out of 10, and 1 out of the last 10. The State's proposal would (1) recognize the mutua,l commitment of state and federal agencies to continued fisheries conservation in Glacier Bay; (2) minimize the economic harm to persons who for various reasons may not have established a regular use pattern in Glacier Bay; (3) minimize the burden to fishermen of documenting many years of fishing activity in Glacier Bay; ( 4) minimize potential unwanted or unanticipated impacts on Glacier Bay fishery resources; and (5) minimize administrative and legal costs to the State of Alaska and Department of the Interior. We recommend the NPS request holders of Commercial Fishery Entry permits (including T series, B series, S05, S15 and K series permits) with a history of Tanner crab, salmon, and halibut harvest in Glacier Bay proper, to provide an affidavit stating their history of landings in Glacier Bay proper. Limiting documentation to an affidavit would reduce potential for substantial fiscal burden resulting from fish ticket search requests. Under this scenario, we would expect NPS to design a validity review and appeals program consistent with due process. These recommendations are based on the following considerations: Conservation. Conservation of fish resources in Glacier Bay is the common goal of the Department of the Interior and the State of Alaska. This goal is also implicit in the 1998 Act. Any further limits by the NPS on the number of fishermen eligible to participate in the remaining fisheries is unnecessary to assure conservation management and sustained ll yield. As contemplated by Congress, continued state management of fisheries and cooperatively developed research programs can assist achievement of the State's high standards of fisheries conservation. The greatest number of permit holders participate in the salmon troll fisheries, taking small numbers offish, predominantly in winter, from migrating stocks, none of which spawn in the Park. All commercial fisheries involved in the phase-out exhibit extensive histories of successful resource management. A voids burdensome and costly adjudications. Preliminary assessment of fish tickets for Glacier Bay suggest that salmon troll landings are not coded to Glacier Bay proper, but coded to the larger District 114. Depending on eligibility criteria implemented, there could be hundreds of requests for obtaining fish ticket data as well as for correcting fish ticket information, if that source is determined to be a primary auditing tool. This lengthy adjudication process is unnecessarily complicated and disruptive. Such a flood of requests occurred following the Exxon Valdez Oil spill and was extremely costly for the State to administer. ADF&G could easily face additional unbudgeted processing costs of approximately $50,000 a year for which compensation would be necessary. A similar situation applies to halibut. Halibut fish tickets are collected by ADF&G and forwarded to the International Pacific Halibut Commission for coding and analysis. Before 1994 no coding existed for the newly created IPHC statistical area 184 (which corresponds to Glacier Bay proper). Thus the NPS would have to rely on hundreds of affidavits to verify participation. Substantially increased fishing effort unlikely. Current fish ticket data do not tell us which fishermen out of a group of qualifying permittees will actually choose to continue to fish in Glacier Bay proper. Based on the State's experience in other fisheries, it is reasonable to assume that any increase in participation in Glacier Bay fisheries would be minor and transitory, and that a progressive decrease in the number of participants would result from retirements or other attrition. The State's permit eligibility proposal would grandfather fishermen who utilize the Glacier Bay area in the normal conduct of their businesses. A normal pattern of usage should be anticipated, diminishing over time, due to the practical aspects of boat size, timing, markets, travel distances, and participation in more than one fishery. More stringent restrictions on eligibility are unnecessary. Displacement effects. Various projections have been made in the EA about the effects of a reduced number of eligible permittees on the resources and the state's management thereof. These projections appear to be speculative and received no analysis in the EA. It is conceivable that reduced eligibility during the phase out may actually increase the number of eligible fishermen desiring to move from more traditional grounds to the Bay with a net effect of increasing the numbers fishing in the Bay. However, staff with management experience in closing and opening areas and establishing moratoria on permitted fishermen believe that there will not be any major shifts by fishermen because of limitations of vessels themselves, markets, availability of processors, timing of participation in other fisheries, travel distances, and similar considerations. Regardless of the dynamics of fisheries participation, fisheries management throughout Alaska is designed to identify th~se changes and respond appropriately to assure sustained yield 12 '6 and meet conservation goals. Better information about resident and transient fish stocks in Glacier Bay, gained through cooperative research relationships with the NPS, may augment the state's efforts in this area. Minimize impacts on affected individuals. The Dungeness crab closure in Glacier Bay will adversely affect many individuals and small businesses. Participation in the remaining in-bay fisheries can potentially be a significant part of a family's economic recovery strategy. Additional restrictions on eligibility could further disadvantage fishermen already impacted by the legislation. Conclusions based on continued State management and commitment to cooperative research. If the NPS adopts the State's liberal approach to eligibility, we would anticipate no impacts to the resources themselves, and the least impacts on fishermen, communities, .-. and State management. •Based on the State's successful management record, we believe resources will be protected. State management can be further enhanced by additional data when research desired by either agency is designed and conducted cooperatively by NPS and ADF&G. The State welcomes opportunities to conduct such research and particularly welcomes funding and expertise to improve our knowledge of fish populations spending part of their life cycle in the Glacier Bay area. With such a commitment to cooperative research, any concerns managers may have of possible shifting harvest patterns by fishermen during the phase-out period can be detected and assessed to determine if the State needs to change regulations in response to study results. The State welcomes opportunities to cooperatively conduct research studies with the NPS to address their concerns for the resources. The State presently understands that NPS will issue these permits only to eligible permit holders for harvests of halibut, salmon, and Tanner crab. The State assumes that lifetime eligible fishermen may continue his or her traditional uses of Glacier Bay, including use of the vessel and crew of the permittee's choice. Dungeness Crab Compensation Issues The 1998 Act provides for compensation to qualifying individuals engaged in commercial fishing for Dungeness crab in wilderness waters of the Beardslee Islands or Dundas Bay in at least six of the years during the period 1987-1996. Questions remain as to how NPS will implement this provision. The NPS December 11, 1998 Federal Register notice should have been followed by a rulemaking that clarifies the process and standards for eligibility and compensation and minimizes the burden on fishermen. We recognize, however, that rulemaking would be difficult at this late date, and urge NPS to publish a formal rulemaking which clarifies all aspects of its buyout program. Eligibility. The 1998 Act provides for compensation for those Dungeness crabbers who, before February 1, 1999, submit a sworn and notarized affidavit and other available corroborating documentation to establish participation in commercial fishing for 13 Ill 1111 Ill 1'1 Dungeness crab in designated wilderness waters of the Beardslee Islands or Dundas Bay in qualifying years. For the reasons stated previously concerning lifetime eligibility in the Bay proper, we urge an affidavit be sufficient to establish qualifications. To require extensive corroborating evidence would impose a significant problem for fishermen and an uncompensated reporting burden on ADF&G. Inherent data reporting limitations will complicate qualification issues due to limitations of data originally collected only for fishery management purposes. Permit relinquishment. The 1998 Act requires that compensated fishermen relinquish to the State for purposes of retirement any commercial fishing permit for Dungeness crab in Glacier Bay proper. The State understands, however, that the permit relinquishment process is to be achieved contractually between the United States and individual fishermen. The State does not intend to participate actively in this process. Fishermen may contractually agree to relinquish their rights to fish under their permit and may agree to waive rights to renew or seek reinstatement of their permits. This has the effect of a relinquishment. Compensation calculation. We have little information how NPS intends to proceed with compensation calculation. We note that the 1998 Act provides that eligible fishermen may receive the greater of $400,000 or the fair market value of the commercial fishing permit, crab pots or gear, a fishing vessel, and the present value of foregone net income from fishing for the six years 1999 -2004. The present value of foregone income is to be based on the individual's net earnings from the Dungeness crab fishery during the period January 1, 1991 through December 31, 1996. Senator Stevens has indicated that lost income is "net after expenses which should be calculated by taking gross receipts and subtracting the cost of insurance, crew, fuel, and bait. Paper losses such as depreciation used for Internal Revenue purposes only, should not be subtracted in calculating net income." (144 Cong. Rec. S12741, 12792-93, October 21, 1998). It is not clear how "fair market value" will be determined "as of the date of relinquishment". Obviously the fair market value of vessels and gear prior to the 1997 rulemaking is going to be different than the value the day before the 1998 Act passed, and different again from the day in the next six months upon which the owner relinquishes the vessel. In light of the uncertainties concerning NPS' intent, we urge the NPS to be as lenient as possible in implementating this portion of the 1998 Act. The short time period provided for Dungeness crab fishermen to acquire records and present them to NPS, and then for NPS to calculate compensation will create additional burdens for fishermen, the State, and NPS. It is often difficult to separate one fishing permit operation from another by those who participate in more than one fishery. We also note that individuals may not have retained records from before 1995, which would be the last year required for tax purposes. The 1998 Act requires calculation of projected lost income compared to the 14 1991-1996 base period. Pre-1995 income records will thus be needed but not necessarily available. In their absence, methods to adjust for missing data must be established. We are also concerned that capital items such as vessels and gear are handled fairly They are normally treated as capital assets held for investment purposes rather than as accounted expenses for "net income." Safe Harbor The Overview of the 1997 rulemaking states: (b) Sate Harborage. Nothing in this proposed rulemaking, or existing NPS regulations, would affect the ability of fishermen or other vessel operators to seek safe harbor within Glacier Bay under hazardous weather or sea conditions, when experiencing mechanical problems, or in other exigent circumstances. Although this is in the preamble, it is not reflected in the existing 36 CFR ::· Part 13 regulations; we therefore request its inclusion in future rulemaking. 15 ., ~ ·1 or··· 1 ,------~-·r·r··--· PART SIX: ISSUES SUPERCEDED BY THE 1998 ACT 15-Year Review in Outer Waters The 1998 Act provides that commercial fishing shall continue outside of Glacier Bay proper. For this reason, we assume NPS will withdraw the proposed 15-year review provision set forth in the proposed rule. Ongoing review of these fisheries will continue through the state management system with NPS involvement for the protection of park values and purposes. We appreciate that Congress has removed the onerous economic uncertainty for fishermen, processors and communities that accompanied the 15-year review in the proposed rule. Lituya and Dundas Bays The 1997 proposed rule requested comments regarding Lituya and Dundas Bays. The State opposes any additional restrictions on fisheries or other activities in these areas and does not believe the 1998 Act allows such restrictions. Seasonal Closures The 1997 proposed rule included provisions for identifying a "visitor use season" and adopting seasonal closures on commercial fishing during this period. While the 1998 Act establishes closed areas, it does not provide for seasonal closures or other vessel limitations; nor do we believe such closures or limitations are contemplated or permissible, nor are they needed to protect park values and purposes. The State understands that NPS does not intend to pursue regulatory action concerning seasonal closures. We support this determination and request this be reflected in subsequent rulemaking. The proposed rule Overview discussion states that seasonal closures 11 ••• would also reduce the effect of unlimited numbers of commercial fishing vessels on sensitive park resources. 11 In the context of whales, National Marine Fisheries Service studies conclude that there are no sensitive whale resources affected by commercial fishing boats. Harvest Caps The State's management regime is flexible and abundance-based. Annual harvest levels of particular stocks may therefore rise or fall depending on that year's abundance. Commercial fishing effort varies greatly by species and gear type, and is dependent upon population cycles, timing, weather, water currents, availability and distance of processors and markets, and other conditions. These are all monitored in-season by ADF&G with closures and openings occurring on an hourly, daily, or weekly basis depending upon the 16 resources and guidelines within adopted management plans. The State anticipates continuing this management style under the 1998 Act. Imposition of arbitrary harvest caps as suggested by the proposed rule that are based on any given year(s) harvest level is therefore not appropriate or permitted by the 1998 Act. NPS regulations should provide for cooperative dialogue and follow up with the State using the State's regulatory processes in the event that NPS may have future concerns about harvest levels. Halibut Study The 1997 proposed rule seeks input on a proposed halibut study to occur in the Bay proper. This study is not well explained in the proposed rule but, as described, suggests that additional closures would be necessary. Halibut studies initiated in past years by NPS and National Biological Survey were not designed cooperatively by halibut managers and knowledgeable scientists. The claimed results were seriously limited, the interpretations appeared biased, and were applied beyond the scope of the data. The State opposes any additional closures in Glacier Bay proper and believes that additional closures are unnecessary pursuant to the 1998 Act. Regarding the research aspect of this proposal, the State encourages joint planning and implementation of any studies occurring in the Bay pursuant to the more progressive research-related language in the 1998 Act. Such cooperative effort is beneficial to NPS, the State, and the public. Cooperative research will improve the quality and credibility of resulting scientific information. Multi-Agency Dungeness Studies The 1997 rulemaking includes reference to the ongoing Multi-Agency Dungeness Studies (MADS) project initiated in 1992. We presume this study program will be terminated under the provisions of the 1998 Act. We request, however, that NPS remain flexible in the cooperative design and conduct of future studies as we have noted in our discussion on Research. Marine Reserves With the commercial fishery closures established in the 1998 Act, and the ongoing assurance of protection of park purposes and values for remaining fisheries, we assume that there is no further expectations for creation of no-take marine reserves. 17 • "iiilii"i"-1"1" ···--------------. PART SEVEN: REGULATORY FLEXIBILITY ACT The 1997 Federal Register publication concludes that the proposed rule does not have a significant economic impact on a substantial number of small businesses, organizations and communities in the Glacier Bay area. Therefore, NPS did not prepare or publish for comment an initial regulatory flexibility analysis pursuant to the Regulatory Flexibility Act (RFA). The State disagrees with this conclusion, as applied both to the proposed rule and to the proposed rule modified by the 1998 Act. The closures and restrictions at issue are likely to substantially impact small businesses and other entities in the Glacier Bay area and Southeast Alaska. NPS must assess these impacts --and make its findings available for public review and comment --before proceeding with a fmal rule. An Initial Regulatory Flexibility Analysis is required The RF A requires agencies to publish an initial regulatory flexibility analysis whenever the Administrative Procedures Act mandates publication of a notice of proposed rulemaking (5 U.S.C.A. § 603(a)). The regulatory flexibility analysis must describe the impact of the proposed rule on small entities, including small businesses, small organizations, and small government jurisdictions. !d. It must also describe alternatives to the proposed action which accomplish statutory objectives and minimize significant economic impacts on small entities. This analysis is to be published for public review and comment. NPS' failure to undertake this analysis may be seen as a presumptive failure to comply with the RFA. See Southern Offshore Fishing Association v. Daley, 995 F. Supp. 1411 (M.D. Fla. 1998); North Carolina Fisheries Association, Inc. v. Daley, 1997 WL 916347 (E.D.Va.1997). The Small Business Administration (SBA), which is charged with special authority and oversight of federal agencies' compliance with the RF A, advocates for publication of regulatory flexibility analyses whenever a rule's impact on small business cannot be described as de minimis. It is our understanding that the SBA has reviewed the Glacier Bay rulemaking and concluded that a regulatory flexibility analysis is necessary before NPS may proceed with its rule. NPS certification of no significant impact is unfounded NPS' rulemaking certified that the proposed rule will not have a significant economic impact on a substantial number of small entities. It justified this conclusion by stating that the proposed rule "mainly clarifies previously existing statutory and regulatory prohibitions. The expected redistribution of commercial fishing efforts to areas outside 18 of the park is not expected to significantly affect a substantial number of small businessmen." 62 Fed.Reg. 18547, 18555 (April16, 1997). NPS' certification of no significant impact is deficient in several ways. First, the conclusory certification does not include an adequate factual basis. Second, NPS fails to provide any analysis to support its conclusion. Lastly, NPS failed to receive public input on its assumptions and conclusions. Federal courts have ruled that such failures are unacceptable under the RF A. See Southern Offshore Fishing Association, 995 F. Supp. 1411 (M;D. Fla. 1998); North Carolina Fisheries Association, Inc., 1997 WL 916347 (E.D.Va. 1997). As noted elsewhere in these comments, the State disputes the conclusion that the proposed rule "merely clarifies" existing fishing prohibitions. Rather than "clarifying," the proposed rule announced a dramatic change to the status quo that would significantly impact many fishing families, organizations and communities. As the 1998 Act confirms, commercial fishing is not prohibited throughout the Glacier Bay area. Even prior to the Act, commercial fisheries were not prohibited in nonwildemess areas inside park boundaries. As discussed in Attachment A, NPS' history of accommodating ongoing commercial fisheries is well documented. Indeed, the proposed rule was designed to finally resolve inconsistencies in NPS' statements on commercial fishing. The State additionally disagrees with NPS' assumption that displaced fishermen can be redistributed to other areas without significant impact to their economic well being. It does not appear that NPS has undertaken an effort to determine whether this assumption is, in fact, true. NPS similarly failed to assess the impact of its proposed action on small businesses such as fish processors and local communities. We understand that NPS contracted with Dr. Steve Langdon to study the impacts of the proposed action. In a February 1998 oral presentation, Dr. Langdon reported that his research showed potentially very significant adverse impacts to local fishermen, businesses and communities as a result of the proposed rule. He further reported that many of these entities significantly rely on Glacier Bay area fisheries for their economic and cultural well being. See Attachment F: draft Tables III-2, III-3 and III-4, and draft Tables 5 and 6 for illustrations. Other than the brief 1998 oral presentation, NPS has not made Dr. Langdon's research and findings available to the public, nor has it referenced Dr. Langdon's conclusions. It is therefore unclear whether and how NPS has incorporated this research in its rulemaking process, particularly in its assessment of economic impacts on small entities. Proposed rule impacts a substantial number of small entities. To properly assess the proposed rule's impacts on small business, NPS must describe how the fishing industry is organized and assess the entities affected by its rule. Neither the proposed rule nor the EA undertake this assessment. The EA does not convey the 19 II r 11 'I fffllrll·l 1111 I ·1111011n I I I complexity of seafood harvesting and processing operations or the number of entities involved in a typical fishing operation. NPS has acknowledged that fishing entities affected by the proposed rule are "small entities" for purposes of RF A analysis. Affected entities include fishermen foreclosed from fishing in Glacier Bay waters, including fishermen, vessel owners and crew who have relied on Glacier Bay to harvest fish or shellfish, and other fishermen who would be affected by the influx of others displaced from Glacier Bay. It does not appear that NPS has considered the rule's impacts on vessel owners or crew members. Many permit holders lease vessels used in their fishing operations. Payments to vessel owners are often made through an agreed share of harvest proceeds. Lost fishing grounds translate into losses to firms that lease vessels, as well as to permit holders .. A similar share arrangement exists among crew members and some skippers. During the fishing season a reduction in gross earnings would translate into reduced earnings for crew members. Local communities and small fish processing entities also are adversely impacted by the proposed rule, and cannot be overlooked in this analysis. See Attachment G for social and economic profiles of several communities in the Glacier Bay area. Many processors producing fin fish and shellfish in the vicinity of Glacier Bay and other landing ports such as Petersburg, Sitka, Pelican, Hoonah, and Juneau will experience a direct and uncompensated loss in earnings due to lost access to fish product. Based on information shared with the Glacier Bay workgroup, the two local Dungeness crab processors in Gustavus will probably incur losses requiring them to cease operations. The cost of obtaining product from outside Glacier Bay proper will significantly impact the cost of operations for these small entities. Dungeness crab impacts will be realized particularly in Gustavus, Pelican and Juneau, among other local communities. Tanner crab processing losses would occur primarily in Petersburg and Juneau. Halibut processing impacts are likely to be primarily felt in Juneau, Petersburg, Sitka, Hoonah, Pelican, Excursion Inlet, and other areas in Southeast Alaska. Salmon processing losses could impact operations in Excursion Inlet, Hoonah, Juneau, Pelican, Petersburg and Sitka. Affected entities are significantly impacted For fishermen displaced by the proposed rulemaking, there are a number of costs associated with movement into new fishing areas. Since all other fisheries in the region are fully exploited, entry into other fisheries will result in reduced earnings for fishermen in more congested fishing areas, and increased costs for the fishermen displaced from the Glacier Bay area. Additionally, costs of locating fin fish and shellfish populations and learning how to catch them in new areas may be substantial for some fishermen. These costs may be significant enough to force some fishermen out of the industry altogether. It is reasonable to assume that the majority of displaced fishermen from Glacier Bay will not disseminate widely throughout Southeast Alaska. Due to the small size of their 20 fishing operations, travel times, and other considerations, the fishermen are likely to remain in the northern part of Southeast Alaska. The increased effort on finite fish resources will tend to result in decreased income for all fishermen in this area. More concentrated effort also places pressure on fish resources, increases risks of local depletion of fish stocks, and risks reduced long term yield for some species. For example, given recent historical halibut fishery data, the Glacier Bay catch of halibut was approximately 343,000 lbs. in 1996. During the same year Icy Strait had 608,000 lbs. of production. If all harvesters from Glacier Bay were to shift effort into Icy Strait, this statistical area could see as much as a 50% increase in catch. Significant added Icy Strait commercial harvest would place additional pressures on the halibut stock in that area, could have adverse effects on sport fishing opportunity, and may decrease commercial fishing incomes for local fishermen lacking the ability to fish beyond the immediate area . . In addition, displaced fishermen may incur costs associated with the loss of diverse fishing opportunities. These opportunities are important to Glacier Bay area commercial fishing operations. Most Glacier Bay area fishermen are sustained on very low profit margins for each fishery. Fishing entities often rely on several permits and fisheries to remain fmancially viable. Removal of some fisheries or fishing alternatives may have a significant adverse impact on the financial health of these local operations. This may be especially true for the smallest fishing entities, whose small boats cannot withstand conditions for participation in other fisheries and less protected waters. Like the fishermen, fish processing operations require diverse opportunities and access to many different species and fisheries to remain financially competitive. The costs of limiting or removing some fisheries can be substantial. These impacts on processing operations should be better assessed before NPS proceeds with future rulemaking. Commerce department guidelines identify regulatory impacts as significant if they result in a 5% decrease in gross revenues for 20% of the affected entities, or would force 2% of the affected entities to cease operations. See, e.g., 63 Fed. Reg. 55998 (Oct. 20, 1998). In the case of the troll, Tanner crab, and Dungeness crab fisheries conducted in Glacier· Bay, an analysis of fish ticket data confirms that total gross earnings of fishing operations that held these permits are far in excess of 5 % of their total net earnings or income within these fisheries. According to gross earnings reports from the Commercial Fishery Entry Commission, fishermen who made landings on Tanner and Dungeness crab permits in Glacier Bay realized over 10% of their average crab earnings from their landings in Glacier Bay statistical areas. This average is estimated from 1987 to 1996. For salmon hand and power troll fisheries, it is not possible to precisely estimate landings on these permits from harvests in Glacier Bay proper using existing fish ticket information, due to the more extensive area incorporated in District 114. For troll operators making landings within District 114, over 10% of their total troll earnings are derived from this area. Sub-districts 114-70 to 114-77 are not coded in fish tickets for the troll fisheries. 21 111~':111'-;r· Informal assessment indicates that troll fishermen utilizing. the sub-districts in Glacier Bay, especially the winter chinook salmon fishery, would be significantly impacted by alternatives outlined in the proposed rule. Other fisheries that occur within statistical areas 114-70 to 114-77 or that correspond to International Pacific Halibut Commission statistical area 184 may be significantly impacted by the eventual elimination of all fishing in Glacier Bay proper. The IPHC has only coded statistical area 184, corresponding to Glacier Bay proper, since 1994. From 1994-1996, statistical area 184 produced 4% of the total halibut earnings of participating fishermen. Again with respect to average income,· and considering the most dependent fishermen, the State is concerned that elimination of fishing privileges could significantly impact statistical area 184 fishermen. In summary, NPS must assess this and other information relevant to economic impacts on small entities in a regulatory flexibility analysis made available for public review and comment. NPS' current certification of no significant impact lacks an adequate factual basis and factual analysis to support its determination. An initial regulatory flexibility, with public input on agency assumptions and conclusions, would address the factual issues in more depth. The RF A requires this process before NPS may proceed with rulemaking. Additional comments applicable to economic impacts may be found in Part Nine concerning NEP A compliance. 22 PART EIGHT: ADDITIONAL ECONOMIC RELIEF Since the 1998 Act was completed, it has become apparent that implementation will result in uncompensated damages beyond what has been suggested by the Glacier Bay EA or implied in the certification of no significant impacts. We further understand that Congress may consider additional monetary compensation to address these impacts to fishermen, seafood processing entities, and communities impacted by the 1998 Act. The commercial fishery has been the only long-term stable economy in much of Southeast Alaska. The closures of fisheries will have ripple effects beyond the immediately affected fishermen to the crew, vessel owners, processors, suppliers, banks, seasonal workers, business sector, and schools funded by fish taxes. The following is a partial list of adversely affected entities and their damages: • Commercial fishery entry permit holders for affected finfish and shellfish fisheries, including loss of full use of permit, fishing rents, rents for superior skill, and reduction in capital value of gear and vessel; • Vessel owners (those without entry permits) with reduction in share earnings from lost fishing opportunity in the affected areas, and additional costs associated with crowding and shifting effort on other fisheries; • Crew members participating in fisheries in the area; • Seafood processors for shellfish; • Seafood processors for finfish; • The State -losses for commercial fish business operators tax revenues; • Communities -losses for commercial fish business operators tax revenues; • The State -cost of increased administrative and management burdens; • Communities -cost of indirect impacts on small firms; • The State -losses from precluded future fisheries; • Fishermen who have not made historical landings in Glacier Bay -loss of alternative fishing locations and competition from fishermen displaced from Glacier Bay. 23 PART NINE: NATIONAL ENVIRONMENTAL POLICY ACT COMPLIANCE This section documents the inadequacies of the EA is it applies to the April 1997 proposed rule. As previously stated, the EA is seriously flawed and should not be used as a basis for decision making. We further conclude that an EIS would have been and may still be required given the extent and gravity of impacts of the proposed rule, as well as the level of controversy associated with continued commercial fishing in Glacier Bay. Inadequacies of the document are summarized as follows and are subsequently described in more detail: • reliance on incorrect .assumptions • failure to use best available data • failure to adequately address socioeconomic impacts • impacts of continued commercial fishing are overstated • impacts of commercial fishing restrictions are understated • failure to address impacts on local communities, culture and subsistence fishing • NPS' certification of no significant impact is unfounded In addition, we note that the 1998 Act essentially defined an alternative which is different than any of the alternatives in the proposed rule or the EA, thus further detracting use of the already-flawed EA from future decision making. Regarding the specific alternatives in the EA, we appreciate that the 1998 Act has replaced and rendered moot many of the concepts and proposals that the State found objectionable. These include seasonal restrictions during visitor use periods, prohibitions of gear types and fisheries in the phase-out portion of the lower bay as well as the outer waters, and incorrect assertions that continued fisheries would only be managed under an undefined "cooperative fisheries management plan". Each of these issues is addressed elsewhere in this letter. Reliance on Incorrect Assumptions The EA does not account for the significant changes to the preferred alternative necessitated by the Appeals Court decision in Alaska Wildlife Alliance v. Jensen described earlier and as legislated by Congress in the 1998 Act. In addition, the State disagrees with the erroneous statement that the "no action" alternative would necessitate immediate closure of all commercial fishing within park boundaries. See Part Three and Attachment A. This error alone renders the "no action" alternative unreliable and places the entire EA in question. 24 • ~ ' Failure to Use Best Available Data The EA failed to properly consider extensive biological or environmental information available from ADF &G on specifics of stock management, population assessment, and in-season management tools. Much of this information was provided to the NPS by ADF&G during work group meetings held over the past several years. We regret that this information was not fully utilized. In addition, much of the existing socioeconomic analysis generated by Dr. Steve Langdon under contract to the NPS, including that presented at public meetings, does not appear to have been considered. Regarding the Southeast Alaska economy, the data reported on the magnitude and importance of commercial fishing in is in error, and in many cases measures of employment and income are not presented in a consistent manner. Failure to Adequately Address Socioeconomic Impacts The socioeconomic effects analysis for each of the alternatives is superficial, at best, rendering conclusions that appear arbitrary and capricious in many instances. See also Part Seven: Regulatory Flexibility Act. Impacts of Continued Commercial Fishing are Overstated Many potential impacts of commercial fishing on other resource uses and values are overstated. There is also no attempt to actually identify real impacts of commercial fishing on the stocks harvested. There are no estimates of expected changes in abundance or other population parameters. Thus there is no real measurable goal, making the entire document an exercise in uninformed speculation, not science. The EA implies there are user conflicts between commercial fishing and viewing and recreational visits to the park. As discussed in Part Three, commercial fishing generally does not detract from the park visitor's experience. In addition, the EA downplays or inadequately characterizes the success of fishery management under state jurisdiction and the healthy status of existing fisheries. There is also a misleading implication that commercial fishing removes so much biomass that there are significant impacts of virtually every fishery on ecological processes. There is little evidence for this view. It appears the EA has used speculative and poorly documented concerns to justify unstated park management objectives. Impacts of Commercial Fishing Restrictions are Understated The extent and range of social and economic impacts that could occur to these communities and individuals has been significantly under reported. Existing Glacier Bay fisheries can be described as small-scale fishing operations that are mostly family owned and operated businesses upon which nearby small rural communities are highly dependent for their seasonal cash economy. The small scale of this economic mix leaves affected communities highly vulnerable to major changes in a dominant portion of the economy. According to the 1998 Alaska Department of Community and Regional Affairs 25 Community database, commercial fishing is one of the largest private employers in Gustavus, with 38 residents holding commercial fishing permits. The EA inappropriately implies that commercial fishing is not an important component of the community. See Attachment G for additional community profile information. See also Part Seven: Regulatory Flexibility Act. The section on communities of SE Alaska also excludes important facts relative to the phase-out alternatives. The EA fails to discuss the high level of unemployment and under-employment within nearly all of the communities around Glacier Bay. Unemployment directly impacts availability of alternative occupations for displaced commercial fishermen, processing workers, crew members, and persons from the support sectors of each community impacted by the proposed regulations. The impact analysis section on each of the communities downplays the indirect effects of commercial fishing to the economy of larger communities in the region. For example, while Juneau is portrayed as having little direct impact from reduced commercial fishing in Glacier Bay, it is an important service supplier to the commercial fishing industry. Many northern Southeast fishermen buy supplies or have part time lodgings in Juneau. Failure to Address Impacts on Local Communities, Culture and Subsistence Fishing The EA alludes to the fact that effects on the cultural and subsistence activities of local residents may exist, but does not attempt to analyze these effects. The EA should provide a better description of both the existing and historic subsistence and personal use fisheries by local communities and a thorough assessment of the impacts of eliminating these historical uses. Theodore Catton's 1995 administrative history of the park (cited in the EA's bibliography), Dr. Langdon's recent work, and the extensive records from public meetings provide sufficient information on this issue. Much of the information in these sections of the EA appears to come from the Department of Community and Regional Affairs community database reports. These sources should be specifically cited. NPS' certification of no significant impact is unfounded As previously discussed in Part Nine, the State does not agree with NPS' conclusion that implementation of the proposed rule would have no significant impact. Due to the flawed assumptions and inadequate analysis summarized above, the NPS cannot justifiably conclude the proposed rule would have "no significant impact". Furthermore, the NPS has not conducted the required analysis pursuant to the Regulatory Flexibility Act. These issues are discussed in greater detail in Part Seven. 26 PAGE-SPECIFIC COMMENTS Chapter 1 Purpose and Need. Surprisingly, there is no discussion or even recognition of disputed claims over jurisdiction over submerged lands, waters, and commercial fisheries in Glacier Bay. Pages 1-3: Objectives listed on page 1-3 do not match with objectives listed in other sections of EA. Page 1-4 and 1-5 incorrectly cites ANILCA requirements for management planning and purposes of the unit contained in Sections 201 and 1301. Page 1-7. _We question the derivation of the "new mission statement" as it is inappropriate if over turns terms of ANILCA, particularly the legislated directions for making management determinations adopted in plans through the public process for plans and their revisions required by ANILCA sec 1301. Page 1-9. The State provided extensive comments on the Vessel Management Plan and associated rulemaking that were not addressed by the NPS. We, therefore, incorporate by reference previous State comments as they apply to this portion of the EA. Page 1-13, Potential Effects on Commercial Fisheries: The EA fails to fully address the effects of the closures with respect to reduced harvests, longer distances to processors, and more competition on other areas. These impacts could in turn force additional commercial fishermen who are excluded from Glacier Bay to either move their residence or go out of business. Page 1-14: Concern over marine mammal disturbance, collision and petroleum emissions by commercial vessels appears overstated in light of the potential for these impacts by the cruise ship industry which was recently increased. Commercial fishing vessels may cause less disturbance to marine mammals because they are not entering the park with the goal of viewing marine mammals. They are also generally slower moving vessels that travel mid-channel. The NMFS has concluded that commercial fishing activities and vessels do not appear to disturb whales. Page 1-5; and Subsistence Activities, Page 1-19: The EA incorrectly states that subsistence is. not authorized; ANILCA only precluded subsistence hunting in the park. The State asserts subsistence fishing is allowed in the waters. Sport Fishing, Page 1-19: The EA states: "The NPS recognizes that sport fishing is a resource issue closely related to commercial fishing, and that the public has concerns related to sport fishing. The NPS is interested in reducing the effects of sport fishing and 27 ffitrmlii"ll '1 ----·----·-·· -·----" in recent years has initiated a program to begin quantifying those effects. " This illustrates an unstated and inappropriate objective to reduce or eliminate sport fishing based on speculative impacts we believe are unfounded. The EA is generally deficient in not properly taking the full scope of intended actions regarding all harvesting into account. The preferred alternative too narrowly addresses closure of commercial fisheries and ignores the potential for shifts among commercial, recreational, charter boat and personal use fisheries, particularly rockfish, halibut, lingcod, and salmon. The NPS should present a more thorough analysis of these probable effects. Chapter 2: Description of the Alternatives Elements Common to all Action Alternatives, Page 2-1: See Part Four comments on "new and expanding fisheries." We also note disagreement with any residual intent to limit gear types (except as specifically legislated) to those "historically prevalent in park waters." Gear types evolve and improve. Based on historic records, it would be difficult to show what gear types have been "prevalent" in park waters. Throughout the EA, NPS appears to focus on what it considers to be traditional fisheries. There is no recognition, and in fact an apparent intent to prohibit without impact assessment, harvest of species that have been limited or sporadic (e.g., sea urchins, clams, sea cucumbers). These are not new fisheries. Assessment of these fisheries in the EA is noticeably missing in most sections. For example, the Board of Fisheries has adopted a management plan for commercial cucumber fishing (5 AAC 38.140(k)(13), in which the Board has closed the waters of Torch Bay north of the latitude of the southernmost point of V enisa Point to commercial fishing of cucumbers. This is one of 13 areas closed as part of the management plan. Other commercial, albeit small, fisheries known to have occurred historically include urchins, geoduks, and abalone. Page 2-1: The list of"certain actions would be implemented under each alternative" incorrectly references the 1983 regulations cooperatively developed by the National Marine Fisheries Service with the NPS and the State to protect whales. Subsequent to Endangered Species Act regulations, the NMFS determined that the shrimp closures were unnecessary and unrelated to the status of the whales. The State kept the shrimp fishery open as a result and the Park Service refused to drop this regulation. Eventually .so as not to implicate a commercial fisherman with conflicting federal and state regulations, the state closed the fishery despite no conservation need or justification for protection of whales. While the Alaska pink shrimp (Pandalus eous) is important in the diet of the humpback whale; the primary species targeted by the commercial pot shrimp fishery in Glacier Bay adjacent and outer coast waters is the coonstripe shrimp (Pandalus hypsinotus), a primarily benthic species, not a common humpback whale prey species. 28 ' .. Alternative 1, Proposed Action Page 2-4: There is no biological basis for proposing to authorize halibut longlining in outer waters while jigging for lingcod is proposed to cease. We object to restriction of these fisheries or gear types outside the Board of Fisheries process. Perhaps the authors are unaware that bycatch is a major feature in the halibut fishery, but not for lingcod. Consistent with comments in Parts Three and Four, we note that commercial fisheries will continue under the present state and federal regulatory regimes. The EA also fails to identify what federal regulations and "non-conflicting state regulations" the proposed management plan would be based upon. Page 2-2 through 2-7: One of two objectives for the proposed rule includes "reduce conflicts between commercial fishing activities and the recreational opportunities provided by the national park, while providing some continued fishing opportunities in the outer waters." Significant conflicts between commercial fishing activities and recreational users are not documented here, and we are not aware of such conflicts. As previously stated, most visitors react positively to the presence of fishing vessels. The other listed objective is to "enhance protection of the park's ecological resources." No documentation is provided throughout the EA or public testimony that the park's resources are being damaged by commercial fisheries and thus in need of additional protection. Hypothetical impacts raised in the EA are based on management practices that no longer exist under State of Alaska, International Pacific Halibut Commission, North Pacific Fisheries Management Council, nor National Marine Fisheries Service regimes. NPS has not shown evidence that closure of the commercial fisheries on fish stocks which migrate through park waters would affect ecological resources of the park. It appears, therefore, that the underlying rationale for these objectives is based on unstated intent. The EA should be forthcoming about such unspoken intent. Page 2-5. The EA identifies additional management objectives specific to the outer waters as: "limits on the significant expansion of ongoing fisheries; protection of resident and sensitive fish species, including salmonid populations that spawn within the park; protection of other park wildlife and resources; and minimization of conflicts with visitor use." These objectives are based on unstated intent and lack criteria to implement. The EA states: "Where NPS management objectives are not met under cooperative state/federal management, the secretary of the interior could close or modify ongoing fisheries to protect park purposes and values. " The Service needs to define both its management objectives, criteria, and ''park purposes and values", including the threshold under which a threat to park purposes and values would trigger an attempt to usurp state fisheries management, i.e. if the Secretary of the Interior decides to "to close or modify ongoing fisheries." The park purposes for Glacier Bay laid out in Title II of ANILCA 29 ·-,---, ITT I contain none that would necessitate oversight of the respective state and federal fisheries managers. Research, Page 2-5: "The NPS would continue and initiate fisheries research within Glacier Bay National Park, including studies of the relationship of fisheries to park resources. For comparative study purposes, research projects may require closures of specific portions of the park's marine waters to fishing. " We object to lack of recognition of cooperation with ADF&G and intent to close existing fishing areas to meet research needs that have not been cooperatively developed. We appreciate the recognition of cooperative research in the 1998 Act which supercedes this intent. Page 2-7: Only one community is highlighted as having sufficient potential socio- economic fallout to be included in any mitigating measures. Other local communities such as Elfin Cove, Gustavus, Pelican, and Yakutat merit a similar approach. Chapter 3: Affected Environment Commercial Fisheries, Page 3-3. State fisheries are managed by ADF&G; the Alaska Board of Fisheries determines allocation. The last paragraph foresees difficulty in determining permit eligibility. Regarding the third paragraph of this section, we object to the representation that the state's fish ticket harvest reporting system has "two inherent problems" which "limit the assessment of amount and location of harvest for some fisheries." The State of Alaska has established statistical reporting units based on features of the fisheries, not political boundaries. The State of Alaska has not required separate statistics for Glacier Bay. Notably, salmon are for the most part simply_ migrating through these waters. It is not necessary for rational and effective salmon management that statistics be kept in smaller units. Especially in light of the 1998 Act which resolves numerous issues, we believe this "problem" is overstated. It is also apparent there is insufficient understanding of the State's statistical reporting units as illustrated by routine incorrect references to our "Districts", which are laid out in regulation, and "statistical areas". This chronic error renders the NPS analysis of impacts and affected fisheries questionable. The EA also overstates mostly insignificant problems that the updating and corrections to the state's database creates for their analysis of actual landings in various small areas with the area of the park. Tanner Crab Pot and Ring Net Fishery, Page 3-4: Management is not "by major fishing grounds" as the Service states but is a limited entry fishery managed regionally (Southeast Alaska as a whole). The major grounds are correctly identified. Seasons are regulatory time periods when openings may occur. The Tanner seasons occur from Jan 15-May 1 and Feb 15-May 1 (depending on area as correctly stated), but the EA fails 30 . ' to note that the fishery openings are short within these seasons. The harvest ceiling is not a guideline harvest level (GHLs are simply guidelines, the ceiling is a cap). King Crab Pot Fishery, Page 3-6: Pot limits are 20 to 50 (see Table 3.1 footnote). Stock assessment surveys for red king crabs in Southeast Alaska are not considered ''preliminary". They are an integral part of the State's management program. Table 3.1, Page 3-10: DSR NSEI GHL is 110,000 round lb. (not 132,000 dressed lbs) in the directed fishery. King Crab Pot Fishery, Harvest, Page 3-11. The narrative on king crab harvests is confusing (pounds in sentences 1 and 2 of paragraph 3 don't agree). The gist is that more goldens are harvested than reds and blues, and most of this comes from Icy Strait. Dungeness Crab Pot Fishery, Harvest, Page 3-13: Average annual harvests for the bay proper and Icy Strait are 112,000 and 140,000 (as reported on p. 15); reported amounts on page 13 of2.9 and 3.6 million pounds, respectively, are totals across the 1969/70 to 1994/95 seasons per ADF&G (1996). Weathervane Scallop Dredge Fishery, Management, Page 3-17. In the first paragraph, the third sentence is somewhat misleading. It should be corrected to reflect that in addition to Yakutat and Kodiak, scallop harvests have been taken in northern Southeast Alaska, Kayak Island (southeast of Prince William Sound), Cook Inlet (Kamishak Bay), Alaska Peninsula, Dutch Harbor, Adak, and Bering Sea. Among these, areas of largest recent harvests are Yakutat, Kodiak, and Bering Sea. In the first paragraph, fourth sentence, the citation ofNMFS et. al. (1996) doesn't match NMFS et. al. (1996a) in the literature cited section on Bibliography page 20. Regardless, the proper citation should probably be NPFMC (1996)--the North Pacific Fishery Management Council (1996) as the management plan is published by NPFMC and written by agency staff who are members of the NPFMC scallop plan team. In the second paragraph, fourth sentence, the reference to two fishing seasons is misleading. Any one area has only one fishing season per year. Also, it is true that the season remains open "until closed by emergency order"-because that is the tool that is used to close fisheries, not because there is an emergency. A more accurate statement would be that the season remains open "until the annual scallop catch quota or crab bycatch caps are reached at which time the fishery is closed by emergency order." Shrimp Pot Fishery, Management, Page 3-19: This description of the pot shrimp fishery in southeast Alaska is too general, biased in its representation of historical fisheries, and gives an inaccurate impression of the pot shrimp fishery in the waters of Glacier Bay and adjacent waters. A more accurate discussion confined to Districts 14 and 16 should re~l~ce this description. 31 nm ~m IIIIIIIIUI Page 3-20: The pot shrimp fishery in Glacier Bay and adjoining waters targets primarily coonstripe shrimp. Spot shrimp are a very small proportion of the harvest of Districts 14 and 16. District 16 also includes Lituya Bay. Page 3-22: There is insufficient stock assessment information to justify describing the pot shrimp fishery in Districts 14 and 16 as underexploited. However, the intention of the ADF&G and the Board of Fisheries in setting the upper end of the guideline harvest levels at 20,000 lb each for Districts 14 and 16 was to provide conservative harvests in the absence of stock abundance information. Pacific Salmon Troll Fishery, Management, Page 3-22: In the first paragraph, the EA incorrectly cites the ADF&G report for 1996 harvests. Nowhere does the report state that "Trollers harvested 67% of chinook and 60% of coho salmon in the Southeast Alaska region in 1996 ". According to the report, trollers actually harvested 65.1% of all commercially caught chinook and 64% of the commercial catch of coho. The commercial fishery reports do not report on the sport fishery catches. Page 3-26: The first paragraph is incorrect in that most of the troll effort does not occur in Icy Strait during the winter fishery. The second paragraph states that a third of the Cross Sound harvest area is within the · Park; however, very little ofthe catch actually comes from the portion of the Sound within park boundaries. The third paragraph is mostly incorrect and strongly infers a lack of attention by managers to assure the sustainability of chinook occurring in mixed stock fisheries occurring during the summer season. The following is a more accurate portrayal of this fishery: "The summer season is July 1 through September 20 and targets primarily coho and chinook salmon. The management plan calls for harvesting 70% of the remaining quota of chinook salmon during an opening beginning July 1. Fallowing the closure of the first summer chinook opening, the areas of high chinook salmon abundance are closed to trolling. If approximately 70% or more of the remaining chinook salmon abundance was taken during the initial opening, the areas of high chinook salmon abundance will remain closed for the season." The fourth paragraph needs to clarify that the waters of Dundas Bay are closed simply because ADF&G closes the heads of most bays. There is no other significance to this closure. Paragraph five should be corrected to recognize that the Alaska Board ofFisheries determines locations of the total number of chinook between user groups. The source and years is not provided of the 1 0% reportedly taken in the vicinity of the park, thus cannot , be verified, and incorrectly identifies Districts 114 and 116 as statistical areas. The first sentence is an inaccurate portrayal of which agencies allocate which portions ofthe troll catches and thus should be rewritten as follows: 32 "The total quota for the Southeast Alaska chinook fishery is set by agreement within the Pacific Salmon Commission, or when there is no agreement, is specified by the United States 'Letter of Agreement Regarding an Abundance- Based Approach to managing Chinook Salmon Fisheries in Southeast Alaska. June 24, 1996". Troll Fishery, Harvest, Page 3-28: The second sentence of the first paragraph incorrectly implies that most of the troll fishery occurs in the park claimed boundaries. The majority of the fishery takes place south of this area. The second paragraph reflects confusion. District 116 is wholly within the water claimed by the park, as the State claims jurisdiction ofwaters out to only 3 miles. Districts 156 and 157 are seaward of District 116. We have data for those districts, so we have difficulty determining what the 90% to 99% statistic from Taylor and Perry references. Troll Fishery, Participation, Page 3-28: The first paragraph again incorrectly refers to the districts as statistical areas. Excursion Inlet Purse Seine Fishery, Pages 3-29 through 3-33. Park boundaries bisect Excursion Inlet, thus the fishery occurs both inside and outside park boundaries in the inlet and south to the northern tip of Porpoise Island. A substantial, but unknown, proportion of the harvest at Excursion Inlet occurs outside the boundaries of the park. Additionally, openings of short duration (3 to 15 hours) occasionally occur in August south to the southernmost tip of Porpoise Islands in conjunction with openings inside Excursion Inlet to harvest pink salmon surplus to escapement needs, primarily from streams along the Homeshore south of Excursion Inlet. Groundfish Dinglebar and Longline Fisheries, Management, Page 3-36: A more complete definition of groundfish should be included. See State of Alaska groundfish regulation book. Most of Icy Strait is not within the boundary of the park and, therefore, the NPS can't really infer how many of the groundfish landings came from "park waters". Y elloweye are not the most common rockfish in Southeast. They are the dominant species in the directed DSR fishery by weight. Lingcod, Page 3-41: The statement explaining recent increase in catches on the outer coast: "This may perhaps be explained by the inability of some groundfish fishers to successfully procure Pacific halibut IFQ. . .. " is speculative and without apparent purpose in the EA. It is illegal to target lingcod with longline gear (despite the incorrectly paraphrased information cited aspers. comm. from D. Ogilvie). Rockfish, Page 3-41: Pelagic Shelf Rockfish no longer includes Black Rockfish. The last sentence on this page refers to the abundance of rockfish. In the absence of stock assessment information for the Glacier Bay area, what is the source of this information? 33 Sablefish, Page 3-43: Since 1996, it has been illegal to retain a bycatch of sablefish in the outer coastal waters within the boundaries of Glacier Bay. The only legal removals are from the Northern Southeast Inside (NSEI) subdistrict limited entry fishery for sablefish. Removals from so-called "park waters" by permit holders are negligible. Tanner crab, Page 3-44: Technically, C. bairdi is the only commonly exploited Tanner crab in the area. Two other species, C. Tanneri and C. angulatus, are commercially exploited species of Tanner crab south of the Aleutians. Harvests are by permit, are small in volume, and must occur in waters deeper than 200 fathoms. Dungeness crab, Page 3-49: No information is given on timing of mating or molting, which are important constraints in setting fishing seasons. No indication is made of the extreme levels of predation by sea otters, which may eclipse commercial fishing harvests in the near future, as has happened elsewhere in Alaska. Pacific Salmon (Oncorhyncus species), Distribution, Page 3-53: Paragraph three should clarify that stream-type chinook are by far the majority. They require suitable riverine habitat to rear successfully. Life History, Page 3-54: In paragraph 3, we surmise the timing of mean spawning can be highly variable compared to the "run" timing. Non-commercial Marine Species, Page 3-61 to 63: The discussion of trophic relations is simplistically qualitative and of little use in evaluating alternatives. Hoonah, Page 3-96: Paragraph 2 states that Hoonah-based purse seiners operate primarily in waters far to the north and west of Icy Strait. This is not true. No purse seining occurs to the north of Icy Strait in Southeast Alaska. Rather, these boats fish throughout the region but tend to concentrate in waters of Chatham Strait and the southeastern shore of Icy Strait when these areas are open to fishing. Chapter 4: Environmental Consequences Pages 4-A-1 through 37: This section constitutes an unnecessarily negative representation of human activities which have occurred since long before creation of the park and which continue in a responsible and conservative manner. Commercial fisheries can indeed change some characteristics of a given population, but such possibilities are carefully assessed to assure sustained yield of healthy, biologically sound populations consistent with the State of Alaska's constitutional mandate. The tone implies the NPS would prefer to stop all harvests of all species that might occur near the park. Unless a population is completely enclosed in a no-take area within park boundaries, that population will be affected by a fishery somewhere, sometime during its life cycle. The 34 1m 1 rr· · ·· ---··· HI I I f' EA's apparent bias opposing any harvest offish and misrepresentations of existing fisheries is irresponsible. General Effects on Water Quality, Page 4-A-1: The general effect of commercial fishing and oil spills is overstated and taken out of context. The primary threat from oil spills is from the large cruise ships. There is no relevance drawn of possible impacts of commercial fishing in terms of vessels, oils, etc., in relation to similar concerns for recreational boats, charter boats, or cruise ships. General Effects on Commercially Harvested Marine Species, Pages 4-A-2 through 4- A-13: Contrary to the assertion that a natural population is an unfished population, · ANILCA specifically recognized humans as a part of the natural ecosystem. Man has been harvesting resources in the area of the park for thousands of years, including commercial fisheries for over 1 00 years. In the natural world, populations often grow to a level that is unsustainable, causing collapse in both prey or forage and predator species. The EA paints a picture of a mythical steady state where, in fact, wide fluctuations in abundance have historically been observed. Additionally, the third paragraph contains an archaic view of a "balanced" population, where temporary environmental effects cause populations to fluctuate above the carrying capacity. There is little basis for this view for many commercially harvested species. For Glacier Bay in particular, with rapid glacial retreat and the recent establishment of sea otters, long-term dramatic change is the rule rather than the exception. Consistent with the state constitution and statutes, the Department manages fisheries based on sustained yield, not optimum yield or other goals described. Further, the State typically does not base management on "projections" as indicated in the EA. This section, including descriptions of how the state manages commercial fisheries, is superficial and illustrates a lack of understanding about the state's management program. Page 4-A-3 is an example of this lack of understanding: "The Alaska Department of Fish and Game manages all the fisheries of Southeast Alaska, including those in Glacier Bay · National Park, on a projected optimum yield basis. Permits and harvest quotas are regulated annually to achieve desired harvest levels. " The paragraph goes on to incorrectly and repeatedly discuss management for "optimum harvest" and "optimum yield". The State of Alaska manages for a "sustained yield" as required by the state constitution. In practice, sustained yield is a varying harvest level, below maximum sustained yield and optimum yield. We also do not regulate permits and harvest quotas to achieve a desired harvest level in any salmon fishery. We use time and area as management tools to assure sustainability of the populations. We also use limited entry as a way to control effort in many, if not most, of our commercial fisheries. Page 4-A-3 also fails to convey that a population's reproductive success is often enhanced, not diminished, by removing a portion of the population, thus intra-specific 35 competition is reduced. This is one primary biological mechanism that often provides for surplus production. Page 4-A-4: The discussion of genetic changes and their significance are speculative and not supported by any data or relevant references. Page 4-A-4 statements include some concepts that should be used throughout this section of the EA regarding the effects of fisheries, instead of those referenced in the paragraphs above. The first full paragraph states: "Because salmon are short-lived and reproduce only once, the maximum level of sustained harvest will occur with only a slight reduction in the overall population biomass from that of an unexploited population. " What this says is that the effect of a properly managed fishery will be small on the population. For example, data that ADF&G provided on coho suggest that, with that low of an exploitation rate, the differences between the exploited and unexploited populations would be indistinguishable. This concept needs to be combined with statements in the first paragraph under "Affects on Migratory Stocks": "The park represents only a portion of habitat used for those species that migrate during their life cycles. For these species, regardless of the level of protection provided in park boundaries, natural abundance and age distribution of the population may be changed by harvest elsewhere. This effect will be most pronounced in salmon populations (but would also occur in other fish species including Pacific cod and sablefish) as these species are highly migratory and may just pass through park waters. " Of course, migratory halibut should also be included in this category. Stock sensitivity and distributional limits (crab), Page 4-A-5: Depressed stock conditions on the outer coast may reflect oceanic based recruitment, which is apparently more variable than recruitment in inside waters of Southeast Alaska. General effects of biomass removal, p. 4-A-6: It is highly speculative rather than scientific to state the expectation that the amount of biomass removal of crab from park waters "greatly alters the natural ecological relationships of the marine benthic communities." There is no scientific basis for this statement . . Tanner crab, Page 4-A-6: The EA cites Woodby (1994) regarding harvest levels; however, the harvest rates in that reference apply to red king crab, not Tanner crab. King crab, Page 4-A-7: Golden king crab experienced a significant recruitment event in 1998. The statement that "king crab are least able to withstand liberal harvest policies" is made without comparison; presumably the EA is comparing king crab to Dungeness and Tanner crabs. The harvest policy for king crabs in SE Alaska is very conservative, so it is unclear why the EA refers to liberal harvest policies and what relevance this has. Shrimp, Page 4-A-7: The primary pandalid shrimp species harvested in Districts 14 and 16 is coonstripe shrimp (P. hypsinotus), not spot shrimp (P. platyceras). There is very 36 n·-. I II little known of the life history of coonstripe shrimp. Its distribution in park waters is very patchy. The population genetic exchange in southeast Alaska remains uninvestigated for this species. Guideline harvest levels for pot caught shrimp in districts near Glacier Bay were not simply "set arbitrarily" as indicated here, but were set at a low level after reviewing catch statistics in the absence of information on stock size to promote conservative and sustainable fishery. Species Effects, Weathervane Scallops, Pages 4-A-7 through 4-A-8: On page 4-A-8, the second full paragraph is misleading. The statements about "recent" growth of the fishery are now outdated and do not reflect state and federal management actions taken in response to a problem which occurred in the early 1990s. Statewide the fishery grew from 340,000-683,000 pounds of shucked meats per year during 1985-1989 to 1.2-1.8 million pounds during 1990-1994. (Note part of the increase was attributable to a brand new fishery in the Bering Sea which was previously unfished.) The growth of this fishery, reported by Shirley and Kruse (1995), led to the development and implementation of a state comprehensive fishery management plan by the Alaska Board ofFisheries in 1994 (Kruse 1994). Since then, a federal fishery management plan has been approved, and an amendment to the plan which redefines overfishing, maximum stained yield (MSY), and optimum yield (OY) was reviewed by the public and adopted by the Secretary of Commerce in 1998. Statewide scallop landings totaled only 243,000 pounds in 1995,732,000 pounds in 1996, and 786,043 pounds in 1997. Thus, the growth of the fishery has been stopped by state and federal management plans; indeed recently catches have been cut to less than half of the 1. 8 million pound peak. The new statewide harvest cap for all areas is 1.24 million pounds. Harvests in all areas are constrained by area-specific catch quotas and bycatch caps. The harvest quota for District 16 is 0-35,000 pounds; this quota is widely regarded to be conservative. This paragraph should be revised to reflect the implementation of these conservative harvest strategies. Nonetheless, the possibility oflocalized depletion still exists, but the State of Alaska has implemented a mandatory observer program on all scallop vessels as a management tool to safeguard against this outcome. For instance, shifts to younger ages and declining CPUE in District 16 would providejustification to area managers to set the quota toward the lower end of the 0-35,000 pound harvest range. Species Effects, Pacific Salmon, Page 4-A-8: The statement "Continued harvest would affect park stocks more than non-park stocks" makes no sense. Continued harvest has minimal effects on any stocks if managed as currently is managed by the state. Furthermore, we are uncertain what the EA defines as "park stocks". There are few salmon which spawn within the park; most are migratory, spawning over a wide area. Harvest of Park vs. Non-Park Stocks, Page 4-A-9: This paragraph is a real stretch of hypothesis and assumptions for an area which has few spawning salmon within the park 37 uplands due to the recent geologic changes and retreat of the glaciers. The last sentence implies that continuing commercial harvests in the area or on stocks bound for park lands is having ecological consequences, reducing opportunities for fish to "found new runs through straying and colonizing streams." Commercial fishing has occurred in the area for over 100 years, and it's obvious that fish have strayed and colonized even with the present level of commercial fishing. Potential Overharvest of Park Stocks, Page 4-A-9: In the first paragraph, the authors misrepresent ADF &G' s data indicating that if Berners River fish returned at the same time and through the same area, then a 17% exploitation rate would be allowed. The actual exploitation rate on this stock has been around 60-70%. The argument about small populations is probably moot. Similar confusion exists in the second paragraph: "to achieve annual harvest quotas". ADF&G manages for sustained yield, regulating harvests to obtain escapement goals. Also in this paragraph, the last sentence has no basis (and makes no sense) in determining "the overall ecological consequences of continued adult harvest would be greater." Pacific Cod, Page 4-A-11 to 12: The majority of cod harvest is from outside park boundaries. The situation for Pacific cod is similar to that for sablefish in that they are wide-ranging fish with only small catches in "park waters", and therefore are not likely to be greatly affected. The assumption that declining catch levels of Pacific cod in Icy Strait is symptomatic of declining stocks is without merit. The reason catches declined is that the market was weak and the prices low in Southeast Alaska (Pacific cod were readily available in the westward Alaska region). There is little basis for stating that "local populations of Pacific cod in Icy Strait/Cross Sound will undoubtedly continue to experience strong fishing pressure under the existing management regime." First, the Eastern Gulf of Alaska cod quota is rarely taken. Given that cod move freely and that they are potentially one large stock, the fishing pressure cannot be described as strong. Second, fishing pressure is not a function of management alone; in this case market forces are strongly at play, particularly with competition from fishermen to the west forcing prices down and dampening interests in fishing. The State of Alaska harvest objective for cod was set based on averages of commercially landed catch, with realization that much of the bait harvest had gone unreported historically; so, some unreported bait catch is a weak basis for a conservation concern. Lingcod, Page 4-A-12: Quotas are managed to the lower end of the Guideline Harvest Level (GHL). No expansion of the directed fishery is possible in the East Yakutat area and, in fact, the directed fishery catch has been lowered because of the increase in allowable bycatch in the offshore Demersal Shelf Rockfish fishery. 38 The EA incorrectly describes lingcod as long-lived whereas Pacific cod are not. Both are relatively short lived: lingcod have a maximum age of about 20 years while Pacific cod have a maximum age of about 13 years. The State manages lingcod on a small area basis and attempts to move the fleet around to equalize fishing pressure. The EA apparently assumes, based on Gordon (1994), that the fish on the outer coast are resident. The fish there appear to be transient, following feed into the beach at a very distinct window of time in the summer. The concern with localized depletion (Gordon's paper) had to do with taking males off the nest. There is no directed fishing allowed in state waters during the winter months to prevent harvest of males when they are at their nests. Taking transient fish is not expected to cause the same problem. A study conducted on the genetic variation and population structure oflingcod on the Pacific Coast including Alaska concluded that there was not enough difference between the genetics of lingcod to suggest separate stocks along the West Coast, with the exception ofPuget Sound (Jagielo, T.H., L.L. LeClair, and B.A. Vorderstrasse. 1996. Genetic variation and population structure oflingcod. Transactions of the Am. Fish. Soc. 125:372-386). Also, juveniles appear to disperse over a wide geographic range. For these reasons (transient nature of the harvested population, nesting season closure, lack of genetic separation, and juvenile dispersal), it is hard to accept a conservation basis for a lingcod closure on outer coast waters. Rockfish, Page 4-A-13: It is likely that the charter fleet out of Elfin Cove and Pelican take a comparable quantity of rockfish as the commercial fleet and are capable of creating localized depletion as they tend to target the same small areas due to operational constraints. The sentence that starts "As with halibut" is incorrect. Rockfish are viviparous and don't have pelagic eggs. The statement that "larval and juvenile recruitment to the park is therefore largely independent of park stocks" is unsupported by current knowledge. Patterns of rockfish recruitment are unknown, particularly in inside waters. There would be little chance of seeing an increase in removals within park boundaries through the commercial fishery as the quotas are already managed on a small area basis. Sablefish, Page 4-A-13: This section of the EA fails to adequately acknowledge that the proposed changes in the regulations to groundfish harvests would not result in a decrease in harvest but rather would result in increased harvests in waters outside of the park boundaries. The ADF&G report to the Alaska Board of Fisheries (O'Connell1997) is not an adequate reference on the life history of sablefish. 39 General Effects on Non-Commercial Marine Species, Pages 4-A-14 through 4-A-18: The portrayal of indirect impacts and sublethal effects of commercial fishing (4-A-14 & 15) are highly speculative, and it is impossible based on the projections to evaluate any potential benefit from implementing the proposed rule. This section appears to be an attempt to scare uninformed readers and thus garner general support for proposed closures. In so doing, the ability of fishery managers to identify and deal with real concerns of the consequences of various impacts of gear and harvests on the populations and communities is undermined. Pollution, Page 4-A-16: It is unlikely that a marine oil spill from a commercial fishing vessel could cause a "catastrophic and long lasting" impact. Vessels used for commercial fishing are not of the size nor carry enough fuel to have this kind of impact. Marine Ecosystem Consequences, Pages 4-A-16 through 18: The predicted "cascade of trophic, energetic and other ecological effects" throughout the entire marine ecosystem due to commercial fisheries are speculative .and :unsupported. Linking such effects to sleeper sharks is scientifically irresponsible. No evidence is provided, nor is the probable significance described, which would presumably be important in evaluating alternatives. It is also irresponsible and unsupported to contend that the removal of biomass through the level of commercial fishing presently allowed in Glacier Bay is "critical" to natural ecosystem function. General Effects on Marine Mammals, Pages 4-A-18 through 4-A-25: The section on general effects on marine mammals is presented to ''provide the full scope of possible fishing effects .... " Like much of the document, the intent seems to be to rally support for closure rather than to provide real data or analysis that allows a reader to understand the true impact of commercial fishing. Page 4-A-25: The implication that commercial salmon fishing has significantly impacted food for bears provides yet another example of unscientific scare tactics. There is no basis for this claim. In fact the EA ignores the general observation that Admiralty Island supports the world's largest brown bear population, yet salmon spawning in Admiralty Island streams are probably harvested at a higher rate than those in Glacier Bay. Page 4-A-26 states: "One of the major contributions to seabird decline worldwide is entanglement in long line fishing gear". We question the relevance of citing tuna fishery incidental catch rates off Brazil and Uruguay. We also question the relevance of data for murrelets in gillnet fisheries when this gear type is not even used in the area. This general discussion appears to be more scare tactics. General Effects on Maritime Tradition, Page 4-A-33: The EA seriously downplays the effects of the proposed rule restricting many fisheries by saying, in effect, that the 40 maritime culture in Icy Straits is already in serious decline, thus minimizing the real impacts of added proposed closures. General Effects ofNo-Take Reserves, Page 4-A-35 through 4-A-37: The State recognizes that NPS has special conservation objectives; however there is no evidence presented here or in subsequent presentations by reserve specialists and park staff that establishing no-take reserves in Glacier Bay will in any measurable way benefit other local fisheries. This section is largely speculative and states assumptions apparently designed to gamer support from the general population that is unfamiliar with the complexity of the issues at hand. The Service has failed to establish a need or benefit for such marine reserves in Southeast Alaska for the species harvested in Glacier Bay, let alone make a case that Glacier Bay would be a reasonable location for a reserve if one was desirable. The EA also fails to identify a meaningful experimental design that could be used to evaluate the effectiveness of a no-take reserve if one were established. The EA understates the significance of sport harvests in an effort to describe the commercial closures as creating a no-take reserve management plan. Enhancing Fisheries Sustainability, Page 4-A-37: The fundamental criteria for a reserve is to define its purpose and set aside an area that can meet that purpose. Closing areas to commercial fishing for the sake of closing one harvest regime while stocks are still harvested is of questionable value except for a specific purpose for a given stock. The authors themselves acknowledge the weakness of their advocacy for a reserve in their statement "Even with all the above taken into consideration, closing commercial fishing in an area may not necessarily create an effective reserve." Other Effects, Page 4-A-37: The EA states: "No-take reserves could also affect sport fishers and subsistence/personal use harvesters. Effects would depend upon whether restrictions extended to these users, or focused only on commercial harvest; in the case of the latter, there could be benefits from the removal of commercial competition." We desire assurances that the Service has no intention of extending the reserve concept to the non-commercial fisheries occurring within the boundaries of the park. No-take reserves would only affect these other users if the closures of commercial fisheries were likewise applied to the others. Furthermore, as the EA recognizes above, closing all fisheries in these areas may still not necessarily create an effective reserve because of the highly migratory nature of many species. Impacts of Alternative One: Proposed Action Page 4-B-9: There is no biological basis· for discontinuing the commercial pot shrimp fishery in Lituya Bay. Nor are there significant visitors to the area currently being affected. Furthermore, the pot shrimp fishery in the area occurs over a very limited period of time with a very limited harvest. With the expansion of the fishery in other areas of southeastern Alaska the impact of losing this fishing area would be significant. This fishery has been protected by the 1998 Act except within Glacier Bay proper. 41 A fundamental environmental impact of the proposed phase outs and closures of the commercial fisheries both proposed in the 1997 rulemaking (and the 1998 Act) is inadequately addressed in the EA. In many of the commercial fisheries, closures will result in additional crowding and exploitation by fishermen who, without additional revenues to change and more closely monitor, could cause minor to significant impacts on fishery resources, depending upon species and fishery. For example, Tanner crab stocks are currently subject to overharvest with our existing tools. We are trying to develop and obtain funding for preseason stock assessment work. Closing a significant fishing area like Glacier Bay proper will only make the problem worse-more highly susceptible. Page 4-B-11 states that the proposed alternative "would not affect the Excursion Inlet purse seine fishery". Whether or not this is true would depend upon permits or other restrictions that may be pursued by NPS in rulemaking or a future management plan. Page 4-B-14: The closure proposed in the regulations and EA of commercial fishing for lingcod in outer coast waters would have deflected effort to other areas. Total allowable catch for lingcod in the East Yakutat area would have been reduced by the amount that is attributable to the habitat inside the park's outer-coast waters. These impacts were not considered. Under the 1998 Act, this fishery will continue. Pacific cod, Page 4-B-14: Confidential records of harvest locations indicate that about 95% of the Pacific cod harvest in statistical areas in and adjacent to the park is taken outside of the boundaries. Outer waters, Page 4-B-14: This section is confusing in that directed fishing with dingle bars for lingcod would be prohibited under Alternative 1, yet the EA predicts local depletions as if continued fishing would occur (note that directed longlining for lingcod is prohibited under state regulations). There is no argument or evidence provided that closure of lingcod in this area will benefit populations within park boundaries. Pacific Salmon, Glacier Bay Proper, Page 4-B-19: The statement implies "Up to 18, 000 king salmon . . . " would be taken, as though the NPS intends to inappropriately impose a limit. Impacts on Marine Birds, Page 4-B-29: There are little to no data presented on the effects of commercial fishing on marine birds, thus all effects discussed are general observations and speculation. We can't help but note with humor that the section contrasts all the speculative discussions with a conclusion that " . . . effects of commercia/fishing on marine birds are not believed to be substantial; continued commercia/fishing during the phase out is expected to have little effect on marine bird distribution, abundance or population structure " then follows this with the, statement " . . . the closure of Glacier Bay proper to all commercial fishing after 15 years would benefit seabirds, waterfowl, shorebirds and bald eagles . . . " If as they say there is no 42 substantial effect by the commercial fishing on marine birds, how can there be a benefit of eliminating the commercial fishery? Impacts of Alternative 4: (Continued Fishing) Impacts on Commercial Fisheries, Glacier Bay Proper, Page 4-E-3: This section also implies some type of a inappropriate limit where in the second paragraph it states: "fewer than 20 trollers ... " Pacific Salmon, Glacier Bay Proper and Outer Waters, Page 4-E-7: There is no evidence in coho or pink salmon that trolling would affect the fish size. These are ocean fish, and they are all the same size with natural variation. ·-The statement "Reproductive potential and potential recruitment of park stocks would continue to be reduced as a result of continued commercial fisheries harvest" is false. As stated above, if the spawning population is near the MSY size, there should be no loss in either of these parameters. In addition, the Service has failed to define what is meant by the above terms, particularly "park stocks". Cumulative Impacts Cumulative Effects on Water Quality, Page 4-G-1: Although it may be correct that "termination of commercial fishing activities in Glacier Bay in 15 years would eliminate a potential source of water pollution", it is a fairly minute consideration to support eliminating the fisheries, especially considering increasing use levels by all other vessel traffic, e.g. cruise ships, charter boats, kayakers. Cumulative Effects on Commercial Fisheries and Commercially Harvested Marine Species, Impacts on Anadromous Salmonid Habitat, Page 4-G-2: Lay readers would likely appreciate definitions of "mass wasting" and "jokulhaup". Sport Fishing, Page 4-G-3 and 4-G-6. There is an apparent concern by NPS that sport fish harvests are affecting fishery resources in the park. There is also reference to a study being conducted by park staff. If the NPS is gathering data with apparent intent to restrict sport fish harvest, this concern should have been addressed in the EA. More importantly, we are concerned about the possible conduct of research on resources managed by the State without coordination or provisions for State participation. Climatic Changes, Page 4-G-4: This analysis seems far-fetched, e.g., "For example, based on current rates of greenhouse gas emissions, predicted temperature increases would shift thermal limits for sockeye salmon in the Bering Sea over the next half century." 43 PART TEN: ATTACHMENTS Attachment A Summary of Regulatory History: Commercial fisheries have not been prohibited since 1966. The proposed rule asserts that NPS prohibited commercial fishing in Glacier Bay by regulation in 1966, when it deleted a provision specifically authorizing commercial fishing in Glacier Bay National Monument. The State disagrees with NPS' conclusion, and requests that NPS acknowledge its history of accommodating commercial fisheries in Glacier Bay. The cited 1966 regulation did not affect Glacier Bay marine fisheries, because it only prohibited commercial fishing in fresh water. See 31 Fed. Reg. 1665 3 (December 29, 1966) (codified at 36 C.F.R. 2.130)(2) (1967)). Years later, in 1983, NPS agreed that its regulations were inconsistent by only prohibiting commercial fishing in fresh waters. 48 Fed. Reg. 30256 (June 30, 1983). NPS therefore revised its general regulations to expressly prohibit commercial fishing, except where specifically authorized. !d. at 30265, 30283 (codified at 36 C.F.R. § 2.3(d)(4)). However, NPS had already specifically recognized and authorized commercial fishing in Glacier Bay, and ANILCA had authorized the continuance of existing uses in 1980. There can be no question that NPS knew of and condoned ongoing commercial fishing in Glacier Bay after 1966 and after 1983. In 1980, for example, NPS adopted regulations pursuant to Endangered Species Act authority to protect endangered humpback whales. These regulations specifically recognized and validated commercial fisheries. See 45 Fed. Reg. 85741 (December 30, 1980) (restricting commercial operators from fishing for, or retaining if caught, species on which humpback whales feed); 45 Fed. Reg. 85480 (December 29, 1980) (proposing to restrict commercial harvest of Pacific herring and to prohibit bottom trawling in Glacier Bay to protect humpback whales). In 1983, NPS proposed closure of wilderness waters to commercial fishing and to prohibit trawling to protect whales, but did not seek to limit other fisheries. 48 Fed. Reg. 14978 (April6, 1983). NPS reaffirmed its approval of ongoing commercial fisheries in Glacier Bay's 1984 General Management Plan: Commercial fishing has been an activity of considerable economic importance in park and preserve waters in recent years. Cross Sound, Icy Strait, the outer coast (Gulf of Alaska), and the Dry Bay vicinity have been the most important areas. Glacier Bay proper, the park's principal visitor use area and the focus of most park visitor activities, is also considered an important fishing area that is used by commercial fishermen . . . . Traditional commercial fishing methods include trolling, long lining and pot fishing for crab, and seining (Excursion Inlet only) in park waters and setnet fishing in preserve waters (Dry Bay area) .... 44 The Alaska Department of Fish and Game will continue to regulate commercial fishing in Glacier Bay National Park and Preserve, which is consistent with ANILCA and state law. Traditional commercial fishing practices will continue to be allowed throughout most park and preserve waters. However, no new (nontraditional) fishery will be allowed by the National Park Service. Halibut and salmon fishing and crabbing will not be prohibited by the Park Service. Commercial fishing will be prohibited in wilderness waters in accordance with ANILCA and the Wilderness Act. Glacier Bay GMP, September 1984, at 51. NPS again acknowledged commercial fishing as an authorized activity in Glacier Bay in permanent humpback whale regulations. See 49 Fed. Reg. 15482 (April18, 1984) (proposed rule); 50 Fed. Reg. 19880 (May 10, 1985) (final rule) (codified at 36 C.F.R. § 13.65). Among other things, these regulations expressly exempted from the motor vessel permit requirement commercial fishing vessels "engaged in commercia/fishing within Glacier Bay, provided that commercial fishing vessel use levels remain at or below their 1976 use levels." 36 C.F.R. § 13.65(b)(3)(iii)(A) (1995). The vessel operating restrictions also exempted commercial fishing vessels "actively trolling or being used to set or pull long lines." 36 C.F.R. § 13.65(b)(4) (1995). When NPS intended to restrict particular commercial fisheries or gear types in Glacier Bay to protect endangered whales, it did so by adopting regulations specifically prohibiting only those fisheries or gear types. See 36 C.F.R. § 13.65(b)(5) (prohibiting fishing for or retaining if caught, herring, capeline, sandlance, euphausids or shrimp); 36 C.F.R. § 13.65(b)(6) (prohibiting trawling in Glacier Bay). These regulations remained unchanged until 1996 when NPS adopted insignificant changes to several sections referencing commercial fishing vessels. These revisions were never noted or addressed in the Park Service's Federal Register publications, in which NPS assured the public that its 1996 actions did not affect commercial fishing. NPS stated its intent to address commercial fishing issues in separate rulemaking and affirmed that "this rule continues the exemption that commercial fishing vessels actually engaged in commercial fishing have from the seasonal entry and daily use limits that apply to other vessel types." 61 Fed. Reg. 27008,27013,27015 (May 30, 1996). The express authorization of commercial fishing in NPS park-specific regulations, coupled with its history of recognizing and assuring continuation of commercial fishing in this area, expressly exempts these fisheries from NPS general regulations prohibiting commercial fishing in national park units. These circumstances hardly support NPS' claim that it prohibited all commercial fishing in Glacier Bay in 1966, or that "no action" requires immediate closure of all fisheries. To the contrary, these regulations reflect NPS' specific recognition and authorization of these fisheries in Glacier Bay. NPS' acknowledgment of this error would be appropriate and appreciated by individuals unfairly characterized in the proposed rule as fishing unlawfully. 45 Attachment B State of Alaska Conservation Strategies Examples of the State's multifaceted conservation strategies are provided below to clarify misconceptions about the State's management system found throughout the proposed rule and EA. These are derived from numerous publications and ADF &G' s Home Page at <www.state.ak..us/local/ak.pages/FISH.GAME/adfghome.htm> Alaska's Conservation Mandate-Successful Salmon Management in Law and in Practice: Conservation of salmon stocks is required under the Alaska state constitution. Alaska's constitution, unique among the 50 states, has an Article solely devoted to the management and utilization of natural resources. The constitution mandates at renewable resources "shall be utilized, developed and maintained on the sustained yield principle." With Statehood, the Alaska Department of Fish and Game was formed. Alaska law states: "The Commissioner shall manage, protect, maintain, improve, and extend the fish, game and aquatic plant resources of the state in the interest of the economy and general well-being ofthe state." To ensure the sustained yield of salmon stocks which is constitutionally and statutorily mandated, the Alaska Department of Fish and Game manages salmon fisheries, while the Alaska Board of Fisheries is given the responsibility for allocating the yield of salmon among users. This clear separation of management authority from allocation authority is one of the strengths of the Alaska management system. Alaska's Environmental Record-Protecting Salmon Habitat: Alaska has always made a strong commitment to conserving and protecting important salmon habitat. Alaska has strict regulations governing development activities to protect vital spawning and rearing salmon streams. Water discharges, such as sewage and other potential pollutants, are closely regulated to ensure high water quality. Alaska has been willing to forego the economic benefits from other activities such as large-scale hydropower developments proposed and denied in order to sustain salmon resources for future generations. As an example, no mining or oil leasing permits have been issued in the vicinity of Glacier Bay park despite the state's claim of ownership of the submerged lands, in part to recognize the special values of the area. Alaska's Science-Based Management-Letting the Managers Manage: With the constitutional and statutory mandates to conserve, the Alaska Department ofFish and Game has effectively managed Alaska's Pacific Salmon stocks to ensure conservation and to promote production. As a result, stocks of salmon spawning in Alaska are generally healthy, and fisheries dependent upon these stocks have benefited, with statewide harvests ranging from about 100 to 200 million salmon per year over the past 15 years. In 1959 at the time of statehood, statewide harvests totaled only about 25 million salmon-a level equivalent to less than 20 percent of current sustained production. State of Alaska management is intensive, conducted on a real-time basis with regulations implemented by local area biologists in- season, with a clear legal mandate and delegated authority. Delegated emergency authority (openings and closings on extremely short notice, not an "emergency" per se) provides for 46 immediate conservation by area biologists. Salmon managers open and close fisheries on a daily or even hourly basis to ensure that adequate spawning escapements are achieved. When runs are strong, managers liberalize harvest regulations to utilize surpluses. When runs are poor, managers close fisheries to provide for predetermined escapement needs and hence ensure long-term sustainable yields. Thus, even though low salmon returns may occur in some areas of the state, causing economic hardship in communities, the fisheries closures in- season by local biologists with delegated regulatory authority continue to ensure sustained yields for future years as a key ingredient of the State's successful salmon management. Alaska's Record under the Pacific Salmon Treatv: Alaska has worked hard in the Pacific Salmon Commission to conserve chinook salmon. Alaska began a chinook rebuilding program several years before the Pacific Salmon Treaty was signed. To address the need for a scientifically-based, long-term management regime for chinook salmon stocks, the U.S. Section of the Pacific Salmon Commission, including the states of Alaska, Washington, Oregon and the Pacific Northwest Treaty Tribes developed a comprehensive long-term approach for the Southeast Alaska chinook fishery. This approach for the Alaska fishery was adopted by agreement of the U.S. Section in June 1996. It is responsive to changes in chinook abundance and represents a significant technical and policy advancement in chinook salmon management. The abundance-based approach incorporates an in-season assessment program to determine run strength so that necessary adjustments to harvest levels, either up or down, can be accomplished. The approach provides for the conservation and fair sharing of the harvests. This recently adopted agreement also promotes sustainable yields and prevents over fishing. In addition, it provides for the establishment of improved biologically- based escapement or spawning goals for individual stocks. Alaska has successfully used abundance-based management for 30 years in order to rebuild its salmon stocks from the low levels due to adverse environmental conditions and over fishing under federal management which Alaska inherited at statehood. The approach adopted under the Treaty will continue Alaska's role in sustaining naturally spawning chinook stocks at healthy levels. 47 -. Attachment C Table 1: Impacts of Statutory Changes in 1998 Act in Glacier Bay National Park Impacts of Statutatory Changes-Glacier Bay National Park 1998 Fishery Salmon King Coho Chum Pink Longline Halibut Black Cod Rock Fish Pacific Cod Food Bait Crab Dungeness Tanner King Shrimp Herring Whale prey species Scallops Developing Fisheries Clams Sea Urchins, Sea East & West Arm, King Troll only, Winter Summer Closure TBD-lncidental NA NA Immediate closure NA Immediate closure Immediate closure NA Immediate closure Immediate closure Previously closed Previously closed Previously closed NA NA Giac1er Bay Proper Hugh Miller, John Hopkins, Tarr Beardslee Skidmore, Adams Inlet, Reid Inlet Wilderness Wilderness Geikie Inlet Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure NA NA Immediate Closure Immediate Closure NA Immediate Closure NA Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Previously closed Previously closed Previously closed Previously closed Previously closed Prev1ously closed Previously closed Previously closed NA NA Immediate Closure Immediate Closure Immediate Closure Immediate Closure Remainer of Glacier Bay Proper TBD TBD TBD-incidental TBD-incidental TBD NA TBD Immediate Closure Immediate Closure Immediate Closure Previously closed Previoulsy closed Previously closed NA Immediate Closure Cucumbers Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Immediate Closure Questions: (1) Incidental long line catch in GB Proper (2) Incidental troll catch of halibut in winter? (3) Closure in Bay Proper during primary vtsitor season? (4) TBD, To Be Determined: We assume incidental catch continues under state management for phase out fisheries. 48 Attachment D MASTER MEMORANDUM OF UNDERSTANDING BETWEEN THE ALASKA DEPARTMENT OF FISH AND GAME JUNEAU, ALASKA AND THE U.S. NATIONAL PARK SERVICE DEPARTMENT OF THE INTERIOR ANCHORAGE, ALASKA This Master Memorandum of Understanding between the State of Alaska, Department -of Fish and Game, hereinafter referred to as the Department, and the U.S. Department of the Interior, National Park Service, hereinafter referred to as the Service, reflects the general policy guidelines within which the two·agencies agree to operate. WHEREAS, the Department, under the Constitution, laws, and regulations of the State of Alaska, is responsible for the management, protection, maintenance, enhancement, rehabilitation, and extension of the fish and wildlife resources of the State on the sustained yield principle, subject to preferences among beneficial uses; and WHEREAS, the Service, by authority of the Constitution, laws of Congress, executive orders, and regulations of the U.S. Department of the Interior is responsible for the management of Service lands in Alaska and the conservation of resources on these lands, including conservation of healthy populations of fish and wildlife within National Preserves and natural and healthy populations within National Parks and Monuments; and WHEREAS, the Department and the Service share a mutual concern for fish and wildlife resources and their habitats and desire to develop and maintain a cooperative relationship which will be in the best interests of both parties, I. the fish and wildlife resources and their habitats, and produce the greatest public benefit; and WHEREAS, the Alaska National Interest Lands Conservation Act (ANILCA) and subsequent implementing Federal regulations recognize that the resources and uses of Service lands in Alaska are substantially different than those of similar lands in other states and mandate continued subsistence uses in desig- nated National Parks plus sport hunting and fishing, subsistence, and trapping uses in National Preserves under applicable State and Federal laws and regu- lations; and WHEREAS, the Department and the Service recognize the increasing need to coordinate resource planning and policy development; NOW, THEREFORE, the parties hereto d~ hereby agree as follows: THE DEPA ... t\TI!ENT OF :'ISH AND GAHE AGREES: l. To recognize the Service's responsibility to conserve fish and wildlife and their habitat and regulate human use on Service lands in Alaska, in accord- ance with the National Park Service Organic Act, ANILCA, and other applicable laws. 2. To manage fish and resident wildlife populations in their natural soecig~ ciiversitv on Service lands, re~ognizing that noncon~umntive ~s~ and appreciation by the visitiug public is a pr~ma=y consideration. 3. To consult with the Regional Director or his representative in a timely manner and comply with applicable Federal laws and regulations before embarking on management activities on Service lands. 4. To ac~ as the primary agency responsible for managemen~ of subsis~ence uses of fish and wildlife on State and Service lands, pursuant to appli- cable State and Federal laws. 5. To re~ognize that National Park areas were established, in part, to "assure con~inuation of the natural process of biological succession" and "to main- tain the environmental integ_rity of the natural features found in them." !HE NATIONAL PARK SERVICE AGREES: l. To recognize the Department as the agency ~th the primary responsibility to manage fish and resident vildlife within the State of Alaska. 2. !o recognize the right of the De~artment to enter onto Service lands after timely notification to conduct routine management activities which do not involve construction, disturbance to the land, or alterations of ecosystems. 3. To manage the fish and wildlife habitat on Service lands so as to ensure conservation of fish and wildlife populations and their habitats in their natural diversity. 4. To cooperate with the Oepartment in planning for management activities on Service lands which require permits, environmental assessmen~s, compatibilit: assessments, or similar regulatory documents by responding to the Department in a timely manner. 5. To consider carefully the impact on the State of Alaska of proposed treaties or international agreements relating to fish and wildlife resources which could diminish the jurisdictional authority of the State, and to consult freely with the State when such treaties or agreements have a significant impact on the State. ~~ !o review Service policies in consultation with the Depar~men~ to deter- mine if modified or special policies are needed for Alaska. 7. To adopt Park and Preserve·management plans whose provisions are in sub- stantial agreement with the Depar~ment's fish and wildlife management plans, unless such plans are determined formally to be incompatible with the purpose for which the respective Parks and }reserves were established. 8. !o utilize the State's regulatory process to the maximum ex~ent allowed by Federal law in developing new or modifying existing Federal regulations or proposing changes in existing State regulations governing or affecting the taking of fish and wildlife on Service lands in Alaska. 9. !o recognize the Department as the primary agency responsible for policy development and management direction relating to subsistence uses of fish and wildlife resources on State and Service lands, pursuant to applicable State and Federal laws. 10. !o consult and cooperate with the Depar~ment in the design and conduct of Service research or management studies per~aining to fish and wildlife. 11. !o consult with the Department prior to entering into any cooperative land management agreements. 12. !o allow under spec~al use permit the erection and maintenance of facilitie. qr structures needed to further fish and ~ldlife management activities of the Department on Service lands, provided their intended use is not in con- flict with the purposes for which affected Parks or Preserves were established. .. THE DEPARTMENT OF FISH AND GAME AND THE NATIONAL PARK SERVICE MUTUALLY AGREE: 1. To coordinate planning for management of fish and wildlife resources on Service lands so that conflicts arising from differing legal mandates, obJectives, and policies either do not arise or are mini~ize~. 2. To consult with each other when developing policy, legislation, and regula- tions which affect the attainment of wildlife resource management goals and objectives of the othe~ agency. 3. To provide to each other upon.request fish and wildlife data, information, and recommendations for consideration in the formulation of policies, plans, and management programs regarding fish and wildlife resources on Service lands. 4. To recognize that the taking of fish and wildlife by hunting, trapping, or fishing on certain Service lands in Alaska is auchorized in accordance with applicable State and Federal law unless State regulations are found to be incompatible with documented Park or Preserve goals. objectives or manage- ment plans. 5. To recognize for maintenance, rehabilitation, and enhancement purposes, that under extraordinary circumstances the manipulation of habitat or animal populationS may be an important tool of fish and wildlife manageme.nt to be used cooperatively on Service lands and waters in Alaska by the Service or the Department when judged by the Service, on a case by case basis, to be consistent with applicable law and Park Service policy. 6. That imolementation by the Secretary of the Interior of subsistence program recommendations developed by Park and Park Monument Subsistence Resource .. , Commissions pursuant to ANILCA Section 808(b) will take_into ~~count exist- ing S~~s and will use the State's regulatory pro~ss as the primary means of developing Park sub~isr.ence ~se regulations. 7. To neither make nor sanction any introduction or transplant of any fish or wildlife species on Service lands without first consulting with the other party and complying with applicable Federal and State laws and regulations. 8. To cooperate in the development of fire management plans which may include establishment of priorities for the control of wildfires and use of prescribed fires. 9. To consult on studies for additional wilderness designations and in develop- ment of regulations for management of wilderness areas on Service lands. 10. To resolve, at field office levels, all disagreements pertaining to the cooperative work of the two agencies which arise in the field and to refer all matters of disagreement that cannot be resolved at equivalent :ield leve~~ to the Regional Director and to the Commissioner for resolution before either agency expresses its position in public. 11. To meet annually to discuss matters relating to the management of fish and wildlife resources on, or affected by, Service lands. 12. To develop such supplemental memoranda of understanding between :he Commis- sioner and the Regional Director as may be required to implement the policies contained herein. 13. That the Master Memorandum of Understanding is subject to the availability of appropriated State and Federal funds. 14. That this Master Memorandum of Understanding establishes procedural guide- lines by which the parties shall cooperate, but does not create legally enforceable obligations or rights. 15. That this Master .Memorandum of Understanding shall become effective when signed by the Commissioner of the Alaska Department of Fish and Game and the Alaska Regional Director of the National Park Service and shall continue in force until terminated by either party by providing notice in writing 120 days in advance of the intended date of termination. 16. That amendments to this Master Memorandum of Understanding may be proposed by either party and shall become effective upon approval by both parties. STATE OF ALASKA. U.S. DEPARTMENT OF THE INTERIOR Department of Fish and Game National Park Service By~~og~}~ Commissioner B::rr·if-:rc JOhn E. Cook Regional Director, Alaska Date //-0~ [qf?- ----~~~~~~--------------Date Oc..4Jo4'r $1 l ~ Sl- 7 .. Attachment E Partial list of State management plans, policies, and reports that guide management of commercial fishing in the vicinity of Glacier Bay National Park • 5 AAC 38.076 Alaska Scallop Fishery Management Plan • 5AAC 38.140. Southeastern Alaska Sea Cucumber Management Plan • 5 AAC 38.145 Southeastern Alaska Red Sea Urchin Management Plan • Management Plan for the Spring Commercial Troll Fishery in SE Alaska, 1998 • Southeast Alaska Purse Seine Fi~hery 1998 Management Plan • 5 AAC 39.210 Management Plan for High Impact Emerging Fisheries • 5 AAC 39.220 Policy for the Management of Mixed Stock Salmon Fisheries - • Sablefish, Anoplopoma fimbria, Stock Assessment in the Inside Waters of Southeast Alaska, NOAA Technical Report NMFS 130 • Alaska Commercial Salmon Trolling Regulatory Guide, Winter 1999 (adopted October 1998) • Yakutat Set Gillnet Fishery 1998 Management Plan • ~anagement Plan for Chinook and Coho Salmon in the Southeast AlaskaN akutat Summer Troll Fishery 1998 • Northern Southeast Inside (Chatham Strait) Relative Abundance Longline Survey Cruise Report August 1997 • Alaska Commercial Salmon Trolling Regulatory Guide, Summer 1998 • Summary of Changes in the Demersal Shelf Rockfish Stock Assessment ( 11-98) • State of Alaska Groundfish Fisheries Associated Investigations in 1997 May 1998 • Southeast Alaska-Yakutat Salmon Troll Fisheries including Chinook and Coho Salmon Stock and Escapement Assessments, 1996 by Gaudet & Stopha Jan 97 • Draft Proposed Interim Management Plan for Commercial Lingcod Fisheries in Southeast Alaska, Regional Information Report 1993 • Groundfish Fisheries Southeast Alaska-Yakutat Region 1995 Report to the Board of Fisheries 51 .. •• Attachment F DRAFT . -·-------------·---------·---... ·····------· ·-----·-----··· .. ·----- ------+-----------T-A:BL-E-IU-~--------------- Alaska Commercial Fishing Permits Reporting Landings by Spcci~ Foa·Icy Strait Communities, 1995 COMMUNITY 199;0 Population 199~ Persons Fisbing Pc~mits Corp. Fis~!Population ' Permits/Fisherman SALMON Subtotal salmon (%) permits HALIBUT·.·· Su*otal halibut(%) permits ' Elfin Cove 57 27 .47 1.67 23 (SO%) lS (33%) Gustavus 258 21 .08 1.67 12 (34%)) Hoonah 795 75 .09 1.79 61 (45.5%) 44 (32.8%) Pelican 222 50 . .23 .1.9 37 (39%) SJ\)3LEFISH 4 (8.7%) 3 (8.6%) ....... _1.5 (11.2%) . 17 (18%) . CRAB J?ungeness Tanner ~ing Sub,total_crab (%) pc~its SH~P ' ROCKFISII·. ' TO';fAL PERIYIITS · FO~ SEij,ECTED ·SP~ClES· · : i ' 1 6 0 5 0 0 1 (2.2%) 11 (31.4%) 2 (4.4%) 1 (2.9%) 0 0 45 35 ,__ __ ....,.S.K;ouM.!~ ...... tc.~Co.mm.c.rcial Fisheries Entry Commission 2 6 3 . 11_ (~.2%) 3 (02%) 0 134 ------i---·---·-........ --·--· .... -.. ·---........ ·--· --.......... ----.. --.. -.--. .. -... ·-. ! .-.--i--... --··· -··-- · ........ . 2 1. 0 3 (03%) 3 (03%) o. 95 -·.-.:·.=--:-!:.···--··-: .-: -----:-···-. DRAFT Table 111·3 Distribution of Alaska Commercial Fishing Permits by Permit Type in Icy Strait Communities, _1996 ' COMMUNITY 1990 ~l'npull!-tinn 1996 1'atal rc.~mi!.i Pcnn!ta per Resident l'cnnjLs per Ilold;r SAUr10N Httnd troll ! halibut i mise:. nsh Po.\vcr 11011 Pu'nrc: rcinc Drift ;illnct (SH) Subt~tal salmon (%) HAilBllT -::: s: ton:r, longlinc > s: tnnR, lnnr;linc ~isc. l'isb, lnn;llnc M"l111nlcal Jls . Subtotal halibut (%) SABj.m=tSH CRAB DUngcncss ~ S tons, poll ;::i. 5 tons, pots TR~ncr ~ 5 tons, pol5 ~ S tons, pots ~ingnct.t Kip& SubtCiial crab(%) SHRTMP RO~l"'~1-I OTHP.R mnncovo 51 396 6.9 2.69 80 13 10 GO 0 I 164 63 J(j 28 8 135 22 IS 3 2 0 2 I (4 1.4%) (34%) (5.6%) 23 (~.8%) 9 (2.2%) 9 (2.2%) 3<1 (3.6%) CiUSliiYU' 258 350 1.4 2.99 55 25 I 24 1 2 108 (30.!1%) 52 2) 18 10 I 03 (29.4"til~ 14 (4%) I I 30 9 0 16 0 66 (19%) 10 (2.9%) 4 (t.l%) 4S (12.9%) Source: Commercial Fisheries Entry Commi~sion i ., . lioonah 195 930 1.2 2.67 275 7 31 69 29 4 (2) 4IS (47%) IR7 68 41 IS 311 (3S%) 39 (4,o4%) 5 17 7 4 12 16 61 (6.9%). 18 (02%) 17;(02%) 69 {7.5%) Pclic::un 830 4.0 3.47 102. so 8 109 I 10 (8) 2110" (32%) 113 101 Gl 36 2u (32~o) . 87 (l~1o) 26 7 6 l 2 13 56 (06%) JS (04%) (I otter trllwl) 25 (2.8%). Sl'i (l'i.l%) .,, . --··--.:·-···-·-----------··-·· --· ---.. ·-·-· .... ······-.... ··--··----·----------------··-·--·-··. ----···-.. ; • DRAFT Table Ill-4 Alaska Commercial Fishing Earnings for Icy Strait Communities, ~YEAR/ EARNINGS (thousands) ·:· 73 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 Elfin Cove $758.90 $534.60 $664.40 $57L90 $633.60 $807.20 $728.90 $740.90 $780.70 $837.80 $934.50 1975-1995 COMMUNITY Gustavus $120.90 $237.60 $337.90 $331.10 $571.10 $553.30 $543.80 $772.10 $630.80 $803.20 $1,083 .. ~0 $849.00 Hoonah $588.50 $2,182.10 $2,383.30 $2,643.20 $2,403.50 $2,727.40 $3,208.90 $3,658.10. $3,420.70 $3,263.50 $4,742.40 $2,649.90 Pelican $249.50 $768.80 $1,180.70 $2,175.80 $2,596.40 $1,805.50 $2,236.60 $3,215.90 '52,1~7.40 $2,595.20 $2,774.50 $3,816.80 $3,983.40 $3,096.00 $2,767.00 $2,871.00 $3,861.60 S3,001.50 Note: Empty cells indicate data suppression due to Alaska.statutes on confidentiality. So~rc~: Commercial Fisheries Entry Commission ' ' I· .. - ----· ----! - , ""'""'"~''''111111 7;···1 --•r--;;:;-;-;---------- • • -c:: = ... l'.EllMITS AND EARNINGS BY ALL FISHERMEN e l() WITH LANDINGS FROM ~ GLACIER BAY .NATIONAL PARK DISTRlCfS, -,.Q 19!14 = ~ (ln OIOulandl or dollan) TOTAL TOTAL TOTAl TOTAL TOTAL TOTAL PERMIT/EARN PERMITIEARN PERMIT/EARN PERMIT/EARN PERMIT/EARN PERMIT/EARN FROMGB FROMGB FROMGB FROM OUTER FROM CROSS FROM DISTRICTS DISTRICTS DISTRICTS COAST SOUND/ GLACIER BAY PLUS ALL PLUS OTHER ICY STRAIT PROPER OTHER SE - ALL FISHERS 810 810 484 258 243 67 $87,633.1 $58,849.7 $8,817.3 $5,389.5 $2,117.4 $1,250.3 ' SEAK 651 851 372 182 216 64 FISHERS $12,528.8 $47,012.4 $7,023.4 $3,903.8 $1,917.0 $1,202.8 local 171 171 109 47 72 23 $10,348.3 $9,923.5 $2,067.2 $1,072.8 $627.5 $368.9 OtherSE 480 480 283 135 144 31 $42,180.3 $42,180.3 $4,958.2 $2,830.8 $1,289.8 $836.8 OTHERAK 31 31 21 18 6 1 FISHERS $3.867.5 $9867.8 $485.3 $408.1 $37.8 NA NON-AK 1ZB 128 71 !8 22 2 FISHERS $11,149.3 $11,149.3 $1,328.8 $1,051.8 $242.1 NA -. • :; . ~ .. ' .. .,. ..... ~ Z' ~ = -~ -I.e ~ -,.Q = ~ ·". • ALL FISHERS SE AK FISHERS local OtherSE OTHERAK FISHERS NON-AK FISHERS PERMITS AND EARNINGS BY ALL FISHERMEN WITH LANDINGS FROM GLACIER BAY NAUONAL PARK DISTRICTS, 1995 {in tbOUJARdl of dollars) TOTAl TOTAL TOTAL TOTAL PERMIT/EARN PERMIT/EARN PERMIT/EARN PERWT/EARN FROMGB FROMGB FROMGB FROM OUTER DISTRICTS DISTRICTS DISTR1CTS COAST PLUS ALL PLUS OTHER OTHER SE 836 836 !56 381 $28,508.7 $23,411.5 $4,041.& $1,040.6 820 820 423 268 $19,821.3 $18.033.0 $3.082.7 $284.2 158 118 110 89 $2.764.3 $2,874.1 $768.1 INC 484 464 313 201 $17,077.4 $15.358.9 $2,314.8 $238.8 32 32 24 19 $1,883.5 $986.1 $219.8 $212.3 184 114 108 84 $5,134.0 $4,393.4 $747.0 P84.1 TOTAL TOTAL PERMIT/EARN PERMIT/EARN FROM CROSS FROM SOUND/ GLACIER BAY ICY STRAIT PROPER 253 82 $1,887.8 $1,321.1 221 77 $1,568.5 $1,2!0.1 84 24 $608.1 $234.3 137 53 $1,080.3 $1,01&.8 19 1 $212.3 NA 94 4 $584.1 NA • Attachment G Social and Economic Profiles of Selected Communities There are no areas in the continental U.S. and few areas in Alaska that depend more on commercial fishing as a mainstay of the economy than the immediate communities surrounding Glacier Bay. The State of Alaska, Department of Community and Regional Affairs publishes social and economic profiles of small and large communities. The descriptions provided by regional community development specialists emphasize the magnitude of fishing and seafood processing to the local economy. It appears, however, that NPS did not reference this info in the EA. Pelican (Current Population 149) Commercial fishing and seafood processing are the mainstays of Pelican's economy. Commercial fishing permits are held by 4 7 residents. Most employment occurs at Pelican Seafoods, which also owns the electric utility, a fuel company and store. In April 1989, Pelican Seafoods was purchased by Kaioh Suisan, a Japanese firm. In February 1996, the plant was closed. It was subsequently purchased by Kake Tribal Corp. and re-opened during the summer of 1996, employing over 60 persons during the peak season. The plant processes salmon, halibut, sable fish, rockfish, and Dungeness crab. Hoonah (Current Population 896) Fishing is a mainstay of the economy, and Hoonah experiences nearly full employment during the summer season. Commercial fishing permits are held by 126 residents. Fish processing at Excursion Inlet Packing Co., employment at the Thompson Cold Storage plant, logging for Sealaska Corp., and logging-related activities provide local employment. The Huna Totem Corp. owns a sort yard and timber transfer facility. Subsistence activities are important component of the lifestyle. Salmon, halibut, shellfish, deer, waterfowl and berries are harvested. Elfin Cove (Current Population 50) Residents of Elfin Cove participate in commercial fishing, sport fishing and tourism-related services such as fishing charters. Commercial fishing permits are held by 3 7 residents. The local school, services and retail businesses also provide employment. Petersburg (Current Population 3,398) Since its beginning, Petersburg's economy has been based on commercial fishing and timber harvests. Petersburg currently is one of the top-ranking ports in the U.S. for the quality and value offish landed. Commercial fishing permits are held by 483 residents. Unlike the rest of Southeast, it has escaped the marked cycles of boom-and-bust. Several processors operate cold storage, canneries and custom packing services, employing over 1,100 people during the peak season. The state runs the Crystal Lake Hatchery that contributes to the local salmon resource, and the U.S. Forest Service operates a tree nursery. Residents include salmon, halibut, shrimp and crab in their diet. It is the supply and service center for many area logging camps. 53 Independent sportsmen and tourists utilize the local charter boats and lodges, but there is no deep water dock suitable for cruise ships. Sitka (Current Population 8,779) The economy is diversified with fishing, fish processing, tourism, government, transportation, retail, and health care services. Sitka is a port of call for many cruise ships each summer; the City expects to welcome 176,000 passengers during 1998. Commercial fishing permits are held by 572 residents, and fish processing provides seasonal employment. Regional health care services provide approximately 675 jobs. The U.S. Forest Service and U.S. Coast Guard are significant federal employers. The Alaska Pulp Corporation, the major employer in Sitka, closed in September 1993, forcing nearly 400 persons into unemployment. However, Sitka's abundant resources and diverse economy have enabled the community to recover. Gustavus (Current Population 368) Gustavus has a seasonal economy; the lodge and park, located northwest of Gustavus, attract a number of tourists and recreation enthusiasts during summer months. Some commercial fishing occurs; 3 8 residents hold commercial fishing permits. The lodge, airport, school, small businesses, and the Park Service offer employment. Gardening is a prevalent local activity. Juneau (Current Population 30,684) The State, City & Borough of Juneau, and federal agencies provide nearly 45% of the employment in the community. Juneau is home to State Legislators and their staff during the legislative session between January and May. Tourism is a significant contributor to the private sector economy during the summer months, providing a $130 million income and nearly 2,000 jobs. Over 560,000 visitors are expected to arrive during 1998 from 550 cruise ship dockings. The Mendenhall Glacier, Juneau Icefield air tours, Tracy Arm Fjord Glacier, and the new Mount Roberts Tram are local attractions. Support services for logging and fish processing contribute to the economy. Commercial fishing permits are held by 549 residents. The state operates a hatchery which increases the local salmon population, and cold storage facilities process over 2 million pounds of seafood yearly. The Kensington Gold Mine is currently undergoing the permitting and development process. 54 February 1, 1999 Tomie Lee Superintendent Office of Advocacy Office of Interagency Affairs Glacier Bay National Park and Preserve P.O. Box 140 Gustavus, Alaska 99826 Facsimile: (907) 697-2654 Re: Glacier Bay National Park, Alaska : Commercial Fishing Regulations(PDF File) Dear Ms. Lee : The Office of Advocacy of the U.S . Small Business Administration (SBA) was established by Congress under Pub. L. No. 94-305 to advocate the views of small business before federal agencies and Congress. Advocacy is also required by §612 of the Regulatory Flexibility Act (RFA) (5 U.S.C . 601-612) to monitor agency compliance with the RFA. On March 28 , 1996, President Clinton signed the Small Business Regulatory Enforcement Fairr:tess Act which made a number of significant changes to the Regulatory Flexibility Act, the most sigQificant being provisions to allow judicial review of agencies' regulatory flexibility analyses. On April16 , 1997, the National Park Service (NPS) published for public comment a proposed regulation on Glacier Bay National Park, Alaska ; Commercial Fishing Regulations, Federal Register, Vol. 62, No. 73, p.18547. The purpose of the proposed rule is to prohibit commercial fishing in nonwilderness waters of Glacier Bay proper. NPS contends that the prohibition is necessary to "conserve the scenery and the natural and histo ric objects and wilalife therein". The proposal provides a seasonal exemption from that prohibit ion for 15 years for fishermen who demonstrate a reasonable history of participation in a specific Glacier Bay fishery. ld . at 18550. NPS contends that this action· is necessary to bring Glacie r Bay into conformance with the general policy and rule applicab le to units of the National Park System and the underlying objectives of the establishment of Glacier Bay National Pa rk. ld. Potential Impact of the Rule The proposal will affect all fishers in the Glacier Bay area. Although some of the fishers will be eligible for a fifteen year exemption from the prohibition , the exemption is only available to owners of valid fishing permits who can demonstrate a history of consistent participation in the Glacier Bay fishery for which the exemption is sought. Commercial fisheries eligible for the exemption include trolling for salmon; long lining for halibut; and pot or ring net fishing for Dungeness and tanner crab . While NPS indicates that these fishers will be affected by the proposal, the proposal is devoid of any economic information or information regarding the number of fishers that may not qualify for the exemption. Although the proposal only refers to the effects on fishers, other industries may also be directly affected by the proposal. According to the Alaska Department of Fish and Game, Division of Commercial Fishing, there are several seafood processors that process seafood from the Glacier Bay area. Some of those processors have reported that they will not be able to continue operating if the proposed rule is finalized.(1) In addition, approximately one fourth of the vessel owners are not permit holders. Instead of fishing, they obtain income from leasing their vessels or through catch share agreements.(2) Needless to" say, since these businesses are not mentioned in the proposal at all, there is no information regarding the economic impact of the proposal on those businesses. The Office of Advocacy submits that the Federal Register notice is inadequate for RFA purposes. The Federal Register notice needs to contain an explanation of the activities that will be affected by the agency's actions, as well as the economic implications for those business entities. This is necessary to elicit informed comments on the proposal. NPS has a statutory obligation to do an economic analysis, as the following will explain. Regulatory Flexibility Act Requirements The RFA requires administrative agencies to consider the effect of their actions on small entities, including small businesses, small non-profit enterprises, and small local governments. See 5 U.S.C. §§ 601, et. seq.; Northwest Mining Association v .. Babbitt, 5 F. Supp. 2d 9. When an agency issues a rulemaking proposal, the RFA requires the agency to "prepare and make available for public comment an initial regulatory flexibility analysis" which will "describe the impact of the proposed rule on small entities." 5 U.S.C. § 603(a); I d .. Initial Regulatory Flexibility Analysis \ If the proposed rule is expected to have a significant economic impact on a substantial number of small businesses, an initial regulatory flexibility analysis (IRFA) must be prepared and published with the proposed rule. The required IRFA is prepared in order to ensure that the agency has considered all reasonable regulatory alternatives that would meet the agency's policy objectives but minimize the rule' s economic impact on affected small entities. In accordance with Section 603(b) of the RFA, each IRFA must address the reasons that an agency is-·~.onsidering the action; the objectives and legal basis of the rule; the type and number of small entities to which the rule will apply; the projected reporting, record keeping, and other compliance requirements of the proposed rule; and all federal rules that may duplicate, overlap or conflict with the proposed rule. Certification Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing aniRFA, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. If th.e head of the agency makes such a certification, the agency shall publish such a certification in)he Federal Register at the time of the publication of the general notice of proposed rulemakin'g.for the rule along with a statement providing the factual basis for the certification. (Emphasis added) I d. RFA Non-Compliance in Proposed Rulemakings NPS's Certification Does Not Comply with the Requirements of the RFA In the above referenced proposal, the NPS did not prepare an IRFA. Instead, it opted to certify the proposal. The certification states: "The Department of Interior determined that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The revision mainly clarifies previously existing statutory and regulatory prohibitions. The expected redistribution of commercial fishing efforts to areas outside of the parks not expected to significantly effect a substantial number of small businessman." The Office of Advocacy asserts that the proposal and certification are absurd. This proposal that purportedly preserves the natural beauty of the area only prohibits one type of activity-fishing. From the proposal, there is no indication that other types of activities such as cruising or .. ---··· . --·-·-··-. I recreational touri~g will be affected or eliminated to preserve the "natural beauty" of Glacier Bay. If the intent is to preserve the environment and to create an area where fish and animals are allowed to roam·freely, why are the prohibitions limited only to the fishing industry. · The Office of Advocacy further contends that the certification does not meet the requirements of the RFA that a certification contain a factual basis. The certification simply contains statements of opinion that are not supported by any "facts" or economic data in the certification or the preamble of the proposal. Although the certification states that this proposed rule merely clarifies the existing statutory law, the preamble states that in Alaska Wildlife Alliance v. Jensen a court found that "there is no statutory ban on commercial fishing in Glacier Bay National Park ... ".ld. It is totally nonsensical to state that the proposal merely clarifies existing law when a court has found . that no such law exists. To place a ban on commercial fishing after a court has found.that there is not statutory ban is not a clarification of the law. If anything, it is a misstatement of the law. (3) Furthermore, there is no evidence that the redistribution of the commercial fishing efforts to areas outside of the parks will not have a significant effect on a substantial number of small businesses. As a practical matter, it should be fairly obvious that fishing outside of the park will cause the , fishers to incur additional costs. For example, the vessels may need to travel farther to fish. The fishers will incur additional costs through gas, repairs and wear and tear on the vessels. . Moreover, there is no indication that the catch potential is similar outside of the Glacier Bay area. There was no economic evidence to support NPS' allegation of no significant economic impact anywhere in the certification or the preamble of the proposal. Such an absence of information violates the intent and purpose of the RFA Without economic informatiqn, the public cannot determine fully the economic impact of a proposal anct provide the agency with meaningful comments. NPS Should Have Prepared an IRFA Although there was no economic information in the April17, 1997 proposai,.NPS did provide some economic information in its environmental assessment that it made available to the public in April 1998, one year after the Notice of Proposed Rulemaking. The Office of Advocacy's Office of Economic Research reviewed the data found in the environmental assessment. David Schnare, Ph.D. found that the proposal will have a sjgnificant economic impact on a substantial number of small entities. In short, Dr. Schnare found that: · " Based on review of the NPS "Commercial Fishing Environmental Assessmentrr (April 1998) (hereinafter "the EA") and the various notices of proposed rulemaking and requests for comment, the NPS' data clearly demonstrate the proposed rule does impose a significant impact on a substantial number of small .eintities, contrary to the NPS certification ... " (See attachment A) The RFA requires an age~~~~~d prepare an IRFA when the agency's actions are expected to have a significant economic impact on a substantial number of small entities. The information elicited from NPS's environmental assessment indicates that the proposal will have such an impact. Accordingly, a certification is improper for this proposal. NPS must prepare an IRFA if it intends to abide by the requirements of the RFA · The Proposal Detrimental Effects on Small Communities is Reasonably Foreseeable In addition to the effect of the proposal on small businesses, the Office of Advocacy is also concerned about the effect of the proposal on small communities. The RFA clearly states that a small entity "shall have the same meaning as the terms 'small business', 'small organization', and 'small governmental jurisdiction'." 5 U.S.C. §601 (6). A "small governmental. jurisdiction" is defined as governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand. 5 U.S. C. §601 (5). In Alaska, all but three governmental jurisdictions qualify as small entities. The Alaska Department of Fish and Game, Division of Fishing, estimates that at least three of these communities, Elfin Cove, Hoonah, and Pelican, may be detrimentally affected by the proposal. These communities of approximately 150-350 people are highly dependent on the fishing industry. In that the State of Alaska taxes are directly tied into seafood landings, the tax bases for those communities will be reduced significantly.(4) Because of the heavy reliance on fishing, NPS should consider the economic impact on the communities of this regulation in performing an IRFA. and in considering alternatives to this action. . Conclusion Because of the potentially severe economic implications that the proposed rule may have on small entities, it is incumbent upon the NPS to comply with the requirements of the RFA Failure to do so may lead to judicial review of the agency' s. actions. Republishing the rule with the proper RFA information is necessary to rectify NPS's egregious noncompliance. The Office of Advocacy recognizes the importance of protecting the environment and preserving the natural beauty of the area. However, N PS is proposing an action that will totally eliminate pn activity that is crucial to the economic viability of the Glacier Bay area. Fishing has been a ' mainstay activity for the Glacier Bay area for decades. Before an agency enacts a prohibition, ·whether it is immediate or within fifteen years, the agency should provide an economic analysis~ for its actions. The requirements of the RFA are not intended to prevent an agency from fulfilling its statutory mandate. Rather it is int~nded to assure that the economic impacts are fairly weighed in the regulatory decision making process. '.., \ The public has an .interest in knowing the potential e~r:Jomic impact of ~\particular proposed regulation. As the court stated when remanding a rule to the agency in Northwest Mining v. Babbitt, "While recognizing the public interest in preserving the environment, the Court also recognizes the public interest in preserving the rights of parties which are affected by government regulation to be adequately informed when their interests are at stake and::to,.participate in the regulatory process as directed by Congress."Supra. at 13: ··-;_ ·. If you would like to discuss this matter or if this office can be of any further assistance, pleas~ contact Jennifer A Smith, Assistant Chief Counsel for Economic Regulation. She may be reached either by mail at the above address or by telephone at (202) 205-6943. Thank you for your attention to this matter. Sincerely, Jere W. Glover Chief Counsel Office of Advocacy Jennifer A Smith Assistant Chief Counsel for Economic Regulation ENDNOTES 1. February 1, 1999, Conference call with Jeff Hartman, Alaska Department of Fish and Game, Division of Commercial Fishing. 2.1d. · 3. The Office of Advocacy recognizes the fact that Section 123 of the Omnibus Consolidated and Emergency .Supplemental Appropriations Act of FY 1999establishes statutory requirements for the management of commercial fishing in Glacier Bay National Park. However, this provision was not signed into law until October 21, 1998, approximately 18 months after the date of the proposal. The fact that a law subsequently went into effect does not cure the defective certification. If anything, the change in the law should necessitate the reproposal of the rule. 4 .. Febniary1-~ 1999;·canferenciica1fwlth Jeff Hartman, AlaskaDepa-rtmerit ot"Ffsil and Game- Division of Commercial Fishing. · ' FW: macier Bay update Subject: FW: Glacier Bay update Date: Thu Jan 14 10:14:00 1999 From: tinacl@fishgame.state.ak.us (Cunning; Tina) To: sally_gibert@gov.state.ak.us, Kathryn_Swiderski@law.state.ak.us Sally and Kathy: One of the things Rob said but didn't reflect in this meeting notes was he felt addressing the eligibility issue should be 90% of the comments and the rest of what maybe should be addressed could probably be deleted of the final comments. Jeff explained to Rob the significance of covering the other NEPA, RFA, socio-economic impacts, and jurisdictional issues which he sort of then concurred probably needed to be included. Rob got delayed in Juneau this AM so should have a faxed copy of the chapter 3 I sent over yesterday. I would appreciate it if he does not received any of our drafts on e-mail until we have something much better packaged. I think he occasionally forgets that there are additional state interests besides just ADF&Gs which need to be involved in the final comments. Tina From: Cunning, Tina Sent: Thursday, January 14, 1999 9:38 AM To: Bosworth, Robert Subject: RE: Glacier Bay update Rob: Since I'm the one that all the work falls to consolidate and articulate all the problems, impacts, data, and ideas related to drafting the department's comments on the rulemaking, EA, and future legislation, I really don't understand why you excluded me from this meeting. It would have been so helpful to hear the discussions. I've been working round the clock on this significant action on top of my regular duties, so find it discouraging that I have to second guess what you might want to emphasize when I could have gained it so much more readily being present. I do appreciate your sending out this documentation of the discussion. One point of clarification that I think we need to be very careful of is that the legislation calls for cooperating in the development of a management plan-not cooperative management. There are significant jurisdictional differences. I know you know that and suspect it is just a fault of how we articulate things more loosely on e-mail. Tina From: Bosworth, Robert Sent: Wednesday, January 13, 1999 4:34 PM To: Mecum, Doug D. Cc: Hartman, Jeff; Marshall, Scott; '"Kathryn Swiderski"'; Cunning, Tina; 'John Sisk (gov) '; 'Sally Rue'; 'Rue, Frank' Subject: Glacier Bay update This morning Frank, Jeff Hartman and I met with three of the Glacier Bay staff: Tommie Lee (Superintendent); Randy King (Chief Ranger/Asst. Superintendent); and Mary Beth Moss (Resource Management Chief). The purpose was to get an update from them and to discuss their proposed fishing regulations, which primarily will identify eligibility criteria for the "phase-out" fisheries in Glacier Bay proper. Timelines: Comments on the proposed regs are due Feb. 1. They hope to have final regs in place in April, and begin implementing in May. This would involve closing the closed areas and beginning the process of accepting applications for access permits. They expect to be issuing access permits to eligible fishermen by February of 2000. Update on the crab compensation process: They believe they will receive 1 of3 2/8/99 10:19 AM FW: Glacier Bay update , 2 of3 7 applications for compensation from dungeness crabbers. These are due Feb 1. After determining who is eligible (based on criteria in the Glacier Bay legislation) they will discuss with individual crabbers which approach to use: the lump sum 400k approach, or the formula. They will have a tax accountant on contract to help any crabber that asks for assistance in this process. Cooperative Fisheries Management Plan: We discussed the fact that developing a cooperative management plan for fisheries (implemented by the state) will be a long-term process, that may not begin until eligibility is settled for the inner-bay fisheries. The first step would probably involve crafting an MOO to guide the process of developing the cooperative plan. We discussed the fact that public process issues and jurisdictional questions would quickly arise, as they did in previous committee work on this topic. We established that If there is a silver lining in this whole affair it has to do with the research opportunities, and pledged to make that a fundamental aspect of our ongoing relationship, and of the cooperative plan. You can expect to receive a letter from the NPS asking for a meeting with regional staff to discuss (brainstorm) research possibilities including baseline work (stock assessment, I assume) they would like to begin fairly soon. Legislation: We all have heard that both Sen. Stevens and Sen. Murkowski have discussed new legislation on this topic; Sen. Stevens is likely to take the more narrow approach, and only address issues that Interior is likely to support. This could include compensation for small businesses affected by the fishing closures, and communities. We would likely want to include, if possible, language and hopefully an appropriation related to fisheries research. It may be possible to further clarify jurisdictions. Legislation could become a reality as soon as next May, in the supplemental appropriations bill. Eligibility: We made our position clear that there should not be any further compromise on fisheries in Glacier Bay, and that all fishermen with a history of use (any permit holder claiming use of Glacier Bay in the past ten years) should receive an access permit. We discussed the fact that the CFEC data Jeff obtained, while useful, nonetheless a) is incomplete, b) is misleading, and c) raises as many questions as it answers. In general it shows many permit holders have used Glacier Bay only occasionally, over the past ten years, while relatively few have used it consistently. We described, however, several reasons for taking a liberal approach to eligibility. Reasons include fairness, the burden of documenting landings and adjudicating applications for fishermen wishing to apply under a more restrictive scenario, and the socioeconomic impacts. We spent time discussing how we might address concerns that an open eligibility scenario could allow an increase in harvest with possible localized depletions as a result. This is primarily a concern in the case of halibut (where harvest is increasing now and the NPS believes at least some halibut may be resident) and maybe tanner crab. We discussed the fact that our argument for open eligibility would be better received by Interior if we include suggestions for how conservation concerns could be addressed, such as with programs to more closely monitor harvests or more stock assessment work. This ties in with cooperative research opportunities I mention above. I appreciate your allowing Jeff Hartman to work on this issue; the socioeconomic analysis, our position on eligibility, and the CFEC data summaries are time-consuming aspects of our response to the draft regs and Jeff is making critically important contributions. -------------------------Original message header: >MAIL FROM:<tinac1@fishgame.state.ak.us> >RCPT TO:<sally_gibert@gov.state.ak.us> >DATA >Received: from pop-admin.state.ak.us ([146.63.248.16]) by jnumail1.state.ak.us 2/8/99 10:19 AM . OCT-23-98 FRI 12:52 PM COMMR'S OFFICE ADF&G FAX NO. 1+907+465+2332 P. 02/06 .. ALASKA DEPARTMENT OF FISH AND GAME OFFICE OF THE C01v.IMISSIONER MEMORANDUM October23, 1998 To: Glacier Bay Wo~~?PP Members From: Rob BoswortHJ:/Iv- Of course, a lot has happened lately that affec1s the Work Group. I have attached final language of the Glacier Bay legislation recently passed by Congress. We did hold a very brief.m.eeting of the Work Group on October 15~ but due to the uncertainty over the legislation, and the fact that several of you were still fishing or otherwise tmavailable, few people were present and we adjoumed after about m hour. We did receive reports from our three active conunittees: crab compensation, cooperative management, and advisoey group. We also detennined that if legislation is passed,· we should convene another meeting in November. I still have reserved November 9-10 for a follow-up meeting, but I will ask Nancy to call each of you before oortfirming those dates. She will be checking to see if the latter part of that week, November 12tJJ and 13th~ works better for most or all of you. Some members have asked that the meeting start later allow travel on that day. This will mean we are more likely to ca.nY over to the seoond day, and I will ask Nancy to check with you on your preferences. The next meeting of the work group will be to discuss the legislation and chart the future of the work group. The NPS still pl.aru! to finalize their regulations? and I believe the Work Group can still play an important role in this process. The comment deadline on the regulations has been extended until January 15th, which is not far off when you consider the intervening holidays. Thank. you. .. OCT-23-98 FRI 12:53 PM COMMR'S OFFICE ADF&G .•••• -·-··-·-· _., ••• ~~ vv r V'&.lllfJ f FAX NO. 1+907+465+2332 P. 03/06 J '-U'-Ut't';IU~ ,...,. I TttU'/'1"4D01'4!.$~~ j I' l .... .. Glacier Bay Language. SEC. 123. COMMERICALFlS!llNG IN GLACIER. BAY NATIONALP~ (a) G~RA.J,- I i I 628 l (1) The Secretary of the Interior and the State of 1 Alaska shall cooperate in the developmMt of a m~r-ment plan for the regulation of commercialftiheries in : Glacier Bay National Park pw-auant to existing State i FederalstatuteM and any applicable intemmfonal co. · and management 1Pfaf/e8. Such managemqnt i plan shall provide for commercial fohing in the mar · wuters within Glaaier Ba.v National Pa?k outside ofG :..cier . I Bay Proper, and in the mmine waters wlthtn Glaci'er 11 Bay Proper as specified in JHIYagraphs ('l)(2) through\! (a)(.5), and shall provide for the protection ofparkva~ u .and purp~ea for the prohibitioHt of any new or expan' ''ed ftaheties~ and for !he opportunity for the study ofm · 1 reaourc~s. . (2) In the nonwilderness waters within Glacim-Bay ~\1 Proper1 CfJmmer~ialflshing $hall be limiteti by~ tf non-transferable lifetime access permits, solely to ind 1 . • td-uala who-; (A) hold a valid commercial fishing permit for a fish in a gefJgraphic area that mcludes the nonwiltlerness il'l watffr.Y withtn .. Glacier Bay.P.,oper; I (B) provides a swam and norartzed affidavit and i other available .corroborating documentat1on ~ the~· · ~retmy afthFit Interior sufficte:nr M eatablilh that 'uch indl-vf, W engaged in commftYCt.alfishingfor halib~ tanner629JI cr4b1 or &almon in Glacier Btzy Proper during qt«lli/Yt years which .shall be established by the Secretar)l of~[ln-oteriol' wtthtn one yeat' of the date of the enactment ofthi.!J ;11 .Aot; and (C) ftah only with- (i) longlins gBar far halibut; (iQ p'?_tS or ring nets for tanner crabi or ..-, ... ·· .. '• ,·n~' ''' ·-- ! l· r ,, ~ . · OCT-23-98 FRI 12:54 PM COMMR'S OFFICE ADF&G FAX NO. 1+907+465+2332 P. 04/0B '£U£UL~~Q~I~ IT~UIT4Q~T~~~l•H ~ """-"' _, _,,,,_ •• t"'-fU .. I\f' ... v r tV&.&. YV r v•~&.rltl 9 (iii) trolling gear for salmon. (.3) With respect to the individuals engagz"ng in com- flshingfor Glacier Bay Proper pursuant to par~ l I . (2), no fishing shall he allowed in the West Ann of Glacier Bay Proper (West Arm) north qf 58 degrees, 0 mtnutu north latitude except for trolling/Or king sal on during the period from October 1 through April SO. . e water of Johns Hopkins Inlet, Tarr Inlet and Reid lnf.. ~ shall remain closed to all commflrcial fishing. . (4) With 1'espect to the individuals engaging in com-. rctal fiahing in Glacier Bay Proper pUFsuant to para-grap. (2), no fishing shall be allowed in the East A.rm of I Glacier Bay Proper (East Arm) North of a line draw ' ; from Point Caroline, through the southern end QjGa' 'orth .18/and to the east side of Mrdr Inlet, except that troll · r for ldng salmon during the period .from October J · rgh April 30 shall be allowed s(}Ufh of a line drawn acros:: Muir Inlet at the southemmo8t point of A.damli lnlst. I 0 (5) With respect to the individuals engaging in com-~ 'Cial fishing tn Glacier Bay Proper pursuant to para-grap. : . (2). no fishing shall bs allawed in Geikie Inlet. (b) 1i!EBBARD8.LMlsLANIJ$.AND UPPERDUND4S BA.Y.-Commerical fishing is prohibited tn th8 dut 'ed wilderness waters within Glacier Bay National Park t: Preserve~ including the waters of the Beardslee !ali Upper Dwtdas Bay. Any indi.vtdualwhc- (1) on or before February 1, 1999J provides a swum I and notarized affidavit and other available corrobora. documentation to the Secretary of the Interior sujfici to eatabliah that he or a he has engaged in commercial ing for Dungene&s crab in the designated wilderness~ 'k of I the Beardslee Islands or Dwu1a8 Baywtthin Glttcfer :tv National Park pursuant to valid commercial fishing mit tn at lea1t six Qfthe years during the period 1987 . through 1996; . (2) at the time of receiving compensation b1i$ed on th~ Secretary of the Interior 1$ determination as desc:rihed lj bel~ : ~··--,,-___.. •• __ ··:·:.·:' •• ?~'":"" • .....-:-~-...,......,.-~-·--..· .. ....._. •• ,. I i .. I ' . f .... FAX NO. 1+907+465+2332 P. 05/06 2026245857~ 1+807+4ij5+2332;# 4 ! r (...() tlgrees tn writing not to tmgtlged in commercial I ftahingfor Dungeness crab w,.thin Glcwier Ba,y Prop · 1" (B) reltnquishes to the State of Alaska for the p~ of its retirement Q1{V commercial fishing pennitfor ; L'!l Dungnesa crab to~ areaa wtthtn Glar:ter Bay ProperJ·ir 1 (C) at the individual~ option, relinqui~lu:a ta the ' I United States the Dungeness crab pots CQVered by. 11 ·lcom .. mercial fishing permit,• and · j (D) at the individualJs option, reltnqui~hed to the U1'1ited States the fishing veaael used for Dtmgeness fishing in Glaciu Bay Proper]· and (S) hold a. current valid cummercialjlshtng permit that allows suah individual to engage in commercial for Dungrmesa crab tn Glacier Bay National Park. : 1 shall be eligible to receive from the United State~ co. . tpensation that is the greater of (i) $40~ 000,, or (ii) an· ; I amount equal to tiJe fair mtn'ket value (as of the date relinqutshment) ofthe commercial.ftshingpermitjor wgeness ·I crab, af any Dungeneas ctab pots or other Dunge•n . arab gear, and of not more than on Dtmgenesa crab ; 1 · fishing vesael, tagethgr with an amount equal ttl the : 1 ent value of the foregone net income jrotn commercialfls, ~g for Dungeness crab for the period January 1~ 1999~ : 1 through-December Jl. 2004, based on the individuQJ.'' inet earnings from the Dung~ness Cl'Qbfohery during the · riod January 1, .1991, through December 31~ 1996. An)! 11 indtvfdual seeking auch compensation a hall provide · conaent 'l'leMSsary for the SecPefary of the lnterior to ~ ri.J) such net earnings in the fishery. The SeCfl'etary of the ~rior 'a determtnation of the amount to be paid shall be com . :2 pleted and payment shall be made within &ix months · m the date of the application by ths individuals ducrib , 1in thfs subsectiQn and shall conatitutejiH41 agency actio I subject to l'eview pursuant It> the Adminwative Pro~·.~ ~av Act iiJ the United States District Court fo1' ths Dis-tric · ofA.la$ka. (c) DEFJNmON ANDSI.WGS CLA.lJNE.- (1) ..43 used in this section, the term ''Glacier Bay ----:-----.. ....,...._~,·-·--- .,. I OCT-23-98 fRLJ2..~59.J.tl .. ., QQMMR' .s.vDtti9& ~Df~ .. G,,,,, , --··· -· ,. .. ·- Pn!per'' 8hall mean the marine Waters within Gfacie . Be{v. including coveN and inleu. north 0/4/ine d'w:,hfM from Point Custavus to Point Caro/1.111. . (2) Noting in this section i.8 intended to enlarge .or di-\ Federal or State tttle~Juri9dicti"ont or f.Uithority ; with respect to the waters of the State of A.laalra. the · wtthin thR bormdarie8 ofG'14cier .Ba'y Nattal1fJ/ Per~ the tidal or submeJ"ged land.s wuJer at9' provision. of or Federal law. ~---:-·-=,---.. ~~ ·.tr-.• -....... _.~,:"!".!·'...,...._; .---. ::\:-.-.,""!"'" . ...-~ -~-.-.-. ~,y---, •-;'7":-•• --. -=-----~·----· ' ~~--·-... ~f(l~ • . . • ,, . ' ' II" • .. ,, I ~ . ' .. -~· '·~ I~·(" !. Unit ed St at es Department of the Interi or NATIONAL PARK SERVICE IN REPLY REFE R TO : Gl acier Bay National Park a nd P re serve P .O . Box 140 Gustav us, Alask a 9982 6-01 40 PLEASE NOTE NATIONAL PARK SERVICE 1~,!---© ~ n w fi,fn) lJIJ L • I ,. ~ ANCHOttA<.t OMB _, GOVERNMENTAL COORDINATION INTENT TO EXTEND COMMENT PERIOD TO FEBRUARY 1, 1999 In response to recent requests and the later than expected date of this mailing, the National Park Service will . extend the public comment period on the Commercial Fishing Proposed Rule and Environmental A~sessment to February 1, 1999 . The extension is intended to insure a reasonable opportunity for public comment and will be published in the Federa~ Register · before close of the current comment period on January 15 , 1999. The new Federa~ Register extension will be posted on the park's web site, www.nps.gov\glba, under the management issues section following publication . Please contact the park at (907) 697-2230 for assistance or information. Tomie Patrick Lee Superintendent December 23, 1998 United States Department of the Interior NATIONAL PARK SERVICE IN REPLY REFE R TO: L1619b December 11 , 1998 Glacier Ba y National Park and Preserve P.O. Bo x 140 Gustavu s, Alas ka 99826-0 140 Subject: Commercial Fishing in Glacier Bay National Park Dear Reader: AN CHOitAG I:. OMB GOVERNMENTAL COORDINATION I am writing to provide you information regarding the new law addressing commercial fishing in Glacier Bay National park and the extension of the public comment period on the NPS Commercial Fishing Environmental Assessment (EA) and Proposed Rule (62 FR 18547, April 16 , 1997). On October 21, 1998 , President Clinton signed the Omnibus Consolidated and Emergency Supplemental Appropriation Act for FY 1999 (P. L. 105-277) ("the Act"). Section 123 of the Act outlines new statutory requirements regarding commercial fishing in the marine waters of Glacier Bay National Park. Two Federal Register notices are enclosed for your information and response . The first notice extends the public comment deadline on the proposed rule and EA until January 15 , 1999 , as directed by the congressional managers of the Act. It also provides the full text of Section 123 of the Act for your information . The second notice describes the application procedure for the Dungeness crab commercial fishery compensation program authorized by the Act. In recent years, National Park Service and the Department of the Interior have joined with the State of Alaska, commercial fishermen , Native leaders, Alaskan representatives of local , regional and national conservation groups, and hundreds of other cit izens like you in working toward a balanced resolution of commercial fishing issues within Glacier Bay National Park. With the passage of the Act, our collective challenge and -for National Park Service staff, our personal commitment -is to make this new law work for the long term: for the park, for the State of Alaska, for the commercial fishermen who are and will remain an important part of this park 's story, and for all Americans who care about our nation 's ri ch natural and cultural heritage and this special place . By working together, we can achieve a promising future that benefits all. Please accept my thanks for your personal concern, commitment and contribution . Your comments and ideas are important. Your continuing interest and involvement are essential to the future of this great national park. Sincerely , 1 ~~ tb~ ~-------~ , Tomie Patrick Lee Superintendent Friday December 11, 1998 Part VII -J ANCHOMf:Jt OMB GOVERNMENTAL COOR DINATION Department of the Interior National Park Service 36 CFR Part 13 Glacier Bay National Park, Alaska; Commercial Fishing Regulations and Environmental Assessment; Proposed Rule Dungeness Crab Commercial Fishery Compensation Program Application Procedures; Notice 68666 Federal Register/Val. 63, No. 238/Friday, December 11, 1998/Proposed Rules DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 Glacier Bay National Park, Alaska; Commercial Fishing Regulations and Environmental Assessment AGENCY: National Park Service, Interior. ACTION: Reopen the publicLBomment period for the Proposed Rule and Environmental Assessment. SUMMARY: Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 ("the Act"), signed into law on October 21, 1998, establishes statutory requirements for the management of commercial fishing in Glacier Bay National Park. The congressional managers of this legislation directed the National Park Service (NPS) "to extend the public comment period on the pending regulations (62 FR 18547, April 16, 1997) until January 15, 1999, modify the draft regulations to conform to [section 123's]language and publish the changes in the final regulations." Accordingly, the public comment period on the Proposed Rule and Environmental Assessment (EA) for commercial fishing will remain open until January 15, 1999. DATES: Comments on the proposed rule and EA will be accepted through January 15, 1999. ADDRESSES: Comments on the proposed rule and EA should be submitted to the: Superintendent, Glacier Bay National Park and Preserve. P.O. Box 140, Gustavus, Alaska 99826. Comments on the proposed rule and EA may be made on the park's Web site at http:// vvww.nps.gov/glba, or by phoning the park at (907) 697-2230. FOR FURTHER INFORMATION CONTACT: Copies of the EA and the Executive Summary are available by writing to Glen Yankus, National Park Service Support Office, 2525 Gambell St., Anchorage, Alaska 99503, or calling (907) 257-2645. The EA Executive Summary, Proposed Rule, and Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 are also available on the park's Web site at ttp://vvww.nps.gov/glba. SUPPLEMENTARY INFORMATION: Section 123 of the Act (Pub. L. 1 05-277) directs the secretary of the interior and the state of Alaska to develop a cooperative management plan for the regulation of commercial fisheries within the park consistent with protection of park values and purposes, a prohibition on new or expanded fisheries, and opportunities for study of marine resources. The law provides for the continuation of commercial fishing in the marine waters of Glacier Bay National Park outside Glacier Bay proper. The law limits =-commercial fisheries within Glacier Bay proper to Tanner crab, halibut and salmon, and limits participation in these commercial fisheries to the lifetimes of individual fishermen with a qualifying history. Areas in the upper reaches and inlets of Glacier Bay proper are closed to all commercial fishing or are limited to winter season king salmon trolling by grandfathered fishermen. Designated marine wilderness areas in the park are closed to commercial fishing. Compensation is provided for qualifying Dungeness crab fishermen displaced by closure of designated wilderness waters of the Beardslee Islands and Dundas Bay. The full text of Section 123 of the Act is provided at the end of Supplementary Information. NPS will publish a final rule regarding commercial fishing in the marine waters of Glacier Bay National Park after the close of the public comment period, as directed by Congress. Section 123 determines by statute several aspects ofthe NPS's proposed rule, but leaves other aspects open for final rulemaking. For example, Section 123 establishes by statute the phase-out of commercial fishing in Glacier Bay proper proposed by the rule. However, whereas the proposed rule would have eliminated commercial fishing in the bay after a 15-year period, Section 123 allows qualifying fishermen to fish in the bay throughout their lifetimes. In deference to rulemaking, Section 123 leaves to the Secretary of the Interior the determination of the number and timeframe of years that will qualify individuals for the nontransferable lifetime permits. The proposed rule would have required a fisherman to have participated in a Glacier Bay-proper fishery for a minimum of six years during the period of 1987 through 1996 to qualify for the 15-year access permit contemplated by the proposed rule. The final rule will determine the appropriate eligibility requirement for the lifetime access permit mandated by the statute. NPS welcomes and encourages ideas on what are reasonable eligibility criteria for lifetime access to the commercial Tanner crab, halibut and salmon fisheries authorized in Glacier Bay proper by the Act. Are the eligibility criteria outlined in the proposed rule appropriate? Should a different number and timeframe of qualifying years (e.g., three out of a five-year period) be considered? Should the three fisheries have the same eligibility criteria, or are there differences among the fisheries that support different eligibility criteria for different fisheries? NPS will implement the statutory requirements of Section 123 of the Act in a final rule. All issues raised by the proposed rule not explicitly resolved by Section 123 of the Act are still open for comment. For example, Section 123 of the Act directs the state of Alaska and the secretary of the interior to develop a cooperative management plan (see Section 123 (a)(l), at the end of SUPPLEMENTARY INFORMATION). The proposed rule also contemplated such a plan. As cooperative management is envisioned, the state would continue its role in management of commercial fisheries and NPS would contribute expertise in protection of park purposes and values; both state and federal agencies could jointly develop appropriate marine research projects. NPS seeks public comments and ideas on federal-state cooperative management to help federal and state officials begin their discussions. However, details of cooperative management will not be included in the final rulemaking because such details will be developed cooperatively with the state of Alaska. The proposed rule (including the preamble) raises other issues not addressed by the Act, such as proposals to develop a Hoonah Tlingit cultural fishery and consider fisheries research opportunities. NPS acknowledges that some issues raised in the proposed rule may be more appropriately considered in development of a cooperative management plan with the state of Alaska. NPS will review all comments received to date on the proposed rule and EA and encourages additional comments in light of the new legislation. In addition to being published in the Federal Register, this notice is being mailed to all 1,300+ individuals who have already provided comment on the proposed rule. Consequently, all commenters have an opportunity to provide new or additional comments. The full text of Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 (Pub. L. 105-277) is provided below .II II Note: The text of section 123 is provided for the convenience of the reader. The official version of section 123 appears in Pub. L. 105-277, 112 Stat. 2681. \ Federal Register/Val. 63, No. 238/Friday, December 11, 1998/Proposed Rules 68667 COMMERCIAL FISHING IN GLACIER BAY NATIONAL PARK SEC. 123. (a) GENERAL- (1) The Secretary of the Interior and the State of Alaska shall cooperate in the development of a management plan for the regulation of commercial fisheries in Glacier Bay National Park pursuant to existing State and Federal statutes and any applicable international conservation and management treaties. Such management plan shall provide for commercial fishing in the marine waters within Glacier Bay National Park outside of Glacier Bay Proper, and in the marine waters within Glacier Bay Proper as specified in paragraphs (a) (2) through (a) (5), and shall provide for the protection of park values and purposes, for the prohibition of any new or expanded fisheries, and for the opportunity for the study of marine resources. (2) In the nonwilderness waters within Glacier Bay Proper, commercial fishing shall be limited, by means of non-transferable lifetime access permits, solely to individuals who- (A) HQld a valid commercial fishing permit for a fishery in a geographic area that includes the nonwilderness waters within Glacier Bay Proper; (B) Provide a sworn and notarized affidavit and other available corroborating documentation to the Secretary of the Interior sufficient to establish that such individual engaged in commercial fishing for halibut, Tanner crab, or salmon in Glacier Bay Proper during qualifying years which shall be established by the Secretary of the Interior within one year of the date of the enactment of this Act; and (C) Fish only with- (i) Longline gear for halibut; (ii) Pot or ring nets for Tanner crab; or (iii) Trolling gear for salmon. (3) With respect to the individuals engaging in commercial fishing for Glacier Bay Proper pursuant to paragraph (2). no fishing shall be allowed in the West Arm of Glacier Bay Proper (West Arm) north of 58 degrees, 50 minutes north latitude except for trolling for king salmon during the period from October 1 through April30. The waters of Johns Hopkins Inlet, Tarr Inlet and Reid Inlet shall remain closed to all commercial fishing. (4) With respect to the individuals engaging in commercial fishing in Glacier Bay Proper pursuant to paragraph (2), no fishing shall be allowed in the East Arm of Glacier Bay Proper (East Arm) north of a line drawn from Point Caroline, through the southern end of Garforth Island to the east side of the Muir Inlet, except that trolling for king salmon during the period from October 1 through April 30 shall be allowed south of a line drawn across Muir Inlet at the .southernmost point of Adams Inlet. (5) With respect to the individuals engaging in commercial fishing in Glacier Bay Proper pursuant to paragraph (2), no fishing shall be allowed in Geikie Inlet. (b) THE BEARDSLEE ISLANDS AND UPPER DUNDAS BAY.-Commercial fishing is prohibited in the designated wilderness waters within Glacier Bay National Park and Preserve, including the waters of the Beardslee Islands and Upper Dundas Bay. Any individual who- (1) On or before February 1, 1999, provides a sworn and notarized affidavit and other available corroborating documentation to the Secretary of the Interior sufficient to establish that he or she has engaged in commercial fishing for Dungeness crab in the designated wilderness waters of the Beardslee Islands or Dundas Bay within Glacier Bay National Park pursuant to valid commercial fishing permit in at least six of the years during the period 1987 through 1996; (2) At the time of receiving compensation based on the Secretary of the Interior's determination as described below- (A) Agrees in writing not to engage in commercial fishing for Dungeness crab within Glacier Bay Proper; (B) Relinquishes to the State of Alaska for the purposes of its retirement any commercial fishing permit for Dungeness crab for areas within Glacier Bay Proper; (C) At the individual's option, relinquishes to the United States the Dungeness crab pots covered by the commercial fishing permit; and (D) At the individual's option, relinquishes to the United States the fishing vessel used for Dungeness crab fishing in Glacier Bay Proper; and (3) Holds a current valid commercial fishing permit that allows such individual to engage in commercial fishing for Dungeness crab in Glacier Bay National park, shall be eligible to receive from the United States compensation that is the greater of (i) $400,000, or (ii) an amount equal to the fair market value (as of the date of relinquishment) of the commercial fishing permit for Dungeness crab, of any Dungeness crab pots or other Dungeness crab gear, and of not more than one Dungeness crab fishing vessel, together with an amount equal to the present value of the foregone net income from commercial fishing for Dungeness crab for .the period January 1, 1999 through December 31, 2004, based on the individual's net earnings from the Dungeness crab fishery during the period January 1, 1991 through December 31. 1996. Any individual seeking such compensation shall provide the consent necessary for the Secretary of the Interior to verify such net earnings in the fishery. The Secretary of the Interior's determination of the amount to be paid shall be completed and payment shall be made within six months from the date of the application by the individuals described in this subsection and shall constitute final agency action subject to review pursuant to the Administrative · Procedures Act in the United States District Court for the District of Alaska. (c) DEFINITION AND SAVINGS CLAUSE.- (1) As used in this section, the term "Glacier Bay Proper" shall mean the marine waters within Glacier Bay, including coves and inlets, north of a line drawn from Point Gustavus to Point Carolus. (2) Nothing in this section is intended to enJarge or diminish Federal or State title, jurisdiction, or authority with respect to the waters of the State of Alaska, the waters within the boundaries of Glacier Bay National Park, or the tidal or submerged lands under any provision of State or Federal law. Dated: December 4, 1998. john Quinley, Acting Regional Director. Alaska. [FR Doc. 98-32997 Filed 12-10-98; 8:45am] BILUNG. CODE 431~7~P • I 68668 Federal Register /Val. 63, No. 238 /Friday, December 11 , 1998/Notices DEPARTMENT OF THE INTERIOR National Park Service Glacier Bay National Park, Alaska; Dungeness Crab Commercial_ Fis_hery Compensation Program Apphcat1on Procedures AGENCY: National Park Service. Interior. ACTION: Glacier Bay National Park Dungeness crab commercial fishery compensation program application procedures . SUMMARY: Section 123 (b) (1)-(3) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999Act ("the Act ")(see SUPPLEMENTARY INFORMATION in the document extending the comment period on Glacier Bay National Park commercial fishing proposed rules published elsewhere in this issue of the Federal Register) authorizes compensation for qualifying fishermen with a history of commercial Dungeness crab fishing in designated wilderness waters of the Beardslee Islands or Dundas Bay in at least six of the years during the period of 1987 through 1996. This Federal Register notice serves to provide application instructions f~r individuals who believe they qualify for compensation as outlined by the Act . Applications must be provided to the Superintendent. Glacier Bay National Park and Preserve , on or before February 1. 1999 . DATES: Applications for the Dungeness crab commercial fishery compensation program will be accepted on or before February 1. 1999 . ADDRESSES: Applications for the Dungeness crab commercial fishery compensation program should be submitted to the Superintendent, Glacier Ba y National Park and Preserve , P . 0 . Box 140 , Gustavus, Alaska 99826 FOR FURTHER INFORMATION CONTACT: For information regarding the Dungeness crab commercial fishery compensation program . please contact Randy King. Glacier Bay National Park and Preserve. P. 0 . Box 140 . Gustavus. Alaska 99826 . Phone: (907) 697-2230. SUPPLEMENTARY INFORMATION: The Act requires fishermen to provide ce_rtain . information sufficient to determme the1r eligibility for compensation. Fishermen making application to NPS for compensation. as outlined by the Act , must provide the following information to the Superintendent: (1) Full name. mailing address , and a contact phone number. (2) A sworn and notarized personal affidavit attestin~ t_o th_e . applicant's h istory of part1c1pat10n m the Beardslee Island or Dundas Bay wilderness water commercial fisheries for Dungeness crab for at least 6 of 10 years. during the period of 1987 through1996. (3) A copy of the fisherman 's current state of Alaska Dungeness crab commercial fishing permit. (4) Any available corroborating information-including sworn and notarized affidavits of witnesses or documentation of commercial Dungeness crab landings from the Alaska Department of Fish and Game shellfish statistical units that include wilderness areas in the Beardslee Islands or Dundas Bay-that can assist in a determination of eligibility for compensation . The superintendent will make a written determination on eligibility for compensation based on the information provided by the applicant. The . superintendent will also make a wntten determination on the amount of compensation to be paid to an eligible applicant. The amount of compensation will depend on the compensation formula and options selected by the applicant and-as appropriate-the fair market values of the Dungeness crab commercial fishing permit and the fish ing vessel and gear used in the fishery . The Act requires payment within six months from the date of application . If an application for compensation is denied, the superintendent will provide the reasons for the denial in writing . Any applicant adversely affected by the superintendent's determination may appeal to the regional director . Alaska region. within 60 days. Applicant's must substantiate the basis of their disagreement with the superintendent's determination. The regional director will provide opportunity for an informal oral hearing . After consideration of written materials and oral hearing. if any . and within a reasonable time . the regional director will affirm. reverse. or modify the superintendent's determination and set forth in writing the basis for the decision . A copy of the decision will be forwarded promptly to the applicant and will constitute final agency action . Dated: December 4, 1998 . john Quinley, Acting Regional Director, Alaska. [FR Doc. 98-32998 Filed 12-10-98; 8:45am] BILUNG CODE BILLING CODE: 431G-7!H> [Federal Register: January 11, 1999 (Volume 64, Number 6)] [Proposed Rules] [Page 1573] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr11ja99-33] ======================================================================= DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 Glacier Bay National Park, Alaska; Commercial Fishing Regulations and Environmental Assessment AGENCY: National Park Service, Interior. ACTION: Public comment period extension for Proposed Rule and Environmental Assessment. SUMMARY: The National Park Service (NPS) announces that the public comment period for the proposed rule concerning Glacier Bay National Park commercial fishing published on April16, 1997 (62 FR 18547) and Environmental Assessment (EA) has been extended to February 1, 1999. The public comment period for the proposed rule and EA will end February 1, 1999. DATES: Comments on the proposed rule and EA will be accepted through February 1, 1999. ADDRESSES: Comments on the proposed rule and EA should be submitted to the: Superintendent, Glacier Bay National Park and Preserve, P. 0. Box 140, Gustavus, Alaska 99826. Comments on the proposed rule and EA may be made on the park's Web site at http://www.nps.gov/glba, or by phoning the park at (907) 697-2230. FOR FURTHER INFORMATION CONTACt: Copies of the EA and the Executive Summary are available by writing to Glen Yankus, National Park Service Support Office, 2525 Gambell St., Anchorage, Alaska 99503, or calling (907) 257-2645. The EA Executive Summary, Proposed Rule, and Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 are also available on the park's Web site at http://www.nps.gov/glba. Dated: December 28, 1998. Judy Gottlieb, Acting Regional Director, Alaska. . . ... United States Department of the Interior NATIONAL PARK SERVICE IN REPLY REFER TO : N1619 December 17 , 1998 Ms . Sally Gibert State CSU Coordinator Glacier Ba y National Park and Preserve P .O . Box 140 Gustavus , Alaska 99826-0140 Div i sion of Governmental Coordination Sou t h central Regional Office 3601 "Cu Street , Suite 370 Anchorage , AK 99503 -5930 Dear Ms . Gibert : DEC 2 3 1998 Iii"..,, 1\.1 'hu~ UJVI o GOVERNMENTA L COORDINATION I am writing in response to your letter dated November 10 , 1998 and received on November 16 , 1998 requesting that the National Park Service (NPS) withdraw the April 16 , 1997 proposed regulations for commercial fishing and issue new proposed regulations and a new or modified Environmental Assessment (EA) . I very much appreciate and understand the concerns raised by the state in making these recommendations . NPS shares the state 's interest in providing an effective and meaningful public involvement opportunity toward development of fina l regulations effecting commercial fishing activities within the park . Indeed , NPS has committed a substantia l effort to date in working with the state and publics toward this end over the l as t several years. The concerns and recommendations of the state were very care f ully considered by NPS and the Department of the Interior in responding to the passage of Section 123 of the Omnibus Appr o priations and Supplemental Emergency Act for FY99 ("the Ac tu). However , the congressional managers of the legislation were explicit in their direction to NPS to extend the comment deadline on the cur r ent proposed rule to January 15 , 1999 and to move toward a f i nal rule incorporating the statutory requirements of the Ac t . Moreover , f o r the purposes of NEPA , the statut o ry requirements o f the Act are within the range o f actions addressed in the c urrent EA . Accordingly , NPS extended the public comm ent dea dline o n the proposed rul e a nd EA t o Januar y 15 , 1999 in the Federal Register on De c ember 11 , 1998 . This is t h e 4 th extensi o n o f the public comment deadline f o r th e pr o posed rule and the 3 rct e xt e nsi o n o f the Ms. Sally Gibert Page Two public comment deadline for the EA. The extension also assures the more than 1,400 members of the public who have participated in resolution of the commercial fishing issue and provided comment to date that their ideas and comments will be fully considered. The Federal Register extension was written to focus public comment on those areas not precluded or decided by the Act. Most notable among these are eligibility criteria for the lifetime access permits authorized by the Act, and similarly contemplated by the proposed rule, for Glacier Bay proper fisheries. We also included NPS' preliminary view -as a point of information in response to the Act and the proposed rule -of how cooperative management would be structured, ·making clear that the details of cooperative management will _be worked out in close cooperation between the state and NPS. We look forward to working closely with you and the state in the months and years ahead to achieve a mutually successful cooperative relationship that benefits the public and our public trust responsibilities. With the passage of the Act, this has never been more necessary or appropriate. Please contact me if I can provide additional clarification or be of assistance. I can be reached at the park by calling (~07) 697-2230. Sincerely, ~~L~ Tomie Patrick Lee Superintendent TONY KNOWLES GOVERNOR The Honorable Bruce Babbitt Secretary of the Interior U.S. Department of the Interior 1849 C Street, NW Washington, DC 20240 Dear Mr. Secretary: STATE OF ALASKA OFFICE OF THE GOVERNOR JUNEAU December 16, 1998 P. 0. Box 110001 Juneau, Alaska 99811-0001 (907) 465-3500 Fax (907) 465-3532 "' '" •vnnl.ll.. UIWd GOVERNMENTAL COORDINATION I'm writing to ·seek your immediate involvement in the latest facet of the Glacier Bay commercial fishing issue. In particular, I respectfu ll y request your support for the issuance of new draft regulations at 36 CFR Part 13, to be developed cooperatively with the state , that respond to current legis lation and circumstances. As you know, the National Park Service (NPS) iss u ed draft regulations on April 16, 1997, laying out some proposed solutions to the wide-ranging commercial fishing debate and including a number of alternative scenarios to cons ider concurrently. An accompanying environmental assessment was released a year later. A stakeholders work group, led by the state and with informal input by NPS and Depart ment of the Interior, had been meeting before and after publication ofthe draft rule to further evaluate these and other options in hopes of finding common ground. Then in October, 1998 , Congress enacted legislation which preempted the stakeholder process, thereby deciding a number of key issues, leaving some unresolved, and r aising a few n ew questions. Congress directed the NPS to immediately extend th e comment period on the now out-of- date regulations to January 15 and to cooperate with the state " ... in the development of a management plan for the regulation of commercial fisheries in Glacier Bay National Park ... " [Section 123 of the legislation.] Last Friday , December 11, a Federal Register notice belatedly announced that the November 15 comment deadline had been extended to January 15. The announcement came without explanation of how interested parties should constructively respond to the old regulations , which are now clouded with uncertainly in light of the October legislation. Furthermore, there has been no attempt to work with the state on new regulations which respond directly to the legislation. With the 1 anuary 15 deadline rapidl y approaching , and with the intervening holidays, the lack of follow-up information and consultation has created a chaotic situation. The Honorable Bruce Babbitt December 16, 1998 Page2 Attempting to respond to the old regulations without insights on NPS interpretations and intent has become an unworkable, speculative process. ;-;:. 3 S 'f-H_\ At this late date, it would be preferable for NPS to direct its efforts to working with the state on new draft regulations for public review that reflect the new Congressional direction. Such a request for a new draft rule was made to Glacier Bay Superintendent Tomi Lee t>y my Division of Governmental Coordination in a November 10 letter. No response to this request has been received. As our November 10 letter noted, new draft regulations would be both good public policy and a legal obligation considering the significantly changed circumstances. In view of timeframes imposed by the legislation, perhaps there could be some consideration of fine tuning the comment deadlines on portions of the regulations to allow a smoother and more publicly accountable public process on remaining key issues. I appreciate your consideration of this request as soon as possible. Sincerely, cc: The Honorable Ted Stevens, U.S. Senate The Honorable Frank Murkowski, U.S. Senate The Honorable Don Young, U.S. House ofRepresentatives Don Barry, Department of the Interior Destry Jarvis, Department ofthe Interior Robert Stanton, Director, National Park Service Robert Barbee, Alaska Regional Director, National Park Service Tomi Lee, Superintendent, Glacier Bay National Park and Preserve Frank Rue, Commissioner, Department ofFish and Game John Shively, Commissioner, Department ofNatural Resources Bruce Botelho, State Attorney General John Katz, Governor's Washington D.C. Office _ . ......_ 12/28/1998 08:23 9EI7-772-4495 PBURG_VESSELOWNERS- Petersburg Vessel Owners Association P.O. Box 232 Petersburg, Alaska 99833 Phone (907) 772-9323 Fax (907) 772-4495 November 13, 1998 Tomi Lee, Superintendent Glacler Bay National Park Box 140 Gustavus, Alaska 99826 PAGE Ell Re: Commercial Fishing Regulations in Glacier Bay: Draft Comments. ·Proposed Rule, and Environmental· Assessment. • 0 ~ • • Dear Superintend~nt", • "i ··' o I •o o ' ' Congress rec'ent~y passed leg.fs.iation .regarding commercial fishing in Glacier Bay.·.; Regulatio~s . cppsi,stent 'with the intent of the legislation need· to. :be ~·deve:Jo~.~ Petersburg Vessel Owners Association (PVO"') ·, feq~es.ts: that· 'the ... ~ark Service issue a new Proposed ~ule ·S."C'1ftc. ·to .. the legislation. This will enable potentially imp~ted . fish~l"Jhe~, P..rQ.Ceasors and communi ties to meaningfully revlew .. .:the.·.~ft . r~s..ula.tions ~d provide comments consistent wtt1f. ~ npr:maJ..: .and legal· · . .,procedu.re •. Accordingly an Environmental Aase$~ent (BA) or a·aupplemental BA specific to the legislation shou~.ti!:·&e· ·.p·t.epared .: · · : . · · . · 0 0 0 0 : : •• 0 000: '•': ;·· 0 00:0 oi 0 o : I 0 'o, 0 ; I : 0 00 0 0 0 0 It is our ~nd~FS,t·~i~g that th~ P3:rk 5er.V"ice does not intend to issue a new. Pr.~pos·ed· ·Rule or an· ·EA. spe,c.J,fic to the legislation. Instead the Se:ry·ioo. bas merely e:x:tended· the· colllllllent period on the April iS,. 1997. P:topm;1ed Rule .and the original EA. Tl,le' 1997 Rule and associated BA· a·r.e ·not consistent .wi t-b' the neW legislation. The 1997 ·.Propo~e~(.::~le :t.~clu.de~:·. ~·~-~Y ~ect~o~s t~at are not even covered···by the ·leg:i.~~Jl~tion such as the Dungeness crab~ study, the halibut study and ;sp~cial plans for Lituya and Dundas Bays. The Rule phas~s·~t c~rcial fishing in the Bay.Proper in 15 years for parti·~ip~t~ W·lth' a 6 out of 10 year .his·tory. The legislation differs in that it provides for life-~i•e fishing for an unknown number of'participants with an as ye.t ul:idetermined history. 0 0 o I 0 o • 0 I 0 :·· 0 00 0 :.1 : o T~e Propos~d .ftttfe . allows .·for ·~-~~;leSS ci"i?.bbing in the non- W1lderness Waters .of :the Bay while. the ·.legislation prohibits this fishery. The legislation has closed waters. that are not found in the Proposed Rule .. The legislation has language in regards to the buyback and compensa.tion for Dungenesa crabbers being booted from the Wilderness Waters. . . The "cooper~t-ive .nanagement 11 in the OUtside Waters in the Proposed Rule has many more conditions placed on it than the same management in the legislatio~. The Proposed· Rule allows the Secretary of the Interior to close or .modify the Out~ ide Waters at any time. This is -· ·-· 12/28/19~8 08:23 907-772-4495 PBURG_ VESSELOWNERS_ PAGE 02 not part of the legislation nor is the re-evaluation of the cooperative management plan in 15 years as is found in the Proposed Rule. These are but a few examples or the many differences that occur between the Proposed Rule and the legislation. The differences between the legislation and the 1997 Proposed Rule are significant and numerous enough to warrant the withdrawal of the 1997 Proposed Rule. Accordingly the Park service needs to issue a new Proposed Rule that corresponds with the legislative intent. An other reason to issue draft regulations for comment is that there are sections of _the bill that lack specificity such as the qualifying years in the Bay Proper and "cooperative management". Who will be allowed to fish in the Bay? Without knowing that, how are affected parties able to meaningfully comment? Without knowing who or how many, how has the Park Service assessed the impacts on small businesses and find compliance with the Regulatory Flexibility Act as is stated in the Proposed Rule? Asking people to provide comments on just the legislation and not the actual regulations is problematic. This puts the public 'in the position of having to trust the NPS to write the regulations without a formal comment and review period. From the perspective of the fishing cooununi ty, the Park Service does not warrant that trust. Consider the NPS 1984 General Management Plan which states."Halibut and salmon fishing and crabbing will not be prohibited by the Park Service." In subsequent years the Park Service has sought to immediately eliminate those same fisheries (the "no action" alternative) ,or in seven years, and in fifteen years. This seems to be related to the fact that the Park Service is continually re-defining "park values". " As for the EA, PVOA believes that a new or supplemental document be prepared. The new document should more accurately quantify and ··qualify (by fishery) the socio-e.conomic impacts on fishermen, processors and communities. The "no action" alternative should be status quo, that is continued open access fishing as it has been for the last hundred years. The original EA is a flawed document in that the no action alternative immediately ends commercial fishing, and devotes but three and one quarter pages to total fishery revenue effects. The section entitled "Issues Considered but not Addressed" is longer and more comprehensive than the fisheries revenue impact analysis. - Petersburg residents hold 46% of all SE Tanner pot permits, 53% of all SE king crab permits, and 32% of all Dungene~s permits (53% of the 300 pot permits). Any action restricting those fisheries and the available resource impacts Petersburg. We deserve more than two sentences in the EA to quantify those impacts. Th~ ;;~r consideration in this matter, Gerry Merrigan, Director PAGE B3 12/28/1998 B8:23 987-772-4495 . . United States Department of the Interior NATIONAL P~ SBRVICB IN REP&.Y Ulla TO: Olader Bay NalioMI Park and Preserve P.O. Bela laG GUI&&YIIIt Alub 99826-0l-40 ., Nl619 December 17, 1998 Mr. Gerry Merrigan Director Petersburg Vessel Owners Association P. 0. Bok 232 ' Peteraburg,' AK · 99.833 Dear Mr. Merrigan, I am writing in re~ponse to your' letter dated November 13, 1998 and received on November 17, 1998 requesting that the National Park Service (NPS) withdraw the April 16, 1997 p~oposed regulation~ for commercial ·fishing and issue new proposed regulations and a new or modified Environmental Assessment (EA). I very much appreciate and understand the concerns of the Petersburg,Vessel OWners Association in making· these recommendations. ·NPS ·shares the Asaociation's interest in providing an eftective and mean~ngful public involvement opportunity toward development of 'final regulations effecting.commercial fishing activities within the park. Indeed, NPS has committed a substantial effort ~o date in working with the state, fishermen and other pUblics .. ·~ toward this end over the last several years. The concerns and recommendations of ·the Association, also reflected QY ~h~ State of Alaska, were very carefully considered_by NPS'and the Department of the Interior in resppnding to the passage of Sect~on 123 of the Omnibus Appropriations and Supplemental Emergency Act for FY99 (uthe Act"). However, the congressional managers of the legislation were explicit in their direction to NPS to extend the comment deadline · on the cur.rent proposed ru.le to January 15, 1999 and to move toward a final rule incorporating the.statutory requirements of the Act. Moreover, for the'purposes of NEPA, the statutory requirements of the Act are within the range of actions addressed in the current EA. Accordingly, Nl?S extended the public comment deadline on the proposed rule and EA to January 15, 1999 in the Federal Register on·Oecember 11, 1998. This ia the 4th extension of tne·· public comment deadline for the proposed rule and the 3~d extension of the . •... . "' 12/28/1998 B8:23 98'7-772-4495 PBURG_VESSEL_OWNERS_ public comment deadline for the EA. The extension also assures the more than 1,400 members of the public who have participated in resolution of the.commercial fishing issue and provided comment to date that their ideas and comments will be fully considered. PAGE B4 The Federal Register extension was written to focus public comment on those areas not·precluded or decided by the Act. It is clear that Congress, in pas5ing the Act, has larqely determdned the future of commercial fishing in the park. Most notable of any remai~nq decisions for a final rule are eligibility criteria for the lifetime access per.mits authorized by the Act for Glacier Bay proper fisheries. Similar eligibility issues have been raised in the proposed rule for public comment for the past 20 months. The Federal Register extension also included NPS' preliminary view -as a point of info~ation in response to the Act and the propose.d rule -of how cooperative maila.qemant would be structu.t"ed,. :making t::lear that the details of cooperative management will be worked out in close cooperation between the state and NPS. We look. fo~ward to your ideas and comments on a final rule that will fairly and reasonably implement the Act and create a framework for a future that works for the fishermen, the park, the state·, and all those people who care about their nationai parks. This has been and will remain our goal~ We welcome any i~eas or info~~tion you or othe~ members of the Assoeiati~n can provide. W.e do look· fo:r:ward to working with you and the Petersburg Vessel Owners Association in the future. Please contact me if I can provide additional clarification or be of assisatanea. ·1 can be reached at the park by calling (907)697-2230 . . Sincerely, ~.·-~~~ Tomie Patrick Lee- superintendent . ,... . . .. ,. [Federal Register: December 11, 1998 (Volume 63, Number 238)] [Notices] [Page 68668] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr11de98-96] [[Page 68668]] DEPARTMENT OF THE INTERIOR National Park Service Glacier Bay National Park, Alaska; Dungeness Crab Commercial Fishery Compensation Program Application Procedures AGENCY: National Park Service, Interior. ACTION: Glacier Bay National Park Dungeness crab commercial fishery compensation program application procedures. SUMMARY: Section 123 (b) (1)--(3) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999Act ("the Act")(see SUPPLEMENTARY INFORMATION in the document extending the comment period on Glacier Bay National Park commercial fishing proposed rules published elsewhere in this issue of the Federal Register) authorizes compensation for qualifying fishermen with a history of commercial Dungeness crab fishing in designated wilderness waters of the Beardslee lslan~s or Dundas Bay in at least six of the years during the period of 1987 through 1996. This Federal Register notice serves to provide application instructions for individuals who believe they qualify for compensation as outlined by the Act. Applications must be provided to the Superintendent, Glacier Bay National Park and Preserve, on or before February 1, 1999. DATES: Applications for the Dungeness crab commercial fishery compensation program will be accepted on or before February 1, 1999. ADDRESSES: Applications for the Dungeness crab commercial fishery compensation program should be submitted to the Superintendent, Glacier Bay National Park and Preserve, P. 0. Box 140, Gustavus, Alaska 99826 FOR FURTHER INFORMATION CONTACT: For information regarding the Dungeness crab commercial fishery compensation program, please contact Randy King, Glacier Bay Natio'nal Park and Preserve, P. 0. Box 140, Gustavus, Alaska 99826. Phone: (907) 697-2230. I SUPPLEMENTARY INFORMATION: The Act requires fishermen to provide certain information sufficient to determine their eligibility for compensation. Fishermen making application to NPS for compensation, as outlined by the Act, must provide the following information to the Superintendent: (1) Full name, mailing address, and a contact phone number. (2) A sworn and notarized personal affidavit attesting to the applicant's history of participation in the Beardslee Island or Dundas Bay wilderness water commercial fisheries for Dungeness crab for at least 6 of 10 years, during the period of 1987 through1996. (3) A copy of the fisherman's current state of Alaska Dungeness crab commercial fishing permit. (4) Any available corroborating information--including sworn and notarized affidavits of witnesses or documentation of commercial Dungeness crab landings from the Alaska Department of Fish and Game shellfish statistical units that include wilderness areas in the Beardslee Islands or Dundas Say--that can assist in a determination of eligibility for compensation. The superintendent will make a written determination on eligibility for compensation based on the information provided by the applicant. The superintendent will also make a written determination on the amount of compensation to be paid to an eligible applicant. The amount of compensation will depend on the compensation formula and options selected by the applicant and--as appropriate--the fair market values of the Dungeness crab commercial fishing permit and the fishing vessel and gear used in the fishery. The Act requires payment within six months from the date of applic'ation. If an application for compensation is denied, the superintendent will provide the reasons for the denial in writing. Any applicant adversely affected by the superintendent's determination may appeal to the regional director, Alaska region, within 60 days. Applicant's must substantiate the basis of their disagreement with the superintendent's determination. The regional director will provide opportunity for an informal oral hearing. After consideration of written materials and oral hearing, if any, and within a reasonable time, the regional director will affirm, reverse, or modify the superintendent's determination and set forth in writing the basis for the decision. A copy of the decision will be forwarded promptly to the applicant and will constitute final agency action. Dated: December 4, 1998. John Quinley, Acting Regional Director, Alaska. [FR Doc. 98-32998 Filed 12-10-98; 8:45am] BILLING CODE BILLING CODE: 4310-70-P Author: Date: Kathryn_Swiderski@law.state.ak.us (Kathryn Swiderski) at CC2MHS1 11/20/98 12:09 PM Priority: Normal TO: Sally Gibert at Gov_Anchorage_DGC, stanl®dnr.state.ak.us at CC2MHS1, jeffh®fishgame.state.ak.us at CC2MHS1, robertb®fishgame.state.ak.us at CC2MHS1, ScottM®fishgame.state.ak.us at CC2MHS1, tinac1®fishgame.state.ak.us at CC2MHS1 CC: Joanne Grace®law.state.ak.us at CC2MHS1 Subject: draft GB comments I will be out of the office until the week of Dec. 13. To keep moving forward on our comments to the Glacier Bay rulemaking, I am sending around my current rough draft comments for your review and input. (Attached in Word and Wordperfect.) The draft is still VERY ROUGH and in a PRELIMINARY FORM. You will see large holes, many areas needing information or asking policy questions on what the state wants to say. I'd like your help in these places. Since the draft is so incomplete, my strong preference is that it remain an internal document. Discussions with the fishing industry may help us determine how to approach many of the issues, however. This is a good time to get your suggestions on the draft's structure and general organization. My hope is that the draft will help others develop their comments, and put them in a format that is compatible with this draft. (Unless Sally would prefer a different format, of course.) Since I've been focused on getting the issues down, I have not particularly focused on the tone of the document. I'd appreciate your assistance filling out the discussion of issues, and adding issues not presently addressed. I have not talked with Steve Langdon, but that contact could be very helpful for the economic impacts discussion and other issues. David Schnare at the SBA in DC is also interested in the economic impacts issues. He asked that we email him a copy of the proposed rule and our comments on economic impacts. He will then determine whether SBA will also weigh in on the side of small business. He will be a good resource for questions, too. Thanks very much. While I'm out, Joanne Grace is available to discuss all Glacier Bay issues. Call her with questions or concerns at 269-5251. Happy Thanksgiving. Kathy -------------------------Original message header: >MAIL FROM:<Kathryn_Swiderski®law.state.ak.us> >RCPT TO:<sally_gibert®gov.state.ak.us> >DATA >Received: from law.state.ak.us ([146.63.106.74]) by jnumaill.state.ak.us (Netsc ape Messaging Server 3.6) with SMTP id AAA12A for <Sally_Gibert®gov.state.ak.us >; Fri, 20 Nov 1998 12:09:47 -0900 >Received: from Law-Anchorage-Message_Server by law.state.ak.us with Novell Grou pWise; Fri, 20 Nov 1998 12:09:50 -0900 >Message-Id:<s6555c0e.087®law.state.ak.us> >X-Mailer: Novell GroupWise 5.2 >Date: Fri, 20 Nov 1998 12:09:20 -0900 >From: "Kathryn Swiderski" <Kathryn_Swiderski®law.state.ak.us> >To: stanl®dnr.state.ak.us,jeffh®fishgame.state.ak.us, robertb®fishgame.state.ak .us, ScottM®fishgame.state.ak.us, tinac1®fishgame.state.ak.us, Sally_Gibert®gov. OFFICE OF THE GOVERNOR OFFICE OF MANAGEMENT AND BUDGET DIVISION OF GOVERNMENTAL COORDINATION a SOUTH CENTRAL REGIONAL OFFICE 3601 "C" STREET, SUITE 370 ANCHORAGE, ALASKA 99503-5930 PH: (907) 269-7470/FAX: (907) 561-6134 November 10, 1998 Ms. TomiLee Superintendent a CENTRAL OFFICE P.O. BOX 110030 JUNEAU, ALASKA 99811-0030 PH: (907) 465-3562/FAX: (907) 465-3075 Glacier Bay National Park and Preserve Box 140 Gustavus, AK 99826 Re: Glacier Bay Commercial Fishing Regulations Dear Ms. Lee: TONY KNOWLES, GOVERNOR 0 PIPELINE COORD INA TOR'S OFFICE 411 WEST 4TH AVENUE, SUITE 2C ANCHORAGE, ALASKA 99501-2343 PH: (907) 271-4317/FAX: (907) 272-0690 In light of recent legislation regarding commercial fishing in and around Glacier Bay, the State of Alaska requests the Service withdraw the April 16, 1997 proposed regulations affecting 36 CFR Part 13 and issue new a proposed rule, and a new accompanying EA (or EA amendments), which reflect the legislative action and Service intentions toward implementati_on. We believe such a course of action is both good public policy and a legal obligation considering the significantly changed circumstances. Since the April 1997 release of the proposed regulations, the State's stakeholder work group sessions have brought many new ideas and alternatives to the table for consideration. Then in October 1998, Congress enacted relevant legislation, thereby changing some ofthe restricted areas and other limitations on public activities addressed by the rulemaking and assessed in the EA. In response, we understand the Service intends to extend the comment period on the proposed rule and EA to January 15, 1999. We believe, however, that a simple extension does not adequately provide for meaningful public involvement in light of the new legislation that resolves some issues but raises new questions. A new proposed rule and appropriate amendments to the EA would inform the state and public how the Service proposes to implement the legislated modifications. In order for us to meaningfully comment, we need to understand how the Service interprets the legislation, how this affects its preferred alternative, and how the Service expects to use regulations. 01-A35LH We appreciate your consideration of this request as soon as possible. Sally Gibert State CSU Coordinator cc: Molly Ross, Department of the Interior Robert Stanton, Director, National Park Service Robert Barbee, Regional Director, National Park Service Randy King, Glacier Bay National Park and Preserve Frank Rue, Commissioner, Department ofFish and Game John Shively, Commissioner, Department ofNatural Resources Bruce Botelho, State Attorney General John Katz, Governor's Washington D.C. Office ~uthor: Date: robertb@fishgame.state.ak.us (Bosworth; Robert) at CC2MHS1 10/9/98 6:07 PM Priority: Normal TO: Sally Gibert at Gov_Anchorage_DGC, Kathryn_Swiderski@law.state.ak.us at CC2MHS1 CC: tinacl@fishgame.state.ak.us at CC2MHS1 Subject: Glacier Bay tentative settlement As you may have heard by now it appears there is a tentative settlement for Glacier Bay fisheries coming out of the appropriations process. It was apparently instigated by Sen. Stevens' office, who worked with Interior; our DC office was not involved, and I found out about it today, now that its purportedly a done deal. The basics are that halibut, salmon and tanner crab fishermen meeting the 6-out-of-ten-years eligibility criteria may fish in the bay except in closed areas, for their lifetimes. The bill language is silent on the outer coast. Fishing for salmon is permitted only October through April. Closed areas include the west arm north of 58 degrees 50 minutes, except for winter trolling. Hopkins, Reid, Tarr, and Geikie Inlet are closed, as is Muir Inlet with the exception of trolling near Garforth Island. Compensation is provided for crabbers, to cover vessels, pots, and six years of income (based on avg. net income over the past several years). Also, the comment period on the NPS regulations is extended till January 15, allowing time for the NPS to revise the regs in accordance with the settlement. I still plan on convening the meeting on the 15th, though it may now be just one day. Molly Ross plans to attend. The cooperative management committee meeting still will take place next Tuesday, in Anchorage. More next week, when hopefully we will know if this really a done deal. -------------------------Original message header: >MAIL FROM:<robertb@fishgame.state.ak.us> >RCPT TO:<sally_gibert@gov.state.ak.us> >DATA >Received: from pop-admin.state.ak.us ([146.63.248.16]) by jnumaill.state.ak.us (Netscape Messaging Server 3.6) with ESMTP id AAA70DA; Fri, 9 Oct 1998 18:08:46 -0800 >Received: from akmaill.state.ak.us ([146.63.242.3]) by pop-admin.state.ak.us (P ost.Office MTA v3.1.2 release (P0205-101c) ID# 0-44072U100L100SO) with SMTP idA AA99; Fri, 9 Oct 1998 18:06:40 -0800 >X-Nvlenv-OlDate-Transferred: 9-0ct-1998 18:07:58 -0800; at AKMAILl.Alaska >To: Kathryn_Swiderski@law.state.ak.us (Kathryn Swiderski) >Cc: tinacl@fishgame.state.ak.us (Cunning, Tina), >Date: 09 Oct 98 18:07:00 KDT >From: robertb@fishgame.state.ak.us (Bosworth, Robert) >Subject: Glacier Bay tentative settlement >Message-ID:<77189AOA34E.AAA70DA@jnumail1.state.ak.us> -------------------------End of message header. .. ---------- [Federal Register: June 3, 1998 (Volume 63, Number 1 06)] [Proposed Rules] [Page 30162] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOC I D:fr03jn98-36] ======================================================================= DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 Glacier Bay National Park, Alaska; Commercial Fishing Regulations and Environmental Assessment AGENCY: National Park Service, Interior. ACTION: Proposed rule and environmental assessment, extension of public comment period. SUMMARY: The National Park Service (NPS) announces that the public comment period for the proposed rule concerning commercial fishing at Glacier Bay National Park and the associated environmental assessment (EA) is being extended 169 days to November 15, 1998. The proposed rule was published on April16, 1997 (62 FR 18547). This is the third extension of the public comment period on the proposed rule. The proposed rule, intended to provide a framework for enhanced review and comment by all interested parties, would implement fair measures to ensure protection of the values and purposes of Glacier Bay NP, including the preservation, enjoyment, and scientific value of the park's unique marine ecosystem. In general, the proposed rule would prohibit all commercial fishing in Glacier Bay proper but provide certain limited exemptions over a 15 year phase-out period, and authorize established commercial fishing in the park's marine waters outside Glacier Bay proper subject to reexamination at the end of 15 years. DATES: Comments on the proposed rule and EA will be accepted through November 15, 1998. ADDRESSES: Comments on the proposed rule and EA should be submitted to: Superintendent, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. Copies of the environmental assessment and an executive summary are available by writing Glen Yankus, National Park Service, Alaska Support Office, 2525 Gambell St., Anchorage, AK 99503-2838. A copy of the Executive Summary for the EA will be available on the park's web site ~lr9~Th=ae~x=t.~=·~~·~~~====~======-=====~========-======---============-=========~P~ at http://www.nps.gov/glba in the management issues section. FOR FURTHER INFORMATION CONTACT: Glen Yankus, National Park Service, Alaska Support Office, (907) 257-2645. Dated: May 28, 1998. Chris Andress, Chief, Ranger Activities Division. [FR Doc. 98-14624 Filed 6-2-98; 8:45am] BILLING CODE 4310-70-P Author: robertb®fishgame.state.ak.us (Bosworth; Robert) at CC2MHS1 Date: 5/8/98 2:59 PM Priority: Normal CC: Sally Gibert at Gov_Anchorage_DGC, Sally Rue at Gov_Juneau_Capitol TO: amkert@sso.org at CC2MHS1, jwkatz@sso.org at CC2MHS1 CC: tinac1®fishgame.state.ak.us at CC2MHS1 Subject: RE: Glacier Bay Comments (latest version In this most recent draft I have slightly changes the end of the second paragraph. We are not saying all fisheries must continue, but that "important fisheries should continue in ways that are compatible with national park resources and values." So in this version I more clearly provide for our future support of a stakeholder solution even if it closes some fisheries. NPS hearing, May 11, 1998 -Proposed Glacier Bay Commercial Fishing Regulations Testimony of Deputy Commissioner Rob Bosworth Thank you for the opportunity to provide testimony at this hearing today. The Alaska Department of Fish and Game has successfully managed fisheries in Glacier Bay National Park for over forty years. In that time there have been oil spills, cruise ship groundings, air pollution incidents, camper fatalities, illegal sewage disposals, whale-and-cruise ship conflicts, and of course profound habitat change through glaciation, isostatic rebound and vegetative succession. But there has been no evidence of harm to the park, its visitors, or its resources resulting from commercial fishing. On the contrary, the commercial fisheries of the bay appear to be sustainable, compatible, and economically viable. This issue is not about a resource that is in jeopardy. And the present management regime is working well; there is not a pressing need for change. There is a healthy cooperative relationship between state and federal resource managers. Accordingly, we do not endorse any of the options presented in the NPS proposed regulations, although Alternative Four, allowing continued commercial fishing, best reflects the state's belief that important fisheries should be allowed to continue, in ways that are compatible with national park resources and values. It should be clear we do not challenge the appropriateness of national parks in general, or of Glacier Bay National Park in particular -the value of parks is not the question; how they are managed is. We are not aware of a management problem now, but Glacier Bay does provide perhaps the best chance in the entire NPS system, maybe in the world, to have a still stronger model of preservation, conservation, compatible use and sustainable communities, all in the context of cooperative state - federal resource management with effective public involvement. But there is no need or basis for viewing commercial fisheries as a problem or a conflict; this is a choice being made by the National Park Service. The complex of differing uses of Glacier Bay, the ways they can be fully compatible with park purposes, the opportunities for cooperative research, represent a global model for enlightened park and natural resource management. We are ready to help move park management in this direction, but the proposed regulations do not do that. Ironically, national park managers worldwide are now beginning to acknowledge the importance of establishing better integration with the purpose of parks and the needs of local residents. Park managers increasingly describe the importance of having support by affected • interest groups, in order to meeting their park's management objectives. At Glacier Bay, buzz words like "partnership," "cooperation," and "collaborative stewardship" attach to NPS planning documents like sea lice on a salmon. Yet the proposed regulations do little to induce local support, partnership, or collaboration. The preferred alternative represents an unequivocal statement of purpose and policy: that there is no place in Glacier Bay for the commercial fisheries that have been the lifeblood of the Glacier Bay region for a century and more. The NPS has been an active participant in the conduct of the commercial fisheries in and around Glacier Bay since the park's inception. Bartlett Cove has been a fueling site, harbor, and point of sale for fish products for generations of fishermen. Park visitors have enjoyed occasional contact with the fishing fleet, just as they have enjoyed fresh seafood in the concession's dining room. Recent NPS planning documents acknowledge the existence and legitimacy of the fisheries. Special consideration has been granted to fishing boats, regarding vessel entries and marine mammal interactions. There is no evidence that suggests fisheries are not well managed and sustainable. Nonetheless, with a recent policy shift, the NPS seeks to deny the legitimacy of the. same activities they so recently considered compatible. No one should be surprised at the resentment, and the acrimony these proposed regulations have inspired among a great many Southeast Alaskans, and not only fishermen. We have on many occasions stated our unequivocal claim to title of the submerged lands of Glacier Bay and our belief that such title provides the legal basis for continued state management of fisheries and other surface activities. The Park Service has taken an opposing view, and both sides in this dispute acknowledge that resolving the issue through the courts, while remaining a viable option, would involve many years of litigation during which time the immediate issues would not be addressed. These considerations alone argue for taking a progressive approach to the issues -agreeing to find ways to work together, so that when the question of title is decided, there will be no reason to change the way the park is being managed. Any other approach virtually guarantees ongoing uncertainty and probable conflict well onto the future. One specific point I want to make about the Environmental Assessment, is that the economic impacts of the preferred alternative are a fundamental consideration. The NPS's own calculations place the value of the Glacier Bay and outer coast commercial catch at $14 million, by far the largest economic sector in several communities in the area. Even if a portion of this value were retained by some fishermen relocating to other fishing areas, the short and long term economic impacts to Southeast Alaska in general and Icy Strait in particular would be substantial. It is our view that these impacts are not adequately recognized in the NPS analysis and its selection of a preferred alternative. Since 1995 the State of Alaska has facilitated a stakeholder process that by all accounts has provided the definitive Alaska public participation process for this issue. As with previous such efforts, it quickly became clear to all parties that there is no. credible basis for including the outer coast and Icy Strait fisheries in these regulations. With that point established, the Inner Bay issues have been the appropriate focus of the stakeholder process. In the course of the past eight months of meetings the Glacier Bay Work Group has defined a vision for Glacier Bay fisheries management that is far more detailed, more thoroughly grounded in local knowledge, better informed by science, better integrated with the state's fisheries management programs, and more sensitive to the historical, social, and conservation context for the park than are the • proposed rules . In its effort to reconcile different perspectives, the group explored alternatives in fisheries management and research, and in NPS perceptions and goals. I believe you have a copy of the status report of the Glacier Bay Work Group process. Although there has been substantial agreement on a great many important issues, key details remain undecided, including whether at a future date some fisheries must be phased out entirely in Glacier Bay, as the NPS proposes. It is our view that the NPS must formally recognize the legitimacy of that group and adopt its vision. The Work Group's final report should provide the basis for resolving the issue, through coordinated legislative and regulatory action. The rulemaking process should accommodate the scheduling needs of the Work Group and not undermine its effectiveness through premature action. Thank you again for the opportunity to comment on the proposed regulations. -----Original Message----- From: Anna Kerttula Sent: Friday, May 08, 1998 8:48 PM To: Bosworth, Robert Subject: Glacier Bay Comments Rob, If you get a chance could you send us a copy of your revised draft? I'll be out of the office on Monday but John would like to review it. Thanks Anna P.S. re: the recent e-mails on Dive Fisheries: Apparently I've gotten crosswise with Benton. Not my intention at all. ( -------------------------Original message header: >MAIL FROM:<robertb®fishgame.state.ak.us> >RCPT TO:<Sally_Gibert®gov.state.ak.us> >RCPT TO:<Sally_Rue®gov.state.ak.us> >DATA >Received: from akmail1.state.ak.us ([146.63.242.3]) by pop1.state.ak.us (Post.O ffice MTA v3.1.2 release (P0205-101c) ID# 0-44072U100L100SO) with SMTP id AAA167 ; Fri, 8 May 1998 14:58:45 -0800 >X-Nvlenv-01Date-Transferred: 8-May-1998 14:57:57 -0800; at AKMAIL1.Alaska >To: amkert®sso.org (Anna Kerttula), jwkatz@sso.org (John Katz) >Cc: Sally_Gibert®gov.state.ak.us (Gibert, Sally (office)), Sally_Rue@gov.state. ak.us (Sally Rue), tinac1®fishgame.state.ak.us (Cunning, Tina) >Date: 08 May 98 14:59:00 KDT >From: robertb®fishgame.state.ak.us (Bosworth, Robert) >Subject: RE: Glacier Bay Comments (latest version -------------------------End of message header. Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION COMMENTS TO NPS PROPOSED RULEMAKING AT 62 FED. REG. 18547 (APRIL 16, 1997) I. NPS lacks authority to regulate commercial fisheries as proposed. The state objects to the National Park Service's (NPS) assertion in the proposed rule that it may regulate commercial fishing activities occurring in state owned and regulated marine waters adjacent to Glacier Bay National Park. The state has consistently objected to NPS' previous attempts to grant itself this extraterritorial authority in rulemaking. See State comments · dated February 2, 1996 (opposing proposed rule at 60 Fed. Reg. 62233); Alaska's comments dated Nov. 1, 1991 (regarding proposed rule published Aug. 5, 1991). The state reiterates its objections to NPS' efforts to extend regulatory jurisdiction to lands and waters that the state lawfully own and manages, and here incorporates by reference its previous comments on this ISSUe. Under the constitutional doctrine of equal footing, confirmed by the Submerged Lands Act, the Alaska Statehood Act, and the Alaska Constitution, the state owns and therefore is responsible for the management of all water columns, shorelands, tidelands, and submerged lands, including the resources located within or on such lands and waters. Pursuant to this responsibility, the state presently manages water uses, access, and activities in marine waters in and adjacent to Glacier Bay, including commercial fishing. NPS' assertion of authority to supersede state action is not permitted by the Alaska National Interest Lands Conservation Act (ANILCA) or other applicable law. One of Congress' primary purposes in enacting ANILCA was to preserve vast quantities of lands and waters in Alaska, which Congress implemented in part by creating "conservation system units" (CSUs). 16 U.S.C. § 3101. CSUs include all units of the National Park System in Alaska. 16 U.S.C. § 3102(4). However, not all lands within the national park units are part ofthe CSU. ANILCA states that only the lands within the boundaries of any conservation system unit that are public lands are included as a portion of the unit. 16 U.S.C. § 3103(c). ANILCA further provides that those lands not included within the conservation system unit are not subject to federal regulation: No lands which, before, on, or after the date of enactment of this Act, are conveyed to the State, to .any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units .... ld The legislative history of ANILCA § 103(c) reinforces Congress' intent to exclude lands not owned by the United States from conservation system unit regulations. Senator Stevens explained that "only public lands (and not State or private lands) are to be subject to the Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION conservation system unit regulations applying to public lands." 126 Cong. Rec. S15129-32 (daily ed. Dec. 1, 1980). Legislative history also establishes that Congress took this action fully aware of Kleppe v. New Mexico, 426 U.S. 529 (1976) and its progeny. Congress directly and knowingly limited federal regulatory authority to "public lands" within conservation system units and specifically exempted inholdings from regulation. 16 U.S.C. § 3103(c). Therefore, because any submerged lands underlying navigable waters within national park boundaries in Alaska are "inholdings" belonging to the state, see 43 U.S.C. § 1311(a) and Utah Div. of State Lands v. United States, 482 U.S. 193 (1987), federal regulation does not apply to these waters and NPS does not have authority to regulate commercial fishing in these waters. In recognition of its limited authority over nonfederallands, NPS for many years restricted applicability of its regulations to federally owned lands within park boundaries. See 46 Fed. Reg. 31836, 31843 (June 17, 1981) (ANILCA §§ 103(c) and 906(o) restrict the applicability ofNPS regulations to federally owned lands within park boundaries; therefore NPS regulations in Alaska apply only to federally owned lands). In 1996, in spite of ANILCA's language, NPS reversed course and adopted regulations purporting to regulate navigable waters and non- federally owned submerged lands within park boundaries. This action exceeds the scope ofNPS' authority. The state encourages ongoing communication and cooperation between NPS and the state regarding activities such as commercial fishing that occur in Glacier Bay. The state believes that the state and federal governments can successfully address and resolve issues of particular concern through ongoing dialogue and cooperation. Where action is necessary, it should be implemented by the appropriate state or federal regulatory authority. However, NPS may not assume the state's regulatory authority over fisheries management and may not exert jurisdiction as proposed. II. Existing commercial fisheries do not conflict with NPS' statutory obligations. In addition to the statutory mandate of ANILCA, the NPS Organic Act sets forth principles that must be evaluated before NPS takes action. The Organic Act authorizes NPS to manage park system units "to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." NPS Organic Act, 16 U.S.C. § 1. The Act further directs that the NPS shall not exercise authority "in derogation of the values and purposes" for which park units were established, except as directly and specifically authorized by Congress. 16 U.S.C. § 1a-1. Commercial fisheries have co-existed successfully with Glacier Bay National Monument's --and later the park's --values and purposes since the creation of the monument -2- Dept. of Law DRAFT May 4 , 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION and the park. Nothing has changed to prompt a contrary perspective . Continuation of these fisheries will not derogate the park's values and purposes , nor will it impair future enjoyment of the park. NPS therefore need not restrict or eliminate these activities . A. The Glacier Bay area has a long history of sustaining commercial fisheries consistent with the values and purposes of the park and preserve. [ADFG Issue--some ideas follow :] -explain Glacier Bay's fishing history, resulting uniqueness and culture ; fact that fishery resources are healthy ; -Commercial fisheries occurring within the boundaries of Glacier Bay National Park and Preserve are conservatively managed by the State of Alaska [and NMFS or IPHC?]. - Overview of state mgt and responsiveness to issues of concern; reliance on sound science ; desire to maintain healthy fish stocks and habitat. -magnitude of the fisheries ; small scale nature of fishing operations (no factory trawlers ) (most operations are famil y owned and operated businesses .... ) -Status of stocks ; no evidence of adverse impacts by fisheries ; no impairment for use and enjoyment of future generations ; -no evidence of adverse impact on preservation of park resources and values; NPS data does not show any measurable or significant conflict with visitor enjoyment based on visitor use surveys. Note: NPS' 1985 permanent regulations for the protection of the humpback whale reiterated the conclusion of the National Marine F isheries Service (NMFS) that commercial fishing vessels and fishing activities did not appear to disturb the whales . See 50 Fed. Reg . at 19883 (May 10 , 1985); 49 Fed. Reg. at 15486, 15493 (NMFS 1983 and 1979 Biological Opinions). Accordingly , in 1985, NPS did not believe that broad restriction commercial fishing in Glacier Bay was necessary . -other response s to NPS justifications for its rule B. There is no statutory prohibition on commercial fishing in Glacier Bay. Applicable la w als o doe s not requ ire r estriction on existing levels of commercial -3 - Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION fishing in non-wilderness areas in and around Glacier Bay. On this issue, the proposed rule incorrectly states that regulation and legislation have prohibited commercial fishing in Glacier Bay since 1966. Just prior to publication of the proposed rule, the United States Court of Appeals for the Ninth Circuit clarified that commercial fishing in non-wilderness areas of Glacier Bay is not statutorily prohibited. Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065 (9th Cir. 1997). Following its review of the NPS Organic Act, ANILCA, and the Wilderness Act, the court concluded that commercial fishing is statutorily prohibited in designated wilderness areas, but not in other waters in and adjacent to Glacier Bay. The court therefore found that no statutes contradict NPS' position that it has discretion to permit commercial fishing in non-wilderness areas. 108 F.3d at 1071. Further, the court clarified that no Park Service regulations have found that commercial fishing is in derogation of park values and purposes. /d. at 1072. Accordingly, the NPS retains discretion to permit commercial fishing consistent with agency objectives and obligations. In the proposed rule, NPS suggests that fisheries in and adjacent to Glacier Bay should be closed because ANILCA specifically protected commercial fishing activities in the Dry Bay area of Glacier Bay National Preserve, but it did not reference such activities in other areas. See ANILCA § 205, 16 U.S.C. § 410hh-4. The court in the Alaska Wildlife Alliance case rejected this view, however, and noted that this statutory language merely identifies areas where NPS may not prohibit commercial fishing activities. 108 F.3d at 1071. The language does not reflect Congressional intent to restrict commercial fisheries elsewhere. This provision of ANILCA indeed could not support NPS' assertion. Congress enacted ANILCA § 205 at the time it created Glacier Bay National Preserve in order to assure continuation of shore-based commercial fishing activities occurring in the preserve. Congress therefore specifically referenced continued use of public lands for "campsites, cabins, motorized vehicles, and aircraft landings on existing airstrips, directly incident to the exercise of [valid commercial fishing] rights or privileges." 16 U.S.C. § 410hh-4. Congress did not address preservation of actual fishing operations in this area, nor did it need to, since commercial fisheries in Dry Bay generally occur outside the preserve boundaries and are not subject to any NPS authority. Because significant shore-based activities in support of commercial fishing historically have not occurred in Glacier Bay National Park, Congress had no reason to specifically protect these activities in the park. [confirm this] Its action to protect shore-based fishing activities in the preserve does not suggest any intent to restrict or eliminate commercial fisheries in waters in and adjacent to Glacier Bay. The Alaska Wildlife Alliance decision clarified NPS' discretion to permit commercial fishing by regulation. As discussed below, NPS already has exercised this discretion and has long recognized existing fisheries in and adjacent to Glacier Bay. The state further believes that existing fisheries in non-wilderness waters are consistent with governing -4- Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION Park Service mandates and should not be limited or eliminated. C. "No Action" does not require closure of commercial fisheries. Despite the fact that commercial fishing occurring in and adjacent to Glacier Bay is not subject to NPS jurisdiction, NPS asserts that enforcement of existing regulations would require closure of these fisheries. The proposed rule and EA therefore indicate that "no action" in Glacier Bay would necessitate immediate closure of all commercial fishing within park boundaries. Although ef(isting NPS regulations are not a model of clarity, the state does not agree that existing regulations necessarily prohibit commercial fishing. To the contrary, NPS has recognized and authorized ongoing commercial fishing in waters in and adjacent to Glacier Bay for many years. Accordingly, "no action" would result in continuation of existing commercial fisheries, not immediate closure. Closure of these fisheries pursuant to NPS regulation would require specific revision of the regulations. The proposed rule asserts that NPS prohibited commercial fishing in Glacier Bay by regulation in 1966, when it deleted a provision that specifically authorizing commercial fishing in Glacier Bay National Monument. However, the 1966 regulations only prohibited commercial fishing in fresh water and were inapplicable to marine fisheries. See 31 Fed. Reg. 16653 (December 29, 1966) (codified at 36 C.P.R. 2.130)(2) (1967)) [confirm year]. Years later, in 1983, NPS agreed that its regulations were inconsistent by only prohibiting commercial fishing in fresh waters. 48 Fed. Reg. 30256 (June 30, 1983). It therefore revised its general regulations to expressly prohibit commercial fishing, except where specifically authorized. ld. at 30265, 30283 (codified at 36 C.P.R. § 2.3(d)(4)). Since NPS had already specifically recognized and authorized commercial fishing in Glacier Bay, however, this provision did not impact Glacier Bay fisheries. NPS also asserted in hindsight that its general regulation prohibiting persons from "engaging in or soliciting" a business in a park unit without NPS authorization prohibited commercial fishing activities in Glacier Bay's marine waters. However, NPS' park specific actions in Glacier Bay also superseded this general prohibition. There can be no question that NPS knew of and condoned ongoing commercial fishing in Glacier Bay both after 1966 and after 1983. In 1980, for example, NPS adopted regulations pursuant to Endangered Species Act authority to protect endangered humpback whales. These regulations specifically recognized and validated commercial fisheries. See 45 Fed. Reg. 85741 (December 30, 1980) (restricting commercial operators from fishing for, or retaining if caught, species on which humpback whales feed); see also 45 Fed. Reg. 85480 (December 29, 1980) (proposing to restrict commercial harvest of Pacific herring and to prohibit bottom trawling in Glacier Bay in order to protect humpback whales). In 1983, NPS proposed closure of wilderness waters to commercial fishing, and to prohibit trawling to -5- Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION protect whales, but did not seek to limit other fisheries. 48 Fed. Reg. 14978 (April 6, 1983). NPS reaffirmed its approval of ongoing commercial fisheries in Glacier Bay's 1984 General Management Plan: Commercial fishing has been an activity of considerable economic importance in park and preserve waters in recent years. Cross Sound, Icy Strait, the outer coast (Gulf of Alaska), and the Dry Bay vicinity have been the most important areas. Glacier Bay proper, the park's principal visitor use area and the focus of most park visitor activities, is also considered an important fishing area that is used by commercial fishermen . . . . Traditional commercial fishing methods include trolling, long lining and pot fishing for crab, and seining (Excursion Inlet only) in park waters and setnet fishing in preserve waters (Dry Bay area) .. The Alaska Department of Fish and Game will continue to regulate commercial fishing in Glacier Bay National Park and Preserve, which is consistent with ANILCA and state law. Traditional commercial fishing practices will continue to be allowed throughout most park and preserve waters. However, no new (nontraditional) fishery will be allowed by the National Park Service. Halibut and salmon fishing and crabbing will not be prohibited by the Park Service. Commercial fishing will be prohibited in wilderness waters in accordance with ANILCA and the Wilderness Act. Glacier Bay General Management Plan, September 1984, at 51. NPS again acknowledged commercial fishing as an authorized activity in Glacier Bay in its permanent regulations for the protection of the humpback whale. See 49 Fed. Reg. 15482 (April 18, 1984) (proposed rule); 50 Fed. Reg. 19880 (May 10, 1985) (fmal rule) (codified at 36 C.P.R. § 13.65). These regulations defined "~ommercial fishing vessel" to mean "any motor vessel conducting fishing activities under the appropriate commercial fishing licenses as required and defmed by the State of Alaska." 36 C.P.R. § 13.65(b)(1) (1997) (emphasis added). Section 13.65(b)(3) expressly exempted from the motor vessel permit requirement commercial fishing vessels "engaged in commercial fishing within Glacier Bay, provided that commercial fishing vessel use levels remain at or below their 1976 use levels." 36 C.P.R. § 13.65(b)(3)(iii)(A) (1995) (emphasis added). The vessel operating restrictions also exempted commercial fishing vessels "actively trolling or being used to set or pull long lines." 36 C.P.R. § 13.65(b)(4) (1995). When the Park Service intended to restrict particular commercial fisheries or gear types in Glacier Bay to protect endangered whales, it did so by adopting regulations specifically prohibiting only those fisheries or gear types. See 36 C.P.R. § 13.65(b)(5) (prohibiting fishing for or retaining if caught, herring, capeline, sandlance, -6- ~· . . Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DIST~UTION euphausids or shrimp); 36 C.F.R. § 13.65(b)(6) (prohibiting trawling in Glacier Bay). These regulations remained unchanged unti11996, when NPS apparently adopted insignificant changes to several sections referencing commercial fishing vessels. See 36 C.F.R. §§ 13.65(b)(2)(iii)(D), 13.65(b)(3)(i) and 13.65(b)(3)(iv)(D)(1). These revisions were never noted or addressed in the Park Service's Federal Register publications, in which NPS assured the public that its 1996 actions did not affect commercial fishing. NPS stated its intent to address commercial fishing issues in separate rulemaking and affirmed that "this rule continues the exemption that commercial fishing vessels actually engaged in commercial fishing have from the seasonal entry and daily use limits that apply to other vessel types." 61 Fed. Reg. 27008, 27013, 27015 (May 30, 1996). Given these assurances--and NPS' failure to notify the public of its proposed modification of fishing-related regulatory language --the current vessel management regulations did not affect commercial fishing rights or regulation in Glacier Bay. Therefore, existing regulations continue to provide a park specific exemption for Glacier Bay commercial fisheries. 1 The National Park Service's express authorization of commercial fishing in its park-specific regulations, coupled with its history of recognizing and assuring continuation of commercial fishing in this area, expressly exempts these fisheries from the Park Service's general regulations prohibiting commercial fishing in national park units. See 36 C.F.R. §13.2(c) (NPS' special regulations for specific park areas, like those for Glacier Bay, amend the general and Alaska-specific regulations). These circumstances hardly support NPS' claim that it prohibited all commercial fishing in Glacier Bay in 1966, or that commercial fisheries are not permitted by existing regulations. To the contrary, these regulations_reflect NPS' specific recognition and authorization of these fisheries in Glacier Bay. Therefore, NPS incorrectly asserts that "no action" would require immediate closure of existing commercial fisheries. Restriction or elimination of these fisheries is not necessary to comply with NPS' statutory mandates or its existing regulations. 1 To the extent NPS would now contend that its 1996 regulatory revisions substantively affected commercial fishing in Glacier Bay, the 1996 revisions would be unlawful. -7- Dept. of Law DRAFT May 4 , 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION III. NPS should not finalize regulations until the stakeholder process is completed. [ADFG issues--some ideas follow:] Timing: NPS should not finalize any rules until stakeholder process is complete. -Address workgroup goals, status. Import of leg islation to formalize the extent of permissible fishing in park, clarify state mgt of fishing, provide mechanism for coop between NPS and state; avoid prejudice to state's ownership claims. Summarize ADFG views on relevant workgroup issues, themes, continuing NPS statements with which the state disagrees. [ie , that "natural" does not include human interaction; that science is not sufficient indicator of stock health; philosophy conflicts ; that no-take zones can be justified w/o scientific goals, means with which to measure changes] These comments are a good place to summarize ADFG's views for the record and rebut statements with which we disagree. Summarize history as ADFG knows it to rebut NPS' version. Importance of continued scientific study, in cooperation with ADFG?? Peer review ? While workgroup offers many possible solutions, it is not sufficient for NPS to adopt these suggested measures in regulation due to the ownership and jurisdictional conflicts between state and NPS. IV. Numerous provisions of the proposed rule raise concerns. [Some ideas follow] A. State-Federal cooperative management process: Explain concerns, limitations on the kind of "cooperative management" the state could entertain. B. Phaseout/Buyout issues: Buyout : The proposed rule indicates that , subject to the availability of funds, NPS or a third party may offer to purchase and retire commercial fishing permits from willing sellers during the phase out period . C . "Outer Waters" fisheries: The proposed rule authorizes continued commercial fishing in the marine waters outside the bay proper, subject to a reexamination at the end of 15 years. The rule would restrict commercial fishing in these waters to established fisheries and gear types, governed by a "cooperative fisheries management plan" developed with the state and implemented by the Alaska Board of Fisheries. The Secretary would "cooperatively ensure adherence to the plan under the provisions of 36 CFR 2.3(a) and 13.21(b)." D. Issues relating to specific species or fisheries : -8- "' c • (. Dept. of Law DRAFT May 4, 1998 PRIVILEGED AND CONFIDENTIAL NOT FOR DISTRIBUTION E. Lituya and Dundas Bays: Although the proposed rule does not place additional limitations on commercial fishing in outer waters, NPS seeks comments on such limitations for special cases such as Lituya Bay and Dundas Bay. F. NPS formula for eligibility to participate in fisheries during any phaseout? G. Other issues V. Environmental Assessment and economic impacts. A. EA: Did NPS accurately assess impacts, information before it? Did it fail to consider significant info or impacts? Are its conclusions reasonable in light of the info? B. Economic impacts discussion. -9- [Federal Register: April 30, 1998 (Volume 63, Number 83)] [Proposed Rules] [Page 23706-23707] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr30ap98-22] ============================================= DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 Glacier Bay National Park, Alaska; Commercial Fishing Regulations and Environmental Assessment AGENCIES: National Park Service, Interior. ACTION: Availability of Commercial Fishing Environmental Assessment (EA) and public comment period extension for Proposed Rule and EA. SUMMARY: The National Park Service (NPS) announces the availability of the Environmental Assessment (EA) and extension of the public comment period for the proposed rule concerning Glacier Bay National Park commercial fishing (62 FR 18547). The public c omment period for the EA and proposed rule will end June 1, 1998. This is the second extension of the public comment period on the proposed rule. This document also announces the dates and locations of open houses and public hearings to solicit comments on the proposed rule and EA which are listed in the under Supplementary Information section, below. DATES: Comments on the proposed rule and EA will be accepted through June 1, 1998. For dates of open houses and hearings, see Supplementary Information. ADDRESSES: Comments on the proposed rule and EA should be submitted to the: Superintendent, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. For locations of open houses and hearings, see Supplementary Information. FOR FURTHER INFORMATION CONTACT: Copies of the environmental assessment and an executive summary are available by writing Glen Yankus, National Park Service, Alaska Support Office, 2525 Gambell St., Anchorage, AK 99503-2838, or calling (907) 257-2645. A copy of the Executive Summary for the EA will be available on the park's web site at http:// www.nps.gov/glba in the management issues section. SUPPLEMENTARY INFORMATION: Open houses and public hearings are scheduled on the dates and at the time and locations indicated below: Gustavus .......... May 4.......... Gustavus Library. Gustavus School Hoonah ............ May 5 .......... Council Chambers. Pelican ........... May 7.......... Community Hall .. . 7:00-10:00 p.m. Elfin Cove ........ May 8 .......... School Library .. . . Juneau ............ May 11 ......... Egan Room, Centennial Hall. Sitka............. May 12. .. .. .. . . Mausseau Room, Centennial Seattle ........... May 14 ......... Klondike Gold Rush, NHP Theater. 7:00-10:00 p.m. 3:00-5:00 p.m. (open house). 7:00-10:00 p.m. 3:00-5:00 p.m.; 7:00-10:00 p.m. 3:00-5:00 p.m.; 4:00-6:00 p.m.; 7:00-10:00 p.m . 3:00-5:00 p.m.; 7:00-10:00 p.m. 3:00-5:00 p.m.; 7:00-10:00 p.m. 3:00-5:00 p.m.; The first 2 hours of each meeting will be an open house, discussion session. Representatives of the NPS will be available to answer questions and hear your comments in a more informal setting. The rest of the meeting will be a public hearing; a brief in traduction by the hearing facilitator will be followed by public testimony on the plan. The environmental assessment evaluates the proposed action and four alternatives for managing commercial fishing in the marine waters of the park. Page 1 The proposed action (Alternative One) would allow commercial fishing by qualified fishers in non-wilderness marine waters of Glacier Bay proper to continue for 15 years; commercial fishing in wilderness waters would end at the time the regulations go in to effect. Commercial fishing would generally be authorized to continue in non-wilderness waters outside Glacier Bay proper under a cooperative fisheries management plan developed by the NPS and State of Alaska. Alternative Two-No Action-This alternative would enforce the existing statutory and regulatory prohibitions regarding commercial fishing activities within the marine waters of the park. Enforcement of NPS regulations would result in the immediate cessat ion of all commercial fisheries in all park waters with no opportunity to phase out fishing through limited exemptions. Alternative Three-This alternative incorporates marine reserve concepts consistent with the park's purposes. Specifically, this alternative would focus on protecting those species for which the park serves as an appropriate marine reserve (i.e., residen t species) while allowing continued harvest of species that are subject to harvest outside park waters (i.e., transient species). Alternative Four-This alternative would allow local individuals to continue commercial fishing throughout Glacier Bay National Park. This alternative would prohibit only those fisheries that cannot be sustained or that cause unacceptable habitat degrada tion. Alternative Five-This alternative would implement a fisheries plan described in a NPS proposed regulations released in 1991. It would end all commercial fishing activities in the park after seven years, and until that time would allow commercial fishing in non-wilderness waters by traditional methods. Dated: Apri116, 1998. Paul R. Anderson, Acting Regional Director, Alaska Region. [FR Doc. 98-11080 Filed 4-29-98; 8:45 am] BILLING CODE 4310-70-P _I) • .. ---. ·oFFICE OF THE GOVERNOR OFFICE OF MANAGEMENT AND BUDGET DIVISION OF GOVERNMENTAL COORDINATION d SOUTHCENTRAL REGIONAL OFFICE 3601 •c• STREET, SUITE 370 ANCHORAGE, ALASKA 99503-5930 PH: (907) 269-7470/FAX: (907) 561-6134 April 28, 1998 Ms. Pat Phelan Acting Superintendent [J CENTRAL OFFICE P.O. BOX 110030 JUNEAU, ALASKA 99811-0030 PH: (907) 465-3562/FAX: (907) 465-3075 Glacier Bay National Park and Preserve P.O. Box 140 Gustavus, Alaska 99827 Dear Ms. Phelan: TONY KNOWLES, GOVERNOR 0 PIPELINE COORDINATOR'S OFFICE 411 WEST 4TH AVENUE, SUITE 2C ANCHORAGE, ALASKA 99501-2343 PH: (907) 271-4317/FAX: (907) 272-0690 The State of Alaska is in receipt of the Draft Environmental Assessment (EA) addressing Commercial Fishing at Glacier Bay. The State respectfully requests an extension of the public comment period on this document and, by association, the draft regulations published April 16, 1997. The State believes an extension of the comment period for the EA is warranted and appropriate because: • The draft EA is a substantial document (approximately 400 pages) requiring close scrutiny · and technical evaluation. • The late spring release of the document poses problems for agency field staff and fishermen who already have very full schedules. • Informal stakeholder discussions are continuing. Forcing closure of the comment period at this time could constrain or undermine efforts to facilitate solutions. While we recognize the draft regulations have been available for over a year, the draft EA is a new document with important ramifications. We believe additional time to evaluate the EA in the context of the regulations, and vice versa, would be useful to all those with an interest in a solution to this long standing issue. Ideally, we recommend a five month extension for both the EA and regulations to November 15, 1998 to accommodate the schedules of agency field staff and commercial fishermen who are critical to this process. 1 01-A35LH .-.... :-.~,·.e:c ::: . ·[ Thank you for your consideration. Please contact Rob Bosworth, Deputy Commissioner, Alaska Department ofFish and Game, if you wish to discuss this request. :;rely, ~j;j Salt~ State CSU Coordinator cc: Molly Ross, Special Assistant, Assistant Secretary for Fish, Wildlife and Parks Deborah Williams, Special Assistant, Secretary of the Interior Robert Barbee, Regional Director, National Park Service Fran Ulmer, Lieutenant Governor John Katz, Governor's Office, Washington, D.C. Bruce Botelho, Attorney General Frank Rue, Commissioner, Department ofFish and Game John Shively, Commissioner, Department ofNatural Resource Dale Kelley, Allied Fishermen of Southeast 2 FOR YOUR INFORMATION April29, 1998 from Sally Gibert, DGC cc: Diane Mayer, DGC-Jun Tina Cunning, DFG-Anch Terry Haynes, DFG-Fbx Patty Bielawski, DNR-Anch Elizabeth Barry, AG's-Anch Lorraine Marshall, DGC-Jun Anna Kertulla, Gov's Office-WDC Stan Leaphart, CACF A-Fbx MEMORANDUM STATE OF ALASKA TO: State CSU Contacts See Distribution List Office of the Governor Division of Governmental Coordination 3601 C Street, Suite 370 Anchorage, Alaska 99503 DATE: April13, 1998 FROM: Sally Gibert ~ State CSU Coordinator TELEPHONE: 907-269-7477 907-561-6134 FAX: Division of Governmental Coordination EMAIL: Sally_ Gibert@gov.state.ak.us SUBJECT: Glacier Bay EA and Regulations concerning Commercial Fishing FOR YOUR REVIEW With this memo, or directly from the National Park Service, you should have received a copy of the· Environmental Assessment concerning Commercial Fishing at Glacier Bay. This EA accompanies the draft regulations which were issued April 16, 1997. The proposal in the draft regulations is written up as the preferred alternative in the EA. The deadline for comments on the draft regulations has been extended to June 1. The EA deadline is also June 1, 1998. No additional comment extensions are anticipated. Please review this document and complete your review of the April 1997 regulations. Combined comments on the regulations and EA are due to this office no later than 10:00 am Monday, May 18, 1998. Please call or email if you have any questions. If you have not received you copy of the EA yet, please let me know. If you just have a copy of the Executive Summary and wish to receive a copy of the full EA (about 400 pages), please let me know as additional copies are available from the NPS. cc: Diane Mayer, DGC-Jun (Exec Summary) Tina Cunning, DFG-Anch (memo only) Rob Bosworth, DFG-Jun (memo only) Terry Haynes, DFG-Fbx (copy enclosed) Patty Bielawski, DNR-Anch (copy enclosed) Tim Wingerter, DEC-Fbx (Exec Summary & regs) Elizabeth Barry, AG's-Anch (memo only) Sally Rue, Lt. Gov's Office-Jun (Exec Summary) Anna Kertulla, Gov's Office-WDC (Exec Summary) Lorraine Marshall, DGC-Jun (Exec Summary & regs) Stan Leaphart, CACF A-Fbx (memo only) NEWS RELEASE u.s. department of the interior nationa~ • serv1ce ~ April 10, 1998 For Immediate Release -ANCHORAGE OMS GOV ERNMENTAL COORDINATION CONTACT: John Quinley (907) 257-2696 Environmental Assessment on Glacier Bay Fishing Available An environmental assessment addressing the effects of a proposed federal regulation and alternatives regarding the future of commercial fishing in Glacier Bay National Park is available for public review . Public hearings on the proposed rule and Environment Assessment are scheduled in May. The public comment period ends June 1. NPS regulations have prohibited commercial fishing in the park since 1966, and the Wilderness Act has prohibited commercial fishing in the wilderness waters within Glacier Bay National Park since 1980 . Commercial fishing, however, has continued in both wilderness and non-wilderness areas ofthe park. Since 1990, several attempts have been made to resolve the issue through litigation, administrative rulemaking and legislation . Continued interest in resolving the issue led NPS to develop and publish a proposed rule on commercial fishi ng on April 16 , 1997 . The environmental assessment evaluates the proposed rule and four alternatives for managing commercial fishing in the marine waters of the park. The proposed action would allow commercial fis hi ng in non-wilderness marine waters of Glacier Bay proper to continue for 15 years ; commercial fishing in wilderness waters would end at the time the regulations go into effect. Commercial fishing would generally be authorized to continue in non-wilderness waters outside Glacier Bay proper under a cooperative fisheries management plan developed by the NPS and state of Alaska . The four alternatives to the proposed action are : Alternative Two/No Action-This alternative would enforce the existing statutory and regulatory prohibitions regarding commercial fishing activities within the marine waters of the park. Enforcement ofNPS regulations would result in the imm ediate cessation of all commercial fisheries in all park waters with no opportunity to phase out fishing through limited ex emptions . --MORE-- Alaska Region • Anchorage, Alaska Alternative Three -This alternative incorporates marine reserve concepts consistent with the park's purposes. Specifically, this alternative wouid foc us on protecting those species for which the park serves as an appropriate marine reserve (i .e., resident species) while allowing continued harvest of species that are subject to harv ~ side ark waters (i .e ., transient species). . .... I Alternative Four-This alternative would allow local ind ividuals to continue commercial fishing throughout Glacier Bay National Park.. This· alternative would prohibit only those fisheries that cannot be sustained or that cause unaccept able habitat degradation . Alternative Five -This alternative would implement a fisheries plan described in a NPS proposed regulations released in 1991 . It would end all commercial fishing activities in the park after seven years, and until that time would allow commercial fishing in non-wilderness waters by traditional methods . Open houses and public hearings are planned in seven communities in May. The meetin gs are scheduled as follows : Community Date Location Time Gustavus May4 Gustavus Library 3 :00-5 :00 p.m . (open house) Gustavus School 7 :00-10 :00 p .m . Hoonah MayS Council Chambers 3 :00-5 :00 p.m .. ; 7 :00-10:00 p .m .. Pelican May7 Community Hall 3:00-5 :00 p .m.; 7 :00-10 :00 p .m . Elfin Cove MayS School Library 4 :00-6:00 p .m .; 7 :00-10 :00 p .m . Juneau May 11 Egan Room, Centennial Hall 3 :00-5:00 p.m.; 7 :00-10 :00 p .m . Sitka May 12 Mausseau Room, Centennial 3 :00-5 :00 p .m .; 7 :00-10 :00 p.m . Seattle May 14 Klondike Gold Rush NHP Theater 3 :00 -5 :00 p.m .; 7 :00-10 :00 p .m . Further information on the proposals, and copies of the environmental assessment and an executive summary are available by writing Glen Yankus, National Park Service, Alaska Support Office, 2525 Gambell St., Anchorage, AK 99503-2838 , or calling {907) 257-2645. A copy of the Executive Summary for the EA will be available on the park's web site at http ://www.nps .gov/glba. Comments on the EA or proposed rule should be addressed to the Superintendent, Glacier Bay National Park and Preserve, P . 0. Box 140, Gustavus, Alaska 99826 by June 1, 1998 . -NPS- United States Department of the Interior IN REPLY REFER TO: Dear Reader: NATIONAL PARK SERVICE Alaska Regional Office 2525 Gambell Street, Room 107 Anchorage, Alaska 99503-2892 10)~ ~ u w ~ IJI)L NIR-91& ANcHORAGE OMS J GOVERNM£NTAI. cooRDINAnON The National Park Service (NPS) has prepared a Commercial Fishing Environmental Assessment (EA) for Glacier Bay National Park and is soliciting your review and comments. The enclosed EA describes five alternatives for managing commercial fishing in the marine waters of Glacier Bay National Park and examines each alternative's potential effects on park resources and commercial fishing. NPS previousl y published proposed regulations , described as the pre ferred alternative in the EA, on commercial fishing for Glacier Bay National Park on April16, 1997. We invite all interested individuals and groups to comment on this EA and the Proposed Rule. Commenting: Please share your concerns and ideas with us regarding the Commercial Fishing Environmental Assessment. Your comments are important and will be assessed and considered before a final decision is made regarding commercial fishing activities in the marine waters of Glacier Bay National Park. The comment period on the EA and Proposed Rule will end June 1, 1998 . Please send written comments by that date to : Superintendent Glacier Bay National Park and Preserve Box 140 Gustavus , Alaska 99826 Phone: (907) 697-2230 Open houses and hearings: Public open houses and hearings on the NPS Proposed Rule and EA , will be held in May in the following Alaskan communities: Gustavus , Hoonah, Pelican, Elfin Cove , Juneau and Sitka , and in Seattle , Washington. The open houses will provide opportunity to talk informally with park staff about the NPS Proposed Rule and EA. Hearings will be held following the open houses to provide opportunity for formal , recorded testimony on the Proposed Rule and EA. Scheduling information will be published several weeks prior to the open houses/hearings. Executive Summary Commercial Fishing Environmental Assessment April1998 ill~~;:rn ® ANCHORAGE OMB J GOVERNMENTAL COORDINATION Glacier Bay National Park and Preserve United States Department of the Interior T National Park Service T Alaska Region EXECUTIVESU~ARY COMMERCIAL FISHING ENVIRONMENTAL ASSESSMENT INTRODUCTION Glacier Bay Nationai Park and Preserve is a glacier-crowned, maritime wilderness that stretches northward from Alaska's fuside Passage to the Alsek River, encircling the magnificent, saltwater Glacier Bay. The park derives its name and much of its biological and cultural significance from this great Bay, which harbors spectacular tidewater glaciers and a unique as~emblage of marine and terrestrial life. This 3.3 million-acre Unit of the Natiorial Park System is one of the few protected areas in the world that includes extensive saltwater habitat within it$ jurisdiction. Within .the boundary of Glacier Bay are over 600,000 acres of marine waters, including 53,000 acres of designated wilderness, making it the largest marine area managed by the National Park Service (NPS) (see map). NPS regulations have prohibited commercial fishing in Glacier Bay National Park (and the 9 predecessor national monument) since 1966, and · the Wilderness Act has prohibited commercial fishing in the wilderness waters within Glacier Bay National Park since 1980. Commercial fishing activities, however, have continued in both wilderness and nonwilderness areas of the park. NPS regulations and management policies allow commercial fishing only where specifically authorized by Federal law or treaty rights. Since 1990, several attempts have been made to resolve the commercial fishing issue through litigation, administrative tulemaking and legislation. In 1990, the Alaska Wildlife Alliance and American Wildlands filed a lawsuit challenging the NPS's failure to bar commercial fishing activities from the park. In 1994, the district court concluded that "there is no statutory ban on commercial fishing in Glacier Bay National Park, provided, however, that commercial fishing is prohibited in that portion of Glacier Bay National Park designated as · wilderness area" NPS published its first proposed rule to phase out commercial fishing in the park on August 5, 1991. At the state of Alaska's request, the Department ofthe Interior did not issue a final rule in 1993 and agreed to 1 discuss with the state and Alaska congressional delegation the possibility of resolving the i~sue through a legis,ative approach. In 1992, Congress considered but did not enact proposed legislation on commercial fishing in Glacier Bay National Park. Further discussions on legislative and regulatory possibilities·m 1993 and 1994 did not lead to a resolution. · · In 1995 and 1996, NPS and the state of Alaska co-hosted several public meetings involving · interested parties on commercial fishing in park w~ters. NPS developed and published a proposed rule on commercial fishing on April 16, 1997 (62 FR 18547). The environmental assessment addresses the potential environmental impact of the proPosed rule and alternatives. The proposed regulations would allow commercial. fishing in non wilderness marine · waters of Glacier Bay proper to continue for 15 years. Commercial fishing would gen~rally be authorized to continue in nonwilderness waters outside Glacier Bay proper. These fisheries would continue under a cooperative fisheries nianagement plan developed by NPS and the state of Alaska and implemented through the Alaska Board of Fisheries, subject to the Secretary of the Interior's authority to protect park resources and values. This action would bring Glacier Bay into conformance not only with the general policy ·and rules applicable to the national park system, but also with the objectives underlying the establishment of the park. In addition to resolving the legal issries, the proposed action would enhance the protection of park resources and values consistent with National Park ServiCe law and policy. Specifically, NPS 's objectives include: · • to preserve and perpetuate habitats and natural population structure and distribution of species; • to ensure that natural, successional and evolutionary process occur unimpeded; • to ensure that natural biological and genetic diversity is maintained; Sound Map of Glacier Bay National Park and Preserve . ' Legend u . . Park Bmmdary Park Waters Wilderness Waters Boundary --·-·-----·-·-------··--···--~--' <• • to minimize visitor and vessel-use conflicts• ' • • • to protect wilderness values; to sustain and strengthen Hoonah Tlingit cultural ties to the park; and to expand our knowledge and understanding of marine ecosystems. The NPS has continued to gather information throughout the scoping period for this. environmental assessment through a series of three public workshops held in Juneau, Alaska during the past several months. DESCRIPTION OF ALTERNAtiVES The environmental assessment describes the proposed action and four alternatives for managing commercial fishing in the marine waters of Glacier Bay National Park. The NPS will implement the Wilderness Act's prohibition on commercial fishing in wilderness waters regardless of any decision made under this environmental assessment and rulemaking process. Closure of all wilderness waters to commercial. fishing is outside the scope of this process ALTERNATIVE ONE: PROPOSED ACTION The proposed action (1997 proposed rule) would enhance protection of the park's biological resources and reduce conflicts between commercial fishing and recreation activities, while providing continued fishing opportUnities in outer waters. The proposal would provide" displaced fishers a reasonable opportunity to . adjust their fishing activities to areas outside Glacier Bay proper, amortize their current investment in fishing vessels and gear, or in many cases, continue fishing until retirement Glacier Bay Proper: The proposed action would prohibit all commercial fishing in Glacier Bay . proper. A IS-year limited exemption in nonwilderness waters of Glacier Bay proper would allow eligible commercial fishing to continue in this area. The exemption would be available throughout the 15 years from October 1 through April30 (outside the primary visitor-use season). Commercial fisheries eligible for the 3 15~year exemption would include trolling for salmon, longlining for halibut and pot or ring net fishing for Dungeness and Tanner crab. All other fisheries and gear types would be prohibited. Participation in the eligible fisheries would be limited to those fishers With an established history (at least 6 out of 10 years, 1987-1996) in Glacier Bay. All commercial fishing in Glacier Bay proper would terminate in 15 years. Outer Waters: The proposed action would.- generally authorize commercial fishing to continue in nonwilderness waters outside Glacier Bay proper. ·Authorized fisheries would be limited to those species and gear tYpes (troll for salmon, longlining for halibut and groundfish, pots and ring net fishing for Dungeness and · Tanner crab and purse seining in Excursion Inlet only) ~t have histori~ly occurred and have provided commercially viable fisheries. All other fisheries and gear types would be prohibited. Dungeness crab and halibut studies and a . Hoonah Tlingit cultural fishery are included in the proposed action. ALTERNATIVE TWO: NO ACTION This alternative would enforce the statutocy and regulatory prohibitions regarding commercial fishing activities within the marine waters of Glacier Bay National Park. Enforcement ofNPS regulations would result in the immediate . cessation of all commercial fisheries in all park waters (Glacier Bay proper, Icy Strait, and outer coast waters) with no.opportunity to phase out fishing through limited exemptions. The Hoonah Tlingit cultural fishery and specific research proposals wouid not be elements of this alternative. · .ALTERNATIVE THREE This alternative incorporates marine reserve concepts consistent with the objectives of the NPS Organic Act and the Alaska National Interest Lands Conservation Act (ANILCA) . The alternative provides an opportunity for NPS and the state of Alaska to test the effectiveness of high-latitude marine reserves for various pwposes. Scientific information would be emphasized in the management and protection of resources throughout the park. Specifically, this alternative would focus on protecting those species for which the parlc could serve as an effective marine reserve (i.e., resident species) while allowing continued harvest of species that are subject to harvest outside park waters (i.e., transient species). · Glacier Bay Prooer: Alternative Three would authorize winter trolling for king salmon in nonwilderness waters of Glacier Bay proper. Commercial fishing for king salmon would be limited to the winter season (currently October 11 through-April 14). A 7-year exemption would be offered for the Tanner crab fishery and a 5-year exemption would be offered for the Dungeness crab fishery. These fisheries would terminate at the end of their respective exemption periods. All other commercial fisheries would be prohibited Outer Waters: Alternative Three would authorize commercial fishing for salmon, halibut and Tanner crab in nonwilderness waters outside Glacier Bay proper. Commercial fishing for Pacific cod would be authorized only in Icy Strait. Dungeness crab and halibut studies and a Hoonah Tlingit cultural fishery are included in this alternative. · AL1ERNATIVE FOUR: CONTINUED FISillNG The objective of Alternative Four would be to· allow holders of valid permits to continue commercial fishing throughout Glacier Bay National Parle. This alternative would prohibit only those fisheries that cannot be sustained or that cause unacceptable habitat degradation. Glacier Bay Proper: Alternative Four would authorize most current fisheries in Glacier Bay proper and park outer waters to continue. Authorized commercial fisheries would include trolling for all species of salmon, longlining for halibut and groundfish; and pot or ring net fishing for Dungeness, Tanner and king crab. Outer Waters: Alternative Four would authorize current fisheries in the outer waters. Authorized commercial fisheries would include trolling for all species of salmon; purse seining for salmon (Excursion Inlet only); longlining for halibut and groundfish; dingle bar fishing for ling cod; pot or ring net fishing for Dungeness, Tanner and king 4 crab; pot fishing for shrimp; and dredging for scallops. A Dungeness crab study and a Hoonah Tlingit cultural fishery are included in this alternative. AL1ERNATIVE FIVE: 1991 DRAFT REGULATIONS This alternative would enhance the protection of park resources in accordance with the NPS Organic Act and its arnendnients and protect wilderness values as mandated by the Wilderness Act. Conserving the marine ecosystem of Glacier Bay in an unimpaired state would protect an ecological model against which marine related activities in other areas may be measured. Glacier Bay and Outer Waters: Alternative Five would prohibit all commercial fishing activities in Glacier Bay National Park. The NPS would offer a 7 -year exemption to the systemwide prohibition on commercial fishing, allowing continued commercial fishing in nonwilderness waters by traditional methods Authorized commercial fisheries would include trolling for salmon; purse seining for salmon (Excursion Inlet only); longlining for halibut; and pot or ring net fishing for Dungeness, Tanner and king crab. All other fisheries would be prohibited. During the 7-year period, the NPS would continue and initiate studies and research regarding fisheries in Glacier Bay National Park and the relationship of those fisheries to marine and terrestrial ecosystems preserved in the parlc, the scientific values of ecosystems and resources preserved in the parlc, including visitor enjoyment. A Hoonah Tlingit cultural fishery would not be initiated in this alternative. AFFECTED ENVIRONMENT Glacier Bay proper opens to the north off Icy Strait and branches for more that 60 miles through increasingly deforested mountains to terminate in bare rock and glacial ice. Glacier Bay proper, the heart of the present park, was hidden under a vast ice sheet as recently as 200 years ago. A century ago the American naturalist and writer John Muir found the '· glaciers had receded more than 30 niiles and began documentitig one of the most faJ}i(i glacial retreats ever recorded. Tlingit oral history and subsequent investigation have established that the Bay had previ.ously been ice-free and home to numerous Tlingit people who had inhabited it between periodic glacial advances for thousands of years. ·The successional processes offer unparalleled opportunity for scientific study, a fact recognized in Glacier Bay's establishment as a national monument in 1925. · The national park and preserve, expanded to its current boundaries in 1980, encompasses an .extensive and diverse north Pacific coastal biome. The sheltered waters of Glacier Bay ebb and flow with the region's huge tides, while ocean waves pound the beaches of the wild and remote gulf coast. Between the Bay and the coast, the lofty, snow-clad peaks of the Fairweather Range spawn the park's largest glaciers. The mountains that surround the Bay descend into newly deglaciated foothills and outwash plains, rapidly turning green as the ice · age retreats. A mature spruce and hemlock forest blankets the shorelines and creeps up the slopes of the lower Bay. New islands emerge from the waters a5 the weight of the glaciers lifts from the earth.' s mantle, and beaches continue to rise and expand. Marine waters make up nearly one-fifth of the park; and with-no point of parkland more than 30 miles from the coast, the terrestrial and marine environments are closely intertwined. The combination of large seasonal runoff and tidal turbulence generates an upwelling of nutrient- rich waters, forming the basis for a productivity that resonates througb the entire ecosystem. Stimulated by long hours of sunlight, phenomenal phytoplankton blooms nurture krill and other invertebrates. These food sources are exploited by a variety of animal 'life, both terrestrial and aquatic, and account for much of the biodiversity in the park. . More than 200 species of fish swim in park waters, including all five species of Pacific salmon; Dungeness, king and Tanner crab; as well as clams, scallops and shrimp. Intertidal communities include barnacles, mussels, seastars, ilrchins, sea cucumbers, sea anemones and a variety of crabs, worms, snails, chi tons and ~eaweeds~ The intertidal zone is~a significant feeding and refuge area for commercially 5 val:uable marine species and an important nursery area for others. Many fishes are associated with subtidal benthic communities; and sevc;:ral sustain important fisheries such as Pacific l}alibut, rockfish, lingcod, Pacific cod, sablefish and pollock. Small schooling fishes in the· pelagic zone include capelin, sandlance, herring,juvenile walleye pollock, juvenile salmonids and myctophids (lanternfish). The productivity of these waters is ~eled up the food chain by tbese aquatic prey; making Glacier Bay an important foraging ground for marine mammals. Several 'cetacean and pinniped species feed extensively in the Bay, including the endangered humpback whale and the threatened Steller sea lion. thousands of harbor seals breed and nurture their pups on the floating ice in Johns Hopkins Inlet and the reefs of the Beardslee Islands. About 220 bird species or nearly 25% of the total number of species in all of North America have been recorded in the park. The shallow waters and gently sloping beaches of the Beardslee _ Islands, for instance, are important foraging and breeding areas for shorebirds and waterfowl and a migratory stopover for many species, as well. Many land mammals and birds use some component of the marine environment, and the . ocean tides are the pulse of the entire ecosystem.· · The waters and nearly 1,200 miles of shoreline are also the main avenue for visitors to explore the park and the zone where most contact between humans and the park's many creatures occurs. Several adjacent commllnities are integrally linked to the Glacier Bay/Icy Strait area including Gustavus (directly adjacent to the park), Hoonah, Elfin Cove, Pelican and Excursion Inlet These communities depend-to varying degrees -on various aspects of Glacier Bay National Park. Individuals in each community derive economic return from the park -.either directly as park employees, concession employees, commercial fishers, charter operators or backcountry guides or indirectly through associated employment related to fishing or tourism. More than 336,000 people visited Glacier Bay National Park in 1997, choosing among.several methods to explore the park's many attractions; TI1e majority enter Glacier Bay on cruise ships or tour boat excursions. During the visitor use season, all vessels (except commercial fishing vessels) enter the Bay under a pennit system, which was initiated in 1983 as part of vessel regulations designed to protect the endangered humpback whale. ENVIRONMENTAL CONSEQUENCES The environmental effects of the proposed action and four alternatives are summarized in Table I. While the summaries display the effects of implementing the statutory prohibition on commercial fishing in wilderness waters, these effects are not the result of the proposed action or alternatives. 6 Table I. Summary of impacts of wilderness water closures and Alternatives 1, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative.· 2 · Alternative 3 Alternative 4 Alternative 5 (Proposed Action) . (No Action) (Continued Fishing) (1991 Draft Regulations) COMMERCIAL FISHERIES Wilderness Wilderness Wilderness Wilderness Wilderness • All fishers would be displaced from • All fishers would be displaced from . • All fishers would be displaced from • All fishers would be displaced from • All fishers would be displaced from wilderness waters except <7 Dungeness wilderness waters. wilderness waters; except some wilderness waters; except some wilderness waters. crabbers under the 5• 7 yr. study in the • Harvest of86-130 thousand lbs./yr. Dungeness crabbers under the 5-7 yr. Dungeness crabbers under the 5-7 yr. • Harvest of 86-130 thousand lbs./yr. Beardslee Island wilderness, who would Dungeness erab and small but study in Beardslee Island wilderness. study in Beardslee Island wilderness. Dungeness crab and small but harvest an estimated 86-130 thousand unquantified harvest of King crab, • Harvest of 86-130 thousand lbs./yr. • Harvest of86-130 thousand lbs./yr. unquantified harvest of King crab, lbs/yr. Tanner crab, shrimp, salmon, halibut Dungeness crab and Sn1all but Dungeness crab and small but Tanner crab, shrimp, salmon, halibut • Harvest of 86-130 thousand lbs./yr. and groundfish would cease. unquantified harvest of King crab, unquantified harvest ofKing crab, Tanrter and groundfish would cease. Dungene!;S crab and small but Tanner crab, shrimp, salmon, halibut crab, shrimp, salmon, halibut and unquantified harvest of King crab, · and groundfish would cease. groundfish would cease. Tanner crab, shrimp, salmon, halibut and groundfish would cease BayProper-during I 5 yr, exemption BayPropet Bay Proper-during 7 yr. exemption Bay Proper Bay Proper-during 7 yr. exemptiqn • QualifYing tanner crabbers reduced, • 14-25 Tanner crabbers, 4 King • 14-25 Tanner crabbers and 8•13 • 14-25 Tanner crabbers, 4 King • 14-25 Tanner crabbers, 4 King yet harvest would continue of 166-328 crabbers, and 8-13 Dungeness .crabbers . Dungeness crabbers would continue to crabbers, and 8-13 Dungeness crabbers crabbers, and 8-13 Dungene5s crabbers .. . thousand lbs./yr. would be displaced, and harvest would harvest 166-328 thousand lbs./yr. would continue to harvest 166-328 would continue to harvest 166-328 e Up to 4 King crabbers displaced and cease for 166-328 thousand lbs./yr. Tanner crab and <21-32 thousand thousand lbs./yr. Tanner crab, 200-2,000 thousand lbs./yr. Tanner crab, 200- 200-2,000 lb/}'r. harvest would cease. Tanner crab, 200-2,000 thousand lbs./yr. Dungeness crab. lbs./yr. King crab and 21-32 thousand 2,000'lbs./yr. King crab, and 32-48 • Up to 4 oUngeness crabbers displaced lbs./yr., King ctab, and 32-48 thousand • Dungeness crabbers would be. lbs./yr. Dungeness crab. thousand lbs./yr. Dungeness crab. from Bartlett Cove for 5-7yr study, and lbs./yr. Dungeness crab. displaced from Bartlett Cove during 5-• Dungeness crabbers would be displaced • Winter and summer salmon.trollers harvest of32-48 thousand lbs/yr. would • All salmon trollers would be 7 yr. study, and after study harvest from Bartlett Cove during 5-7 yr. study, would continue to harvest small but continue in Bay proper. displaced. Harvest of8,000 King would continue at 32-48 thousand and after study harvest would continue at unknown number of salmon. • Small number of summer salmon salmon/yr. during winter troll and small, lbs./yi". 3 2-48 thousand tbs./yr. • 31-46 halibut vessels would continue tJ:ollers displaced and small summer . summer harvest would cease. • Up to 4 King crabbers would be • Winter and summer salmon trollers to ha.rVest 188-328 thousand lbs./yr. harvest would cease; winter King • 31-46 halibut vessels would be displaced and 200-2,000 lbs./yr. would continue to harvest small but • >4 groundfish fishers would be salmon troll and harvest would displaced and harvest of 188-328 harvest would cease. unknown number of salmon. displaced and harvest of2-6 thousand continue. thousand lbs./yr. would cease, quota • Some number of summer salmon • 31-46 halibut vessels would continue to lbs./yr. groundfish would cease. • QualifYing h~libut fishers reduced and achieved elsewhere. trollerS would be displaced and small, harvest 188-328 thousand lbs./yr. would ac.hieve quota share harvest in · • > 4 groundfish fishers would be summer harvest would cease; winter • >4 groundfish fishers would continue Bay Proper c after 7 yr. exemption lower bay over shorter season; 188-328 displaced and harvest of2-6 thousand King salmon harvest would continue. fishing and harvest 2-6 thousand lbs'.lyr. • All Tanner, King, and Dungeness thousand lbs./yr. ha,rvest would be lbs./yr. would cease. • 31-46 halibut vessels would be crabbers would be displaced and harvest reduced. displaced and harvest of 188-328 would cease. • 74 grnundfisti fishers displaced and thousand lbs./yr. would cease, quota • All salmon trollers would. be displaced harvest of2-6 thousand lbs/yr. would achieved elsewhere. and small but unknown amount of cease. • >4 Groundfisffishers would be winter and summer salmon harvest displaced and harvest of2-6.thousand would cease. Bay Proper -after 15 yr. exemption lbs./yr. would cease. • 31-46 halibut vessels would be • All fishers would be displaced. displaced and harvest of would cease, • Harvest would cease for Tanner crab, Bay Proper-aftet: 7 yr. exemption quota achieved elsewhere. · Dungeness crab, King salmon and' • All Tanner crabbers and Dungeness halibut. crabbers would be displaced and harvest would cease. Table I. Summary of impacts of wilderness water closures and Alternatives 1, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) (1991 Draft Regulations) Outer Waters-during 15 yr. Outer Waters Outer Waters Outer Waters Outer Waters-during 7 yr. exemption exemption • Displaced Tanner crabbers (18-31) • 16-25Tanner a;abbers and 5 King • 16-25 Tanner crabbers; 5 King • 16-25 Tanner crabbers, 5 King • Displaced Glacier Bay proper fishers King crabbers (<5) and Dungeness crabbers would continue to harvest crabbers, and 22-61 Dungeness crabbers crabbers, and 22-61 Dungeness crabbers would enter all fisheries and" there would crabbers (17-52) would enter Icy Strait 148-453 thousand lbs./yr. Tanner crab would continue to harvest 148-453 would continue to harvest 148-453 be a minor increase in the number of fishery outside park and competition in outer waters and up to 12,000 thousand lbs./yr. Tanner crab, 10 thousand lbs./yr. Tanner crabs, 10 fishers and amount of take in all would· increase. Harvest would cease in thousand lbs./yr. King crab in Icy thousand lbs./yr. King crab, and 222,000 thousand lbs./yr .. King crab, and fisheries. outer coast waters for 4-24 thousand Strait outside park. to l. 75 million lbs./yr. Dungeness crab. 222,000-l. 75 lnillion lbs./yr. of • 8 shrimp 'fishers arid 9 scallop fishers lbs./yr. Tanner crab, and 1 02,000-l.S • 9-39 Dungeness crabbers, 5 shrimp • Up to 6 shrimp fishers and 9 scallop Dungeness crab. would be displaced and harvest of 40 million lbs./yr. Dungeness crab. fishers, and 9 scallop fishers would be fishers would continue to harv~ up to 40 • Up to 5 shrimp fishers would be thousand lbs./yr. shrimp and 35 • Up to 5 shrimp and 9 scallop fishers displaced from outer coast and harvest thousand lbs./yr. ofshrimp and 35 displaced and harvest of shrimp and <35 thousand lbs./yr. scallop would cease. would be displaced, and harvest of20 of 1 02,000-l.S million lbs./yr. thousand lbs./yr. scallops. thousand lbs./yr. scallop }"Oiild cease. thousand lbs./yr. shrimp and 35 Dungeness crab, 20 thousand lbs./yr. • 521-714 salmon trollers and 42 • 521-714 salmon trollers and up to 42 Outer Waters.-. after 15 yr. exemption . thousand lbs./yr. scallop would cease. shrimp, and"35 thousand lbs./yr . Excursion Inlets seiners would continue Excursion Inlet seiners would continue • Displaced dt~cier Bay· proper fishers • "179-277 salmon trollers would be scallop would cease. 'Some of these to harvest 2.8-7.6 million lbs./yr. and 684 to harvest 2.8-7.6-1.5 million lbs./yr. would enter all fisheries. displaced and harvest of 573,000-l.S fishers would enter the Icy Strait thousand lbs./yr. respectively of salmon. and 684 thousand lbs./yr., respectively • 15-25 Tanner crabbers, 5 King million lbs./yr. would cease along outer fishery and competition would • 362-618 halibut vessels would continue of salmon. . crabbers, and 22-61 Dungeness crabbers coast. increase. to harvest 3-4.1 million lbs./yr. including • 125-273 halibut vessels would would continue to harvest 148-453 • Up to 42 Excursion Inlet seine fishers • Small number of displaced Bay Icy Strait. continue fishing and harvest of3-4.1 thousand lbs./yr. Timner crab, 12 would be displaced, and harvest of up to proper summer salmon trollers and • Up to 77 groundfish fishers would million lbs./yr. thousand 1bs./yr. King crab, and 22,000-684 thousand lbs./yr. would continue in halibut fishers would enter fishery, but continue to harvest 89-339 thousand • Up to 29 groundfish fishers would be 1.75 million lbsJ)T. Dungeness crab. state waters outside park. overall number of fishers and harvest lbs./yr. displaced and harvest of7-119 thousand • 521-714 salmon trollers would • 125-273 halibut vessels would be levels would continue comparable to lbs./yr. along outer coast would cease; continue to take 2.8-7.6 million lbs./yr. displaced, and harvest of 1. 7-2.5 million past efforts. displaced fishers would enter Icy Strait • Up to 42 Excursion Inlet seiners lbs./yr. would cease along outer coast. • Up to 42 Excursion Inlet seiners fishery outside park waters and harvest would continue to harvest 684 thousand Number of halibut fishers and harvest wouid be displaced and harvest of 685 would increase by 8-13 thousand lbs./yr. lbs./yr. salmon. would increase in Icy Strait outside thousand lbs./yr. would cease. • 362-618 halibut vessels would park. • Up to 48 groundfish fiShers would be Outer Waters -after 7 yr. exemption continue to harvest 2.9-4.1 million • Up to 29 groundfish fishers would be displaced and harvest of7-119 • 2-3 Tartner crabbers, 5 King crabbers, lbs./yr. displaced and harvest of7-119 thousand thousand lbs./yr. in park waters would .. and 8-13 Dungeness crabbers would be • Up to 77 groundfish fishers would lbs./yr. would cease along outer coast. cease. Groundfish harvest in Icy Strait displaced and harvest would cease. continue to harvest 89-339 thousand Number of groundfish fishers and outside park waters would increase 8-Displaced crabbers would enter Icy lbs./yr. harvest in Icy Strait outside park would ll thousand lbs./yr. due to displaced Srait fishery outside park and increase. fishers entering fiShery. competition would increase. • 179-227 salmon trollers and 42 Excursion Inlet seiners would be displaced and harvest of 573,000-2.1 million lbs./yr. salmon would cease. • 125-273 halibut vessels would be displaced and harvest of 1.7-2.5 million lbs./yr. ofhalibut would cease. Icy Strait harvest ofhalibut outside park waters w:ould increase 188-328 thousand lbs./yr. FISHERffiS REVENUE During the phase-out period, the estimated revenue reductions for Alternative 1 ($.4 M), Alternative 4 ($.1 M) and Alternative 5 ($.43 M) would be extremely small, in comparison to the $3.5 M effect of the no-action alternative. For alternatives estimated to produce only minor reductions in revenues, reductions in and redistributions of income and well-being could be expected. Alternative 3 would reduce revenues by $1.35 M. In th~ post-transition era, Alternative 4 ($.2 M) would have the least effect on revenues .. Alternative 1 is the second least limiting in terms of revenues and would be projected to reduce fishery revenues annually by $1.8 M. Alternative 3 would reduce fisheries revenues by $2.35 M annually while Alternatives 2 and 5 would reduce annual revenues by $3.5 M and $3.3 M, respectively. ·•.' Table I. Summary of impacts of wilderness water closures and Alternatives I, .2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) (1991 Draft Regulations) COMMERCIALLY HARVESTED MARINE SPECffiS Tanner Crab During 1 5-year phase-out • Completely protected from • C<impletely protected from • Completely protected from commercial During 7-year phase-out • Completely protected from commercial harvest in all park waters. commercial harVest immediately in harvest in wilderness waters; present • Completely protected from commercial harvest in wilderness wilderness waters and after 7 years in harvest continues in all non-wilderness commercial harvest in wilderness waters; harvest continues In Bay proper Bay proper; present harvest continues waters. waters; present harvest continues in all and non-wilderness outer waters. in non-wil4erness outer waters. non-wilderness waters. After 15-year phase-out After 7-year phase-out ~ • Completely protected from • C<impletely protected from commercial harvest in Bay proper; commercial harvest in all park waters. harvest continues in non•wilderness c" outer waters. King Crab • Completely protected from • Completely protected from· • Completely protected from • Completely protected from commercial During 7-year phase-out commercial harvest in all park waters. commercial harvest in all park waters. commercial harvest in ali park waters. harvest in wilderneSs waters; present • Completely protected from harvest continues in all non-wilderness commercial harvest in wilderness waters. waters; ·present harvest continues in all non-wilderness waters. After 7-yearphase-out ' • Coptpletely protected from commercial harvest in all park waters. Dun2eness Crab During 1 5-year phase-out • Completely protected from • Completely protected from • Completely protected from commercial During 7-year phase-out . • Completely protected from conurtercial harvest in all park waters. commercial harvest immediately in harvest in wilderness waters (except for S-• Completely protected from commercial harvest in wilderness waters wilderness waters, Bartlett Cove lll!d 7 year research project in portion of commercial harvest in wilderness (except fc;>r S-7 year research project in outer waters, and after S years in Bay Beardslee Islands); present harvest waters. portion of Beardslee Islands); protected proper. · · continues in non-wilderness waters during visitor-use season in Bay proper (except for S-7 yr. research project_in After 7-yearphase-out (except year~round in Bartlett Cove for Bartlett Cove). • Completely protected from S-7 yrs.). commercial harvest in all park waters. • After 1 S-yeilr phase-out Completely protected from commercial harvest in Bay proper; harvest continues in non-wilderness outer waters. Shrimp and Weathervane Scallops • Completely protected from • Completely protected from • Completely protected from • Completely protected from commercial • Compietely protected from commercial harvest in aU Park waters. commercial harvest in all Park waters. commercial harvest in all park waters. harvest in Bay proper; present harvest commercial harvest in all park waters.' continues in non-wilderness outer waters. Table I. Summary of impacts of wilderness water: closures and Alternatives 1, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) (1991 Draft Regulations) Pacific Sabnon During 15-year phase-out • Completely protected from • Completely protected from • Completely protected from commercial During 7-year phase-out • Completely protected from commercial harvest in all Park waters. commercial harvest in wilderness harvest in wilderness waters; present • Completely protected from commercial harvest in wilderness waters waters and Bay proper (except winter harvest continues in non-wilderness commercial harvest in wilderness and in Bay proper during visitor-use trolling for kings continues in Bay waters. waters. season; harvest continues outside proper); troll harvest continues in non- visitor-use season and in non-wilderness wilderness outer waters; NPS requests After 7-year phase-out outer waters. ADFG close Excursion Inlet purse • Completely protected from seine fishery. commercial harvest in all park waters. After 15-year phase-out • Completely protected from commercial harvest in Bay proper; harvest continues in non-wilderness outer waters. Pacific halibut During 15-year phase-out • Completely protected from • Completely protected from • Completely protected from commercial During 7-year phase-out • Completely protected from commercial harvest in all Park waters. commercial harvest in wilderness harvest in wilderness waters; present • Completely protected from commercial harvest in wilderness waters waters and Bay proper; present harvest harvest continues in all non-wilderness commercial harvest in wilderness and in Bay proper during visitor-use continues in non-wilderness outer waters. waters; present harvest continues in all season; harvest continues outside visitor waters. non-wilderness waters. use-season and in non-wilderness outer waters. After 7-year phase-out • Completely protected from After 15-year phase-out commercial harvest in all park waters. • Completely protected from commercial harvest in Bay proper; harvest continues in non-wilderness outer waters. Ground fish During 15-year phase-out • Completely protected from • Completely protected from • Completely protected from commercial • Completely protected from directed • Completely protected from directed commercial harvest in all Park waters. commercial harvest in wilderness harvest in wilderness waters; present commercial fishery harvest in all park fisheries in wilderness waters and Bay waters and Bay proper; rockfish and harvest continues in all non-wilderness waters; incidental catch from halibut proper; incidental catch from halibut lingcod protected from directed waters. long-lining continues during 7-year long-lining continues; present harvest fisheries in outer waters, present exemption for that fishery. continues in outer waters except lingcod pacific cod harvest continues; dingle bar. incidental catch from halibut long- lining continues in outer waters. After 15-year phase-out • Harvest continues in outer waters except lingcod dinglebar. WATER QUALITY During 15-year phase-out • Effects of commercial fishing on park • Most park waters at minimal risk of • Most park waters at risk of small, During 7•year phase-out. • Most park waters at risk of small water quality would end. small, periodic spills from fishing periodic spills from fishing boats. • Most park waters at risk ofsmal~ periodic spills from fishing boats. boats. periodic spills from fishing boats. After 15-year phase-out After 7-year phase-out • Glacier Bay proper waters protected; • All park waters protected. outer waters at continued risk. "'' ·-- Table I. Summary of impacts of wilderness water closures and Alternatives 1, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) (1991 Draft Regulations) NON-COMMERCIAL MARINE SPECIES During 15 year phase-out • Effects of commercial fishing on non-• Some direct mortality and sublethal • Direct mortality and sublethal effect During 7-year phase-out • Direct mortality and sublethal effect commercial marine species in park effect from harvest methods, pollution from harvest methods, pollution and • Direct mortality and sublethal effect from harvest methods, pollution and Waters would end. Marine systems and habitat disturbance would habitat disturbance would continue in from harvest methods, pollution and !labitat disturbance woidd continue in would evolve toward a more natural continue in most park waters. most park waters. habitat disturbance would continue in most park .waters. condition. most park waters. ; After 15-year phase-out After 7-year phase-out • Effects would end in the Bay proper • Effects would end in all park waters. and continue in outer waters. THREATENED AND ENDANGERED SPECIES I Humpback Whale During 15-year phase-out • Effects of commercial fishing on • Whales would continue to be at low-• Whales would continue to be at low-During 7-year phase-out • Summer closures would substantially humpback whales in park waters would level risk of short-term behavioral level risk of short-term behavioral • Whales would continue to be at low- reduce risks for humpback whales of end. disturbance, collision with fishing disturbance,. collision with fiShing vessels, level risk of short-term behavioral short-term behavioral disturbance, vessels, entanglement in or ingestion of entanglement in or ingestion of fishing disiurbance, collision with.fishing collision with fishing vessels, fishing gear or debris and exposure to gear or debris, and exposure to marine vessels, entanglement in or ingestion of entanglement in or ingestion of fishing marine pollution in most park waters. pollution in most park waters. fiShing gear or debris and exposure to gear or debris and exposure to marine marine pollution in most park waters. --pollution in the Bay proper. These risks would remain in outer waters, After 7-year phase-out • Effects would end in all plll'k. waters. After 15-year phase-out • Effects would end in the Bay proper and cimtinue in outer waters. SteUer Sea Lion During 15-year .phase-out • Effects of commercial fishing on • Winter King salmon trolling would • Sea lions would be at continued low-During 7-year .phase-out • Sea lions would be at continued low. Steller sea lions in park waters would expose sea lions to low-level risk of level risk of short-term behavioral • Sea lions would be at continued low- level risk of short-term behavioral end. short-term behavioral disturbance, disturbance, vessel collision, level risk of short-term behavioral disturbance, vessel collision, vessel collision, entanglement in entanglement in or ingestion of fishing disturbance, vessel collision, entanglement in or ingestion of fishing trolling flashers, ejqlosure to marine · gear, exposure to marine pollutioli in entanglement in or ingestion offJShing gear, exposure to marine pollution and pollution, and remov~l of prey. Other most park waters and may lose gear or exposure to marine pollution in removal of prey in all park waters and continuing fisheries would expose sea availability of important food sources. most park waters and may lose may undergo reduced availability of lions to some low"level risks ofthe avaHability of important food sources. important food sources. above. After 7-year phase-out After 15-year phase-out • Effects would end in all park waters. • Effects would en\! in the Bay proper in l S years but continue in outer waters. -N Table I. Summary of impacts of wilderness water closures and Alternatives 1, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) (1991 Draft Regulations) NON-ENDANGERED MARINE MAMMALS During 15-year phase-out • Effects of commercial fishing on • Crab fishing in the Bay proper and • Marine mammals would continue to be During the 7-year phase-out - • Marine mammals would be at marine mammals in park waters would salmon trolling, halibut and Pacific at low-level risk of short-term behavioral • Marine mammals would be exposed to continued low-level risk of short-term end. cod long-lining and Tanner crab disturbance, collision with commercial low-level risk of short-term behavioral behavioral disturbance, collision with fishing in outer waters would expose fishing vessels, entanglement in or disturbance, collision with fishing fishing vessels, entanglement in or marine mammals to minimal risk of ingestion of fishing gear and marine vessels, entanglement in or ingestion of ingestion of fishing-gear or debris, short-term behavioral disturbance, debris, exposure to marine pollution and fishing-gear and debris, exposure to exposure to marine pollution and collision with fishing vessels, removal of prey by commercial fishing marine pollution and removal of prey by removal of prey by commercial fishing entanglement in or ingestion of fishing-activities in most park waters. commercial fishing activities in most activities in all park waters. Risks gear and debris, exposure to marine park waters. would be much reduced in Glacier Bay pollution and removal of prey. proper in the summer months. After 7-year phase-out • Effects would end in all park waters. After 15-year phase_-out • Effects would end in Glacier Bay _JlfOPer and continue in outer waters. TERRESTRIAL MAMMALS During 15-year phase-out • Effects of commercial fishing on • Terrestrial mammals would be at • Terrestrial mammals would be at During 7-year phase-out • Terrestrial mammals would be at terrestrial mammals in the park would minimal risk ofbehavioral minimal risk ofbehavioral disturbance, • Terrestrial mammals would be at minimal risk of behavioral disturbance, end. Terrestrial systems in Glacier Bay disturbance, entanglement in and entanglement in and ingestion of minimal risk ofbehavioral disturbance, entanglement in and ingestion of proper would evolve toward a more ingestion of commercial fishing gear or commercial fishing gear or debris and entanglement in and ingestion of commercial fishing gear or debris and natural condition. debris and contact with pollutants. contact with pollutants. commercial fishing gear or debris and contact with pollutants. Effects would be localized. contact with pollutants. After 15-year phase-out After 7-year phase-out • Effects would end in Glacier Bay • Effects would end and all terrestrial proper and continue in outer waters. systems would evolve toward a more • Terrestrial systems in Glacier Bay natural condition. proper would evolve toward a more natural condition. MARINE BIRDS During 15-year phase-out • Effects of commercial fishing on· • Commercial fishing would expose • Commercial fishing would expose During 7-year phase-out • Commercial fishing would expose marine birds in the park would end. marine birds to minimal risk of marine birds to low-level risk of • Commercial fishing would expose marine birds to low-level risk of behavioral disturbance, entanglement behavioral disturbance, entanglement in marine birds to low-level risk of behavioral disturbance, entanglement in in or ingestion of fishing gear or or ingestion of fishing gear or debris, and behavioral disturbance, entanglement in or ingestion of fishing gear or debris, debris, and contact with pollutants. contact with pollutants. Effects would be or ingestion of fishing gear or debris, and contact with pollutants. Effects Effects would be on individuals and on individuals and would not affect and contact with pollutants. Effects would be on individuals and would not would not affect marine bird marine bird populations. would be on individuals and would not affect marine bird populations. populations. affect marine bird populations. After 15-year phase-out After 7-year phase-out • Effects would end in Glacier Bay • Effects would end in all park waters. ' proper, but continue in outer waters. • -w ,._ Table I. Summary of impacts of wilderness water closures and Alternatives 1, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) ( 1991 Draft Regulations) WILDERNESS During 15"year phase-out • Effects-of commercial fishing on • Wilderness values would be • The wildeptess character of both marine During 7-yedr phase-out • Wilderness values would be enhanced marine and terrestrial wildernesS in the enhanced by closure of many fisheries. and terrestrial wilderness areas would • Wilderness values would be enhanced by the seasonal closure of the Bay park would end. continue to be impacted by commercial by the seasonal clasure in the Bay proper. S<inie off-season wilderness fishing in adjacent non-wilderness waters. proper. Some off-season wilderness visitors would experience impacts visitors would experience impacts during fall-spring fisheries. Impacts to during fall-spring fisheries. Impacts to terrestrial wilderness would continue in terrestrial wilderness would continue in outer waters and outside ofthe visitor outer waters and outside of the visitor use season. use season. After 15~year phase-out .. After 7-year phase-out • Effects would end in Glacier Bay • Effects would end in all marine and proper but wotild continue in terrestrial terrestrial wilderness. wilderness adjacent to outer waters. VISITOR USE/EXPERIENCE During 15-year phase-out • Effects of commercial fishing on • Disturbance ofbackcountry users in • Disturbance ofbackcountry users in the During 7-year phase-out • Disturbance ofbackcountry users visitor use/experience in the park would . Bay proper would decrease as fisheries park would continue as would . • Disturbance ofbackcountry users would continue as would interactions end. phased out, as would interactions interactions between commercial fishing would continue in the park as would between commercial fishing vessels and between commercial fishing vessels vessels and cruise ships, tour boats, interactions between commercial fishing cruise ships, tour boats, charter vessels < and cruise ships, tour boats, charter charter vessels and private boats. vessels and cruise ships, tour boats, and pril(ate vessels. vessels.and private boats. Interactions charter vessels and private boats. between vessels and impacts to After 15-yearphase~out backcountry users: may increase In After 7-year phase-out • Effects would end in Glacier Bay outer waters. • Effects would end in all park waters. · proper but would continue in outer waters. LOCAL COMMUNITIES .. • Elfin Cove, .Gustaws, Juneau, • The communities of Juneau, Sitka, • Elfm Cove, Excursion Inlet, • All Icy Strait communities would • Following the 7-year phase-out, this Excursion lnlet, and Sitka would not be Petersburg, Gustaws, and Excursion Gustaws, Juneau, Petersburg and maintain their current structure and alteinative would affect communities affected. Inlet would be slightly affected by Sitka would not be affected. character, although some would similarly to Alternative Two. •The community ofHoomlh would be commercial fishing closure; the gradually evolve toward tourist-based noticea~ly affected. character ofthese cities and towns • Pelican would be substantially economies regardless of commercial •The community of Pelican woutd·be would likely not change. affected if the seafood processing fishing regulations. affected, but community ch~cter and • Elfin Cove would be somewhat facility could not.sustain operations. social9omposition would not change. impacted • Hoonah and Pelican would be • Hoonah would be adversely affected; substantially impacted by the closure of but the traditional character of the all fisheries in park waters. community would be sustained. Table I. Summary of impacts of wilderness water closures and Alternatives I, 2, 3, 4, and 5 on park resources and commercial fisheries. Alternative 1 Alternative. 2 Alternative 3 Alternative 4 Alternative 5 (Proposed Action) (No Action) (Continued Fishing) (1991 Draft Regulations) MARITIME TRADITION • The Icy Strait maritime tradition • The Icy Strait maritime tradition • This alternative would sustain the • This alternative would sustain the Icy • Alternative would affect the II:}' Strait would be impacted following the 15-would be substantially diminished by maritime tradition, but in a much Strait maritime culture by permitting maritime culture similarly to Alternative year phase-out by reducing the number the closure of all commercial fisheries in diminished form. continued commercial fishing throughout Two. of active fishers, eliminating Glacier all park waters. most park waters. Bay as a resource base, reducing fishers' connection to special places within Bay proper waters and by reducing the diversity and economic viability ofthe commercial fishing lifeway. Because commercial fishing would be allowed to continue in outer waters, the maritime tradition would be sustained. TLINGIT CULTURE • Tlingit culture would be impacted by • This alternative would seriously • This alternative would have mixed • Commercial fishing would remain • Following the 7-year phase-out, this the eventual exclusion of commercial impact Tlingit culture. Displacement of effects on Tlingit culture as it would economically viable, an important alternative would affect Tlingit culture fishers from Glacier Bay proper. culturally important individuals in the allow some fisheries important to component ofTiingit culture, and Tlingit similarly to Alternative Two. Because commercial fishing would be community, reduced connection to Tlingit culture to continue fishers would maintain significant ties to allowed to continue in outer waters, homeland, lost cultural identity, and (particularly salmon trolling) but their homeland. many Native fishers would remain reduced income would weaken the would close the Excursion Inlet seine economically viable. fabric of Hoonah Tlingit culture. fishery. Author: tinac1©FishGame.Alaska (Cunning, Tina) at CC2MHS1 3/31/98 2:04 PM Date: Priority: Normal TO: Sally Gibert at Gov_Anchorage_DGC CC: Alan Phipps at Gov_Anchorage_DGC TO: stanl©dnr.state.ak.us at CC2MHS1, Kathryn Swiderski©law.state.ak.us at CC2MHS1, r robertb©FishGame.Alaska at CC2MHS1 Subject: RE: Glacier Bay Background and status of ~~ for the EA review, that is normally coordinated through Sally Gibert at DGC to be sure all agencies' interests and concerns are addressed; we normally don't take a position, but address accuracy, substance, content, process, completeness, range of options types of stuff as required under NEPA. From: Bosworth, Robert Sent: Tuesday, March 31, 1998 1:26 PM To: 'Sally Gibert©Gov.Alaska'; 'stanl©dnr.state.ak.us'; 'Kathryn_Swiderski©law.state.ak.us'; Cunning, Tina Cc:· 'Alan Phipps©cchub.Alaska' ()~fubject: RE: Glacier Bay Background and status of ~~~ the last sentence, Interior will, as part of a consensus agreement, agree to allowing winter king fishing to continue. The phase out (through life tenancy) offer applies to tanner and halibut fishing. They do not propose closing fisheries on the outer coast except scallop dragging. If it is not possible to arrive at a consensus agreement then, they say, all bets are off. The proposed regs would presumably be the fall back position and they phase out fisheries in the bay and reevaluate outer coast fisheries. I'm not sure I understand how the one-pager will be used, but notwithstanding the above it may be best not to describe an Interior position if this will become a document that is widely used. I'd hate to see them feel they have to back away from that position in order to protect their "neutrality" pending the end of the reg process. And by the way, I believe the EA is due out today. I would appreciate some chatter about how to construct our comments on the regs. Options include (1) just a statement that we own the bay (2) follow that statement with a summary of the SEACC/Allied Fishermen/State/?? proposal (3) follow that statement with a critique of the EA (4) follow that statement with a critique of the EA and all the reasons fishing should continue in the bay under state management. -----Original Message----- From: 'Sally Gibert©Gov.Alaska' Sent: Tuesday, March 31, 1998 11:46 AM To: Bosworth, Robert; 'stanl©dnr.state.ak.us'; 'Kathryn_Swiderski©law.state.ak.us'; Cunning, Tina Cc: 'Alan Phipps©cchub.Alaska' Subject: Re: Glacier Bay Background and status of Original Subject: Re: Glacier Bay Background and status of neg Tina, thanks for the very succinct background paper. Hard to imagine getting all this on one page. Good work. I'm not sure if this is a document intended for comment. If it is I'll dive in with a couple of' the You the of NPS? Bay thoughts. Without knowing the purpose/intended audience of this paper, take these with a grain of salt. Depending on its purpose, it might be appropriate to recognize in 2nd paragraph that NPS claims ownership of the waters as well. (We are always urging them to include recognition of our differing legal views so it would seem appropriate to do the same in this case) . could do this perhaps by inserting after the first sentence: "Both state and the NPS claim jursidiction over the submerged land and waters within the exterior boundary of the park. The state's assertion of ownership of the submerged lands and state jurisdiction for management of the fishery resources is based on analysis of the original withdrawals ..... Submerged Lands Act." Also, I have missed the last meetings so I don't have a good sense the NPS line these days so I'll defer on the next thought if I'm off-base. Is the last sentence an appropriate characterization of Are they really boxing themselves into this corner (no fishing in proper and possible phase out in outer waters), or is this their ideal outcome? Is more work anticipated to address the gaps between the two positions? If so it might be helpful to address this NPS perspective last in less "fixed" terms. But again I will defer to others on this point since I missed the last meetings and don't know how this is intended to be used. Reply Separator Subject: Glacier Bay Background and status of neg tinac1®FishGame.Alaska (Cunning, Tina) at CC2MHS1 3/31/98 10:33 AM Author: Date: Attached is my attempt to put together the briefest of brief overviews of the background to the Glacier Bay commercial fishing issues and current standoff in the negotiations regarding park service rulemaking and possible legislation. We will need to get our review of the proposed regulations put together in the next few months if legislation doesn't happen, so I will redistribute. to the proposed regulations to staff soon. My attached summary does not reflect the ongoing dispute over subsistence fisheries in marine waters and some groups desires to eventually prohibit commercial sport fisheries in the Bay proper-I kept the focus on the current commercial fisheries issue. Another and perhaps final meeting of the stakeholders has yet to be scheduled. [[ 398summ.doc 4894 in 398summ.doc ]] t-· Author: Sally Gibert at Gov_Anchorage_DGC Date: 3/31/98 11:50 PM Priority: Normal CC: Alan Phipps TO: stanl©dnr.state.ak.us at CC2MHS1, Kathryn_Swiderski@law.state.ak.us at CC2MHS1, tinac1©FishGame.Alaska at CC2MHS1, robertb©FishGame.Alaska (Bosworth, Robert) at CC2MHS1 S~bject: Re[2]: Glacier Bay Background and status of I I concur with the various responses on this subject, specifically: developing coordinated comments on the EA and regs at face value and adding in any other commentary about a negotiated solution that would be appropriate at the time. ~;ubject: Reply Separator ------------------------------------ RE: Glacier Bay Background and status of Author: Date: robertb©FishGame.Alaska (Bosworth, Robert) 4/1/98 11:31 AM at CC2MHS1 Thanks for your analysis and suggestion. It would be possible to attach the "facilitator's report" to any comments we send, and refer to it in the comments. Presumably by the time comments are due we will have a final meeting and facilitator's report, so we can be more clear about the State/SEACC/Allied Fishermen/CACFA/?? position. L~J~~---Original Message-----~\V From: •stanl@dnr.state.ak.us• Sent: Wednesday, April 01, 1998 10:14 AM To: 'Kathryn_Swiderski©law.state.ak.us'; Bosworth, Robert; 'Sally Gibert©Gov.Alaska'; Cunning, Tina Cc: 'Alan Phipps©cchub.Alaska' Subject: RE: Glacier Bay Background and status of Rob-Some thoughts on how to address the Glacier Bay EA and regulations. While I think the working group has made some excellent progress on resolving this issue, I think the best approach to take in responding to the EA and the regs is to assume that the effort will not result in a consensus or compromise solution. That's not to say the effort should be ignored. I think that the points of agreement should form the basis for any comments submitted on the regulations, along with the general State postion on ownership, jurisdiction, management of fisheries, etc. On those points where there is no agreement, make the best argument for the state/SEACC/Allied Fishermen position. That is the course of action I recommended to my Commission members at our meeting last week. Based upon Molly's comment that unless a consensus is reached on an ultimate phase-out, all bets are off, I think approaching the regulations as if they will be adopted essentially as proposed is the safest course of action. Even if no consensus agreement is reached, I believe that ' DOI/NPS will make some modifications to the proposed regulations based on the working group's efforts, but will stop short of adopting all the group's points of agreement. In order to counter what we know will be a huge body of comments urging elimination of all comercial fishing and to encourage NPS to modify the proposed regulations, Alaskan interests will need to weigh in strongly with suggested revisions. I also think that a thorough review and critique of the information presented in the EA will be an essential part of a State response. With a legislative solution appearing less and less likely, and given DOI/NPS opposition to a legislative solution unless necessary to implement some solution the regulations cannot accopmplish, I think we have to look at the regulation package as if it were the only game in town. That way, we cover ourselves as best we can in the event the working group is not successful in its efforts and legislation can't be pushed through during this Congress. Name: Stan Leaphart E-mail: stanl®dnr.state.ak.us Date: 04/01/98 Time: 10:14:50 This message was sent by Chameleon ~· Author: robertb®FishGame.Alaska (Bosworth, Robert) at CC2MHS1 Date: 3/31/98 1:26 PM Priority: Normal TO: Sally Gibert at Gov_Anchorage_DGC CC: Alan Phipps at Gov_Anchorage_DGC TO: stanl®dnr.state.ak.us at CC2MHS1, Kathryn_Swiderski®law.state.ak.us at CC2MHS1, tinacl®FishGame.Alaska at CC2MHS1 Vr subject: RE: Glacier Bay Background and status of \ On the last sentence, Interior will, as part of a consensus agreement, ' agree to allowing winter king fishing to continue. The phase out (through life tenancy) offer applies to tanner and halibut fishing. They do not propose closing fisheries on the outer coast except scallop dragging. If it is not possible to arrive at a consensus agreement then, they say, all bets are off. The proposed regs would presumably be the fall back position and they phase out fisheries in the bay and reevaluate outer coast fisheries. I'm not sure I understand how the one-pager will be used, but notwithstanding the above it may be best not to describe an Interior position if this will become a document that is widely used. I'd hate to see them feel they have to back away from that position in order to protect their "neutrality" pending the end of the reg process. And by the way, I believe the EA is due out today. I would appreciate some chatter about how to construct our comments on the regs. Options include (1) just a statement that we own the bay (2) follow that statement with a summary of the SEACC/Allied Fishermen/State/?? proposal (3) follow that statement with a critique of the EA (4) follow that statement with a critique of the EA and all the reasons fishing should continue in the bay under state management. -----Original Message----- From: 'Sally Gibert®Gov.Alaska' Sent: Tuesday, March 31, 1998 11:46 AM To: Bosworth, Robert; 'stanl®dnr.state.ak.us'; 'Kathryn_Swiderski®law.state.ak.us'; Cunning, Tina Cc: 'Alan Phipps®cchub.Alaska' Subject: Re: Glacier Bay Background and status of Original Subject: Re: Glacier Bay Background and status of neg ~,1\~~~ .Tina, thanks for the very succinct background paper. Hard to ?)~~~1ne of the You the getting all this on one page. Good work. I'm not sure if this is a document intended for comment. If it is I'll dive in with a couple thoughts. Without knowing the purpose/intended audience of this paper, take these with a grain of salt. Depending on its purpose, it might be appropriate to recognize in 2nd paragraph that NPS claims ownership of the waters as well. (We are always urging them to include recognition of our differing legal views so it would seem appropriate to do the same in this case) . could do this perhaps by inserting after the first sentence: "Both r of NPS? Bay state and the NPS claim jursidiction over the submerged land and waters within the exterior boundary of the park. The state's assertion of ownership of the submerged lands and state jurisdiction for management of the fishery resources is based on analysis of the original withdrawals ..... Submerged Lands Act." Also, I have missed the last meetings so I don't have a good sense the NPS line these days so I'll defer on the next thought if I'm off-base. Is the last sentence an appropriate characterization of Are they really boxing themselves into this corner (no fishing in proper and possible phase out in outer waters) , or is this their ideal outcome? Is more work anticipated to address the gaps between the two positions? If so it might be helpful to address this NPS perspective last in less "fixed" terms. But again I will defer to others on this point since I missed the last meetings and don't know how this is intended to be used. Reply Separator Subject: Glacier Bay Background and status of neg Author: tinac1@FishGame.Alaska (Cunning, Tina) at CC2MHS1 Date: 3/31/98 10:33 AM Attached is my attempt to put together the briefest of brief overviews of the background to the Glacier Bay commercial fishing issues and current standoff in the negotiations regarding park service rulemaking and possible legislation. We will need to get our review of the proposed regulations put together in the next few months if legislation doesn't happen, so I will redistribute to the proposed regulations to staff soon. My attached summary does not reflect the ongoing dispute over subsistence fisheries in marine waters and some groups desires to eventually prohibit commercial sport fisheries in the Bay proper-I kept the focus on the current commercial fisheries issue. Another and perhaps final meeting of the stakeholders has yet to be scheduled. [[ 398summ.doc 4894 in 398summ.doc ]] [Federal Register: October 20, 1997 (Volume 62, Number 202)] [Proposed Rules] [Page 54409] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr20oc97-31] ======================================================================= DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 Glacier Bay National Park, Alaska; Commercial Fishing Regulations AGENCIES: National Park Service, Interior. ACTION: Proposed Rule; extension of the public comment period. SUMMARY: The National Park Service (NPS) announces that the public comment period for the proposed Glacier Bay National Park Commercial Fishing Regulations, published in the Federal Register on April16, 1997 (62 FR 18547), has been extended to May 15, 1998. The original comment period was through October 15, 1997. This extension will allow the NPS, in a forthcoming environmental assessment on commercial fishing within Glacier Bay National Park, to fully describe and analyze the potential effects of a range of alternative actions under consideration. The public review and comment period for the environmental assessment and the proposed rule coincide. The NPS will hold public meetings on the proposal and alternatives and publish a schedule of times, dates and locations in the Federal Register. No final decisions will be reached until all applicable legal requirements have been met, including environmental review requirements. DATES: Comments on the proposed rule and environmental assessment will be accepted through May 15, 1998. ADDRESSES: Comments should be addressed to: Superintendent, Proposed Regulations Comment, Glacier Bay National Park and Preserve, PO Box 140, Gustavus, Alaska 99826. FOR FURTHER INFORMATION CONTACT: J. M. Brady, Superintendent, Glacier Bay National Park and Preserve, PO Box 140, Gustavus, Alaska 99826, Telephone: (907) 697-2230. Dated: October 8, 1997. Robert D. Barbee, .- Regional Director, Alaska Region. [FR Doc. 97-27731 Filed 10-17-97; 8:45am] BILLING CODE 4310-70-P Commet:cial 'Fishing Authorized .. In Glacier Bay i· National Park! " }Our Comments Needed .......................................... ········-··-· .......... ,.. ................... . , By Stephen Wells ~~' The Alliance's longstanding lawsuit to stop commercial fishing in Glacier Bay National Park has had some favorable and some uofavor-.. able resuJts. 1n February, the Ninth Circuit federal Appeals Court upheld the Alaska District Court ruling that "subsistence" fishing, and commercial fishing in desig- nated Wilderness waters was ille- gal. Unfortunately, the Ninth Circuit also agreed that the National Park Service (NPS) has the discretionary authority to allow commercial fishing to continue in nonwildemess park waters. Glacier Bay National Park, at the northern end of Alaska's southeast- em panhandle, is one of the world's most beautiful wild areas. Rugged mountaips overilow with glaciers .. that slide slowly into the sea. Lwh rainforest and narrow fjords replace the ice where glaciers have retreat· ed The land abounds with wildlife including wolves, bears, and moose. Marine waters are rich with plankton and fish which sup. ·port a h9st of marine mammals like seals, porpoises and the endangered humpback whale. Glacier Bay's importance to the world was recog- nized by the United Nations when it was designated an International Biosphere Reserve in 1986, and a World Heritage Site in 1992. Commercial fishing impacts the park in several ways. First, remov- ing any species of wildlife, includ- ing fish or crustaceans, alters the • • • Continued on page 11 • • • Commercial Fishing Continued from page 1 •....................•.................................... natural ecosystem balance·that exists without human intervention. This is inappropriate in National Parks which are supposed to be pre- served "unimpaired for the enjoyment of future generations." (NPS Organic Act) Second, com- mercial fishing vessels , nets, traps, and other equipment pose a threat to marine mammals, including endangered humpback whales which return to the park each summer. Third , the vessels themselves disrupt the natural solitude of the park sought by visitors to any National Park. The Alliance maintains that commercial fishing is illegal by statute in the same way hunting, trapping, and logging are illegal in National Parks. Nevertheless, commercial fishing will continue in the park under new regulations proposed by the NPS as a direct result of the recent Ninth Circuit ruling. If adopted, the regulations would initiate a 15 year "phase out" of commercial fishing in Glacier Bay proper. Commercial fishing in park waters outside the bay would be allowed to con- tinue indefinitely under joint State-federal management. In the park's designated Wilderness waters, where the court agreed that commercial fishing is illegal; the NPS proposes to end commercial fishing in 1998. However, a significant exception is pro- posed for commercial crab fishing in the Beardslee Islands, one of the bay's most important Wilderness areas. There, crabbing would be allowed to continue for five to seven years as part of an unspecified "multi-agency research project." The Alliance maintains that commercial fishing is illegal by statute in the same way hunting, trap- ping, and logging are illegal in National Parks. If this were not true, then the assumption for all parks would seem to be that unless commercial and resource extractive activities were specifically excluded from parks, they would be O.K. Despite this, the only remaining ltzgal option in this case would be an appeal to the U.S. Supreme court -a costly undertaking with dubious chances of success. That's why the Alliance is calling Calving from a tidewater glacier. upon our members and the public to speak out in favor of park values over commercial consump- tion of park resources by submitting comments on these proposed regulations. An important point in its final ruling is that the court assumes that commercial fishing in Glacier Bay is not in derogation of park values. In fact, no such finding has been advanced by the NPS, and the Alliance is unaware of any data that would support such a finding in the park. The Alliance has led the fight to stop destructive activities in Glacier Bay National Park and to pro- tect humpback whales and other species. We will continue to monitor this process and keep our members up-to-date. Please take the time to send in your comments on commercial fishing in Glacier Bay. Some. points you may want to consider in your comments: • Commercial fishing is inappropriate in Glacier Bay National Park, especially since the NPS has Photo by Mark Newman not proven that it is not in derogation of park val- ues. In any event, commercial extraction of natur- al resources is inappropriate in any National Park. • All fishing should immediately cease in the park's Wilderness waters since the court has found this to be an illegal activity. No allowance for continued fishing in Wilderness should be allowed, including the "research project" in the Beardslee Islands. • The phase out of commercial fishing is far too long and should include fishing in all park waters, not just the bay proper. Commercial fishing is no more appropriate in park waters outside the bay than it is in the bay itself. (The Alliance suggests a three year phase out to allow commercial fishers to find other grounds, and only for those fishers with a lengthy history of fishing in the park. A longer period would be politically unrealistic .) Comments are due October 15, 1997. Send your comments to park superintendent James Brady (address on page 4). (" TQNY KNOWLES P. 0 . Box 110001 Juneau, Alaska 99811-0001 (907) 485-3500 f ' GOVERNOR Mr. Gordon Jackson STATE OF ALASKA OFFICE OF THE GOVERNOR JUNEAU May 5, 1997 President and Chief Executive Officer Kake Tribal Corporation 3017 Clinton Drive, Suite 100 Juneau, AK 99801 Dear Gordon, Fax (907) 465-3532 Thank you for your letter regarding the effect on the community of Pelican of commercial fishery closures in Glacier Bay. We recently received the draft proposed rule governing commercial fisheries in Glacier Bay from the National Park Service (NPS). We are advised the NPS is providing a six-month review and comment period. I recently wrote to the NPS field director in Alaska asking that the NPS convene public meetings during this interval. A copy of this letter is enclosed. In 1995, shortly after assuming office, my Administration renewed efforts to develop a consensus position on Glacier Bay fisheries. Working with the NPS, we invited the affected interest groups to discussions which made significant .progress until May of 1996. At that time, the NPS determined they lacked authority to discuss substantive issues . The NPS now believes the proposed rule provides the legal basis for their participation in a full public discussion process. My Administration intends, once again, to be fully engaged in these discussions. We believe there are legitimate interests on all sides of this debate, but any resolution must be fair to fishermen. We have been active proponents of a science-based decision process to find ways commercial fishing can be compatible with national park values and resources. You have highlighted the potential effects on Pelican Seafoods and the town of Pelican, and we need to bring these issues to the table. Clearly, the effects of closing an area to commercial fishing would be felt by more than just the fishermen. , • Mr. Gordon Jackson May 5, 1997 Page2 Again, thank you for your letter. If you would like further information on the progress of these discussions, please contact Rob Bosworth at the Alaska Department of Fish and Game at 465-4100. -· Sincerely, . -.. -.~ -....... . .. :.· : .· •• '· 'r,• .. -~ : .-:. ... ~:: ·..; •• • • ~ • • ·'' • --lo4·· -· .· ._.:. ·t ... ··.-:·_<~:Jj_ Enclosure .... ·. ~ . . ;·, - . -J! . • ··-J. -~ ·" MEMORANDUM To:·· Sally Gibert State CSU Coordinator FROM: Kathryn A.· Swiderski Natural Resources -Anchorage DATE: FILENO.: SUBJECT: State of Alaska Department of Law May 16,1997 661-97-0742 GBNP proposed rule ·. . ·CONFIDENTIAL; ATTORNEY- CLIENT COMMUNICATION Following is a--first draft of the Department ofLaw's comments on the . National Park Service's proposed rule regarding commercial fishing within Glacier Bay National Park. In sum, we object that the NPS has no authority for the proposed action wherever the State owns the submerged lands. State-owned lands and waters are not . "part of' GBNP, and ANILCA § 103(c) precludes application of the proposed rule to· state waters. . . Feel free to call if you have a,rty questions or comments. THE FEDERAL GOVERNMENT HAS NO AUTHORITY l'O REGULATE WATERS WITHIN THE BOUNDARIES OF GLACIER BAY NATIONAL PARK WHERE ALASKA OWNS THE SUBMERGED LANDS~ NPS has no authority to exercise regulatory authority over fisheries in marine waters within the boundaries of Glacier Bay National Park because the state owns the und~rlying lands and they therefore_are not part of the park. . The state-has consistently objected to previous attempts by NPS to grant itself extraterritorial authority in proposed rulemaking. See, e.g., Alaska's co111Ihents dated Nov. 1, 1991 (regarding proposed rule at 56 Fed. Reg. 37262 (Aug. 5, 1991)); Alaska's comments dated February 2, 1996 (regarding proposed rule at 60 Fed. Reg. · 62233 (Dec. 5, 1995)). The state reiterates its previous objeCtions to NPS' efforts to extend regulatory jurisdiction to lands and waters lawfully owned and managed by the state. Under the constitutional doctrine of equal footing, confirmed by the Sub~erged Lands Act, Alaska owns and is responsible for the management of all-water columns, shorelands, tidelands, and submerged lands beneath navigable waters, including the fish. • located within such waters. See 43 U.S.C. § 1301(e)("the term 'natural resources' [over whicl]. the state has authority under 4 3 U.S. C. § 1311] includes ... fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life"). . . The fact that the marine waters are within the designated boundaries of Glacier Bay National Park does not make them part of the park. Federal reservations often include nonfederallands, which do not fall within the authority of the particular agency to regulate. For example, in 1960 the Department ofinterior established the Izembek National Wildlife Range, which included boundaries extending through marine waters. As proposed in 1953, Izembek's boundary line cut across inlets and included islands, and was described as consisting of"500 square miles oflandtogether with 183 square miles of open waters." 19 Fed. Reg. 8076-77 (December 8, 1954). After statehood, the Department of Interior amended the language of the proposed withdrawals for the ;Wildlife Range, adding a sentence stating that the withdrawal did not include the lands beneath navigable waters as defined by the Submerged Lands Act. Therefore, the Izembek National Wildlife Refuge boundaries include submerged lands below the mean high tide line, but they are managed by the state rather than by the United States. See Izembek National Wildlife Refuge Final Comprehensive Conservation Plan, Environmental Impact Statement, and Wilderness Review, June 1985; Izembek Wilderness Proposal, United States Fish & Wildlife Service, March 1970. Further, the Alaska National Interest Lands Conservation Act (ANILCA) makes clear Congress' intention that state and private lands within park boundaries do not constitute part of the park. In ANILCA, Congress designated "cons_ervation system units" (CSUs), which by definition include all National Park System units in Alaska. 16 U.S.C . . § 3102(4). Congress included a provision to assure that nonfederallands within CSUs would not be considered part of the CSUs. Section 103(c) states in relevant part: Only those lands within the boundaries of any _conservat~on system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. 16 U.S.C. § 3103(c). The legislative history of ANILCA § 1 03( c) demonstrates Congress' intent to exclude nonfederallands from conservation system unit regulations. The history specifies.that "only public lands (and not State or private lands) are to be subject to the conservation system unit regulations applying to public lands." 126 Cong. Rec. S15129- 32 (daily ed. Dec. 1, 1980) (statement of Sen. Stevens); 126 Cong. Rec. H11111-4 (daily ed. Nov. 21, 1980) (statement of Rep. Udall). "Public lands" do not include marine waters overlying state-owned lands. See 16 U.S.C. § 3102. Section 103. further provides that only lands that are part of the CSU are subject to -federal regulation: No lands which, before, on, or after the date of enactment of this Act, are conveyed to the State, to any Native Corporation, or to any private party shall be ~ subject to the regulations applicable solely to public lands within such units .... 16 U.S.C. § 3103(c). ANILCA 's legislative history establishes that Congress created this provision fully aware of Kleppe v. New Mexico , 426 U.S. 529 (1976) and its progeny, which might arguably support extension of federal regulatory control over non-federally owned lands . NPS recognized Congress' regulatory exemption ofinholdings in promulgating 36 C.F.R. § 13.2(e). See 46 Fed. Reg. 31836, 31843 (June 17 , 1981)(ANILCA §§ 103(c) and 906(o) restrict the applicability ofNPS regulations to federally-owned lands within park boundaries; therefore , regulations in 36 C.F.R. Part 13 regarding NPS units in Alaska applied only on federally owned lands within the boundaries of any park area). The lands underlying marine waters within Glacier Bay National Park 's boundaries do not constitute part of the park, but are "inholdings" belonging to the state . See 43 U .S .C. § 1311(a); UtahDiv. ofStateLandsv. UnitedStates ,482U.S.193 (1987). Federal regulation therefore does not apply to these waters . If the NPS desires identical state and federal regulations addressing both state and federally owned lands or waters in certain instances or for certain issues, the state encourages NPS to discuss these with the appropriate state regulatory entity. Through a cooperative effort, the two agencies can lawfully achieve the goal of consistent regulation of especially significant issues . Without state consent and cooperation, however, NPS may not regulate fisheries in state waters as proposed. N:\NPS\GLBA-REG.DOL ~ \ \[) Lawmakers give $100,000 to defend park fishing By DIRK MILLER The Associated Press JUNEAU -Lawmakers are giving the state Department of Fish and Game $100,000 to de- fend commercial fishing in Glac- ier Bay National Park and Pre- serve. The National Park Service has proposed regulations that would phase out commercial fishing in some park waters in 15 years. Commercial fishing in the park's waters on the outer coast would still be allowed. Rob Bosworth, deputy fish and game commissioner, said the de- partment did not ask for the mon- ey. Bosworth said the agency will likely use it to work with fishing groups and other users and to re- view the Park Service's rules and environmental studies. "We will be able to beef up our involvement, there's no question about that," Bosworth said. . Assistant Attorney General Joanne Grace said Alaska asserts that the waters within the park boundaries are the state's and un- der its control. The Park Service has an opposite view, said Jim Brady, park superintendent. Brady said the Park Service worked in meetings with the state> fishing groups and others before coming out with its pro- posed regulations, which are to become final in October. Public comments on the rules are being accepted by the agency. Gov. Tony Knowles has asked the Park Service to reconvene those meetings to discuss the rules. A group of commercial fisher- men was behind the Legisla- ture's decision to fund the legal effort, said Sen. Jerry Mackie, D-Craig. Mackie said the fisher- men asked for help in fighting to keep the bay open to commercial fishing. "I hope it's a winnable fight," Mackie said. "I believe there are some traditional uses that have been occurring for years and years that ought to be allowed to continue." The money for Glacier Bay is coming from Law Department funds that were to be used for le- gal battles over federal-state is- sues. Mackie said the Glacier Bay situation seems to fit that catego- ry. The Legislature finished up its work earlier this month, but the Glacier Bay money has not yet been approved by Knowles. The commercial fishing group, Allied Fishermen of Southeast Alaska, is looking at resolving the Glacier Bay issue several ways, including trying to change federal law to al- low the harvesting to continue. Bruce Weyhrauch, an attorney for the fishing group, said the state money could best be spent . working with different groups and communities around Glacier Bay to come up with a solution to Please see Page 8-3, PARK RON ENGSTROM I Anchorage Daily News PARK: Lawmakers fund effort to back commercial fishing j Continued from Page B-1 the problem. If fishermen are kept out of Glacier Bay, they will end up participating in other fish- eries, Weyhrauch said, affecting communi- ties around Southeast. Besides going up against the Park Service, commercial fishermen also are facing a fed- eral court decision that found commercial fishing in the park's wilderness waters is pro- hibited. That decision was upheld by an ap- peals court. The money measure also covers subsis- tence fishing, which Brady said is banned in the park. He said the Park Service is working with Native groups to come up with a cultural or educational Native fishery. printed for Sally Gibert Author: Sally Gibert at Gov_Anchorage_DGC Date: 4/25/97 12:23 PM Priority: Normal TO: robertb®FishGame.Alaska (Bosworth, Robert) at CC2MHS1 CC: Alan Phipps CC: Diane Mayer at Gov_Juneau_DGC Subject: Re: Glacier Bay update ------------------------------------Message Contents ------------------------------------ Thanks for the update. Sounds like a good plan all the way around, consistent with what I've been thinking would be most productive and appropriate at this stage. I like the idea of the state getting out in front of the NPS, so it doesn't appear they have us on leash. Reply Separator Subject: Glacier Bay update Author: robertb®FishGame.Alaska (Bosworth, Robert) at CC2MHS1 Date: 4/25/97 9:52 AM In a meeting yesterday with the governor on Glacier Bay commercial fisheries we discussed an approach for the near term. Regarding regs, I clarified for him that the reg review process we are presently engaged in is not aimed at developing a state "position" at this time, but at understanding the regs and their implications, and preparing ourselves for upcoming discussions. I believe this is consistent with discussions you and I have had, but let me know if I'm wrong. The governor asked that we prepare a letter to the NPS requesting immediate re-convening of the stakeholder sessions. I will get a draft of this to you and others soon. I also will be drafting another letter to stakeholders describing this request.I want to get this done soon, so that we're ahead of the NPS. Questions? give me a call. Thanks. Subject: ~~-P~ ~ ~/'f-f~. ~r~ Glacier Bay Regs ~ ~ If, ~ /{, , J-ZJ -~ { Dick Mylius <dickrn@dnr.state.ak.us> ~ ~ · I''~ '...S ~ j From: Date: Thu, 8 May 97 12:13:41 PDT ~...41~ rf / /"~·v-eeP.~ andyp, janea, jimc, pattyb ~ To: Patty -both Andy Pekovich and I reviewed the Glacier Bay Commercial Fishing - Proposed Rule, that you sent to Jane on April 28. Neither Andy or I have been monitoring this issue really close, our only comment is that NPS is exceeding it's authority over management of commercial fishing on state owned tidelands and submerged lands. NPS argues they are not state owned. DGC, ADFG, and the AG's are aware of this issue. We have no comments on the specifics of the regulations, as they affect commercial fishing, which i s an ADFG issue. One specific comment on the Background information prepared by NPS, on page 4, NPS refers to various 1934, 1936, 1937, 1941, and other federal regulations as justification for its current regulatory authority. These old regs are irrelevant to NPS's current authority as they were promulgated when the federal government did regulate commercial fishing. The Statehood Act transferred the regulation of commercial fisheries from the feds to the state. Dick CC: Jane A, Andy P, Jim Culbertson (Nav project) JpoLf.? NEWS-- U.S. DEPARTMENT OF THE INTERIOR OFFICE OF THE SECRETARY FOR IMMEDIATE RELEASE April16, 1997 Stephanie Hanna (0) 202/208-6416 John Quinley (0) 907/257-2696 FRAMEWORK ESTABLISHED FOR RESOLUTION OF COMMERCIAL FISIDNG AND PROTECTION OF GLACIER BAY NATIONAL PARK Proposed regulations published in the Federal Register today would reinitiate and encourage discussions concerning the future of commercial fishing activities within Glacier Bay National Park in southeastern Alaska. The National Park Service has established a six month comment period to enable all interested parties ample opportunity to present information and views. Commercial fishing is currently illegal in Glacier Bay National Park. Long-standing National Park Service regulations prohibit commercial fishing generally in national parks, and there is no existing special regulation to permit it in Glacier Bay. Also, as recently confirmed by the U.S. Court of Appeals for the Ninth Circuit in Alaska Wildlife Alliance v. Jensen, the Wilderness Act prohibits commercial fishing in the park's designated wilderness waters. Despite these prohibitions, however, conimercial fishing is occurring throughout the park. Since 1990, there have been attempts to address this situation through administrative action, legislative proposals, litigation, and extensive discussions .among concerned parties. In fact, in a 1991 proposed rule that is formally withdrawn by today's publication, the Bush Administration would have phased out all commercial fishing in park waters within seven years. "Today' s proposed rule reflects years of meetings and discussions with local stakeholders, the conservation community, and the State of Alaska, to establish a fair process and seek common ground while living up to our responsibility to protect some of the premier natural resources in the world," Secretary Babbitt said. "I expect these proposed regulations to be the focus of vigorous, open, and thorough debate in upcoming months. It's time now to identify the best solution and get it done." The proposed rule would essentially establish two management regimes in Glacier Bay National Park, one for "Glacier Bay proper" where commercial fishing would be phased out over a 15 year period, and another for the "outer marine waters" outside Glacier Bay proper where commercial fishing would be authorized. It would ensure protection of park resources (more) and values and minimize conflicts among visitors pursuing different yet appn;>priate park experiences. It would also provide unique opportunities for scientific research in a protected · marine ecosystem. In recognition of the adjustments facing fishermen who have a history of use in Glacier Bay proper, the rule would establish a fair transition period and offer other fair treatment. . . Within Glacier Bay proper, commercial fishing would continue for a 15-year phase-out period for halibut, salmon, Dungeness and Tanner crab by individual fishermen with a reasoliable history of participation in these specific Glacier Bay fisheries. Moreover, commercial fishing would be prohibited from May to September to minimize conflicts with visitor use and to protect important wildlife species that use the bay during summer months. Buyouts of commercial fishing operations within Glacier Bay would be considered, subject to · wi~ling sellers and available funding. Commercial fisheries in the park's marine waters located outside Glacier Bay proper (Icy Strait, Cross Sound, and the Outer Coast) would continue under a cooperative management plan with the State of Alaska and be implemented through the Alaska Board of Fisheries. NPS cooperative management plan objectives would, among other things, ensure the protection of park resources and value~. Commercial fishing in marine wilderness areas would be prohibited immediately following publication of a fmal rule to implement the Wilderness Act's prohibition on commercial activities unrelated to visitor use. Marine wilderness comprises about 10% of the park's 553,000 acres of marine waters. -· · Glacier Bay is a superlative u~it of the National Park System, with outstanding natural resources and a rich cultural history-. D~signated as a national monument in 1925, and more· recently re-designated and expanded by Congress as a national park and preserve in 1980, the park's 3.3 million acres constitute a dramatic and dynamic wilderness, mountain, and glacial area of land and sea. Marine protected areas are quite rare and the park's approximately 553,000 acres of marine waters comprise the largest protected marine area on the Pacific coast of North America. The park provide's unique and extremely valuable opportunities for scientific monitoring and research. The Park Service is preparing an environmental assessment that analyzes alternatives and impacts relevant to today's proposed rule. This document will be available by early June, and the public will be invited to comment on it as well as the proposed rule. An extended public comment period, through October 15, 1997, will be provided for the proposed rule and the environmental assessment. ·Public workshops and hearings will be held during the comment period: The Park Service intends to publish a fmal rule early in 1998. Copies of the proposed rule can be obtained by writing or phoning: Superintendent, Glacier Bay National Park and Preserve, P. 0. Box 140, Gustavus, Alaska 99826; phone number (907) 697-2230. The proposed rule will also be posted on the park's web site, accessible at: www.nps.gov\glba. ' -DOl- United States Department of the Interior NATIONAL PARK SERVICE IN REPLY REFER TO : Ll619b April17, 1997 Glacier Bay National Park and Preserve P .O . Box 140 Gustavus, Alaska 99826..0140 GOY AN(.;nvn ..,u t Otv!B ERNM ENTAl COORDINATION Dear~5Ue'/)- The S ... ecretary oflnterUblished a proposed rule in the Federal Register on April 16 addressing commercial fishing within Glacier Bay National Park. The proposed rule is intended to enable and encourage full public discussion of the many important issues -legal, policy, resource, economic and human-associated with commercial fishing within the park. In recent years, NPS has worked closely with local stakeholders , the conservation community, and the State of Alaska toward resolution of these issues . The rulemaking process now allows this important work to move forward toward a decision . The proposed rule incorporates many of the ideas generated in recent years . Please recognize that the proposed rule is just that.. a proposal, and it is only following a thorough public review of the alternatives that a decision will be made . This rule should be reviewed and considered in context with the alternatives described in the forthcoming environment al assessment, expected to be available in June . A prolonged public comment period , through October 31, will be provided for the pr oposed rule and EA to allow ample opportunity for public review and discussion . NPS and Department of Interior objecti ves for resoluti~:m of commercial fishing issues in the park include the protection of park resources and values ; minimized conflicts with visitor use of the park ; recognition of the special relationship that the Hoonah T lingit have with the park and development of a Native cultural fishing opportunity.; providing unique opportunities for scientific research in a protected marine system ; and , equitable treatment of commercial fishennen . We ask for your ideas and commitment toward the achie v ement of these objectives. Ultimately, the intent is to incorporate the best ideas available in a final rule earl y in 1998 . Thank y ou for your interest in the management of Glacier Bay National Park. In the months ahead , we look forward to hearing from and working with you and the many other people with a stake in the outcome of this critical park issue . We 'll send along a meeting schedule and an y other materials , as they become available . In the meantime , please feel free to contact the park at (907) 697-2230 if we can be of assistance. Sincerel y , {fr/1 ~~ r J. M . Brady 0 Superintendent OFFICE OF THE G OVERNOR OFFICE OF MANAGEMENT AND BUDGET DIVISION OF GO VER NMEN TAL COORDINATION SOUTHCENTRAL REGIONAL OFFICE 3601 •c • STREET, SUITE 370 ANCHORAGE, ALASKA 99503-5930 a CENTRA L OFFICE P.O. BOX 11 0030 J UNEA U, A LA SKA 998 11-0030 TONY KNOWLES, GOVERNOR MEMORANDUM PH: (907) 269-7470/FAX: (907) 56 1-6134 PH: (907) 465-3562/FAX : (907) 465-3075 a PIPELINE COORD INA TOR 'S OFFICE 411 WEST 4 TH AVENUE, SUITE 2C ANCHORAGE, ALASKA 99501-2343 PH: (907) 271 -4317/FAX: (907) 2 72 -0690 TO: FROM: State CSU Contacts See Distribution List Sally Gibert r State CSU Coordinator Division of Governmental Coordination DATE: April18 , 1997 TELEPHONE: (907) 269-7477 FAX: (907) 561-6134 E-MAIL: sall y_gib ert@gov.state .ak .us SUBJECT: Glacier Bay Commercial Fishing, Proposed Rule FOR YOUR REVIEW Enclosed for your review is the National Park Service Proposed Rule addressing commercial fishing within the boundaries of the Glacier Bay National Park. The comment period extends for six months, ending October 15, 1997 . The lengthy comment period is designed in part to allow extra time for dialogue amongst stakeholders and the NPS. The State has been, and will continue to be fully engaged in these discussions. On the state side , we need to compile all agency comments, perspectives and considerations early in this review phase. This early input will not be used to immediately stake out a definitive position, but rather to make sure we have the best informat ion and compilation of views as state representatives interact with other stakeholders. A formal state position will probably not be developed until late in the review period. Therefore , please review the proposed regulations and send your department 's consolidated comments to me by Friday, May 16, 1997. (If you refer to page numbers, please use the enclosed version for consistency. Email comments are fme). If there are others in your department with expertise in this matter, their views may be included as well. Unlike typical agency reviews of federal actions , conflicting perspectives need not be resolved at the departmental stage. All comments will be compiled and made available at the policy level. Thank you for your attention. If you have any questions , please contact me at the number or email address above . 01 -A35LH @ pr~nted on recycled paper b y C. 0 cc: Fran Ulmer, Lt Gov. Sally Rue, Lt. Gov's Office Bob King, Gov's Office Mary McDowell, Gov' s Office Diane Mayer, DGC-Jun Rob Bosworth, DFG-Anch Tina Cunning, DFG-Anch Terry Haynes, DFG-Fbx Patty Bielawski, DNR-Anch · Priscilla Wohl, DEC-Anch Elizabeth Barry, AG's-Anch Wendy Wolf, DCED-Tourism Raga Elim, Gov's Office-WDC Stan Leaphart, CACF A-Fbx printed for Sally Gibert Author: robertb®FishGame.Alaska (Bosworth, Robert) at CC2MHS1 Date: 4/16/97 1:11 PM Priority: Normal TO: Sally Gibert at Gov_Anchorage_DGC TO: Fran Ulmer at Gov_Juneau_Capitol TO: Bob King at Gov_Juneau_Capitol TO: Sally Rue at Gov_Juneau_Capitol TO: Mary McDowell at Gov_Juneau_Capitol TO: BobC®FishGame.Alaska at CC2MHS1 CC: tinac1®FishGame.Alaska at CC2MHS1 CC: ScottM®FishGame.Alaska at CC2MHS1 Subject: FW: Glacier Bay Proposed Rule -attached ------------------------------------Message Contents ------------------------------------ From: Randy King To: Bosworth, Robert Subject: Glacier Bay Proposed Rule -attached Date: Wednesday, April 16, 1997 12:39PM [[ GLBA-FSH.FIN : 3376 in GLBA-FSH.FIN ]] Content-Description: cc:Mail note part Rob, The proposed rule is attached; I'll send along a copy of the Federal Register version when available. I just received the DOI news release and will fax a copy to you. You raised one question about the legality of fishing in the park - given the 9th Circuit's recent opinion -that I never responded to. My read of the majority opinion is that the 9th Circuit clearly affirmed NPS discretionary authority to regulate commercial fishing within parks, while finding no statutory prohibition on commercial fishing within the non-wilderness waters of the park. The Circuit Court did not say that commercial fishing within the park (non-wilderness, again) is legal under current NPS regulations .. only that it is not prohibited by statute. -Randy • ' \ \' ' ~' \ Billing Code: 4310-70-P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 RIN 1 024-AB99 Glacier Bay National Park, Alaska; Commercial Fishing Regulations AGENCY: National Park Service, Interior ACTION: Proposed rule; withdrawal of earlier proposed rule SUMMARY: The National Park Service (NPS) proposes this rule to provide the legal basis for reinitiating public discussion in order to arrive at a prompt final resolution of the longstanding controversy concerning commercial fishing activities in Glacier Bay National Park (NP) by the end of 1997. In addition to seeking comments, NPS expects during the comment period to continue discussions on the record with interested parties including the State of Alaska. The proposed rule, intended to provide a framework for enhanced review and comment by all interested parties, would implement fair measures to ensure protection of the values and purposes of Glacier Bay NP, including the preservation, enjoyment, and scientific value of the park's unique marine ecosystem. In general, the proposed rule would prohibit all commercial fishing in Glacier Bay proper but provide certain limited exemptions over a 15 year phase-out period, and authorize established commercial fishing in the park's marine waters outside Glacier Bay proper subject to reexamination at the end of 15 years. To authorize the specific commercial fishing activities, the proposed rule would provide specific exemptions for Glacier Bay NP from the nationwide prohibition on such activities in units of the National Park System. For the phase-out in Glacier Bay proper, the proposed rule would exempt qualifying commercial fishermen who can demonstrate a reasonable history of participation in a specific fishery to continue fishing for a limited period of time on a seasonal basis. For the marine waters outside Glacier Bay proper, the proposed rule would generally exempt existing commercial fishing activities under a Federal-State cooperative management program consistent with protection of park resource values. With respect to designated wilderness waters in Glacier Bay NP, since the Wilderness Act prohibits this kind of commercial enterprise in designated wilderness, commercial fishing activities must cease in these areas. However, certain crab fishermen essential to an existing multi-agency research project in the Beardslee Islands area may be authorized to take crab in the locations specified by the research project for the remaining five to seven years of the project pursuant to a "research project" special use permit. NPS has previously determined that this research project is consistent with, and is likely to produce significant benefits for, wilderness 'I resource management. The proposed rule would not address legislatively authorized commercial fishing and related activities in the Dry Bay area of Glacier Bay National Preserve. 'This proposed rule supersedes and withdraws a previously proposed rulemaking on this subject published on August 5, 1991(56 FR 37262). DATES: Written comments postmarked on or before October 15, 1997, will be accepted. For information on public meetings and discussion sessions see PUBLIC PARTICIPATION at the end of SUPPLEMENTARY INFORMATION. ADDRESSES: Comments should be directed to James M. Brady, Superintendent, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. FOR FURTHER INFORMATION CONTACT: J~es M. Brady, Superintendent, National Park Service, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska, 99827, telephone: (907) 697-2230. · SUPPLEMENTARY INFORMATION: Background Establishment of Glacier Bay National Park and Preserve Glacier Bay National Monument was established by presidential proclamation dated February 26, ~925. 43 Stat. 1988. The monument was established to protect a number oftidewater and other glaciers, and a variety of post glacial forest and other vegetative covering, and also to provide opportunities for scientific study of glacial activity and post glacial biological succession. The early monument included marine waters within Glacier Bay north of a line running approximately from Geikie Inlet on the west side of the bay to the northern extent of the Beardslee Islands on the east side of the bay. The monument was expanded by a second presidential proclamation on April18, 1939. 53 Stat. 2534. The expanded monument included additional lands and marine waters consisting ofall of Glacier Bay; portions of Cross Sound, North Inian Pass, North Passage, Icy Passage, and Excursion Inlet; and Pacific coastal waters to a distance of three miles seaward between Cape Spencer to the south and Sea Otter Creek, north of Cape Fairweather. Glacier Bay National Monument was redesignated as Glacier Bay National Park and Preserve and enlarged in 1980 by the Alaska National Interest Lands Conservation Act (ANILCA). 16 U.S.C. § 410hh-1; see Sen. Rep. No. 413, 96th Cong., 1st Sess. 163 (1979). The legislative history of ANILCA indicates that certain NPS units in Alaska, including Glacier Bay National Park, 11 ••• are intended to be large sanctuaries where fish and wildlife may roam freely, developing their social structures and evolving over long periods of time as nearly as possible without the changes that extensive human activities would cause. 11 ld. at 13 7; see _ Cong. Rec. H10532 (1980). Congress described the park as including the marine waters, and depicted the park accordingly on the official maps. 2 The marine waters of Glacier Bay National Park have been fished commercially since prior to the establishment of Glacier Bay National Monument. Commercial fishing continued under federal regulation after the national monument's establishment in 1925 and its subsequent enlargement in 1939. Since 1966, however, regulation and legislation have prohibited commercial fishing in Glacier Bay National Monument and Glacier Bay National Park. Nontheless, commercial fishing is still occuring in Glacier Bay National Park. The Act of June 6, 1934, 43 Stat. 464, authorized the Secretary of Commerce to "set apart and reserve fishing areas in any of the waters of Alaska ... and within such areas ... establish closed seasons during which fishing may be limited or prohibited .... " The first Alaska Fishery Regulations of the Bureau ofFisheries, promulgated between 1937 and 1939, addressed fisheries in an area designated as the Icy Strait district including Glacier Bay National Monument. See 2 FR 305 (February 12, 1937); 4 FR 927 (February 15, 1939). Those regulations, and regulations promulgated by the U.S. Fish and Wildlife Service (FWS) between 1941 and 1959, set allowances for and restrictions on commercial fisheries in areas within the boundaries of Glacier Bay National Monument. See 6 FR 1252 (March4, 1941), 50 CFRPart222; 16 FR2158 (1951), 50 CPR Part 117; 24 FR 2153 (March 19, 1959), 50 CPR Part 115. Early NPS fishing regulations prohibited any type of fishing "with nets, seines, traps, or by the use of drugs or explosives, or for merchandise or profit, or in any other way than with hook and line, the rod or line being held in the hand .... " 6 FR 1627 (March 26, 1941), 36 CPR§ 2.4. However, in conjunction with the aforementioned FWS regulations, the 1941 NPS regulations also stated that "commercial fishing in the waters of Fort Jefferson and Glacier Bay National Monuments is permitted under special regulations." ld. NPS regulations continued to allow commercial fishing in Glacier Bay National Monument through 1966 in accordance with special regulations approved by the Secretary. See 20 FR 618 (1955), 36 CPR§ 1.4; 27 FR 6281 (July 3, 1962). In 1966, NPS revised its fishing regulations so as to prohibit commercial fishing activities in Glacier Bay National Monument. Although the 1966 NPS regulations, unlike previous versions, only prohibited fishing "for merchandise and profit" in fresh park waters, these same regulations generally prohibited unauthorized commercial activities, including commercial fishing, in all NPS areas. See 31 FR 16653, 16661 (December 29, 1966), 36 CPR§§ 2.130)(2), 5.3. In contrast to earlier NPS regulations, the 1966 regulations did not contain specific authorization for commercial fishing in Glacier Bay National Monument. The 1978 NPS "Management Policies" reiterated that "[c]ommercial fishing is permitted only where authorized by law." Furthermore, in 1978, the Department of the Interior directed FWS to convene an Ad Hoc Fisheries Task Force to review NPS fisheries management. See 45 FR 12304 (February 25, 1980). The task force concluded that the extraction offish for commercial purposes was a nonconforming use of park resources which should be phased out. As already noted, in 1980, ANILCA redesignated Glacier Bay National Monument to Glacier Bay National Park and Preserve, enlarged the area, and designated wilderness that included 4 marine waters within the park. 16 U.S.C. §§ 410hh-1, 1132 note. ANILCA specifically authorized certain park areas where commercial fishing and related activities could continue, including the Dry Bay area of Glacier Bay National Preserve but not any area of Glacier Bay National Park. Id. § 410hh-4. The 1983 revision of the NPS general regulations, still applicable, included a prohibition on commercial fishing throughout marine and fresh waters within park areas systemwide, unless specifically authorized by law. 48 FR 30252, 30283; 36 CPR§ 2.3(d)(4). The 1988 version of NPS "Management Policies," still current, reiterates this approach. However, certain NPS documents during the 1980's suggested that some commercial fishing would continue in Glacier Bay. For example, the 1980 and 1985 Glacier Bay whale protection regulations implicitly acknowledged commercial fishing operations in Glacier Bay proper. 36 CPR§ 13.65(b). Also, the park's 1984 General Management Plan stated the following: Traditional commercial fishing practices will continue to be allowed throughout most park and preserve waters. However, no new (nontraditional) fishery will be allowed by the National Park Service. Halibut and salmon fishing and crabbing will not be prohibited by the Park Service. Commercial fishing will be prohibited in wilderness waters in accordance with ANILCA and the Wilderness Act. The General Management Plan defined "traditional commercial fishing practices" to include "trolling, long lining and pot fishing for crab, and seining (Excursion Inlet only) in park waters .. . . " General Management Plan at 51. Finally, the 1988 Final Environmental Impact Statement concerning wilderness recommendations for Glacier Bay National Park referred to the continuation of commercial fishing in non wilderness park waters. Events Leading to This Proposed Rulemaking NPS regulations have prohibited commercial fishing in Glacier Bay National Park (and the predecessor National Monument) since 1966, and the Wilderness Act has prohibited commercial fishing in the wilderness waters within Glacier Bay NP since 1980, yet commercial fishing activities have continued in both wilderness and non-wilderness areas of the park. Since 1990, there have been attempts to resolve this situation through litigation, an earlier proposed rulemaking, and proposed legislation. In 1990, the Alaska Wildlife Alliance and American Wildlands filed a lawsuit challenging the NPS's failure to bar commercial fishing activities from Glacier Bay NP. Alaska Wildlife Alliance v. Jensen, No. A90-0345-CV (D. Ak.). In 1994, the district court concluded that "there is no statutory ban on commercial fishing in Glacier Bay National Park provided, however, that commercial fishing is prohibited in that portion of Glacier Bay National Park designated as wilderness area." An appeal of the district court's ruling is currently pending before the U.S. Court of Appeals for the Ninth Circuit. Alaska Wildlife Alliance v. Brady, Nos. 95-25151 and 5 95-35188 (9th Cir.). Close to the time that the plaintiffs in the above litigation embarked on a judicial approach to resolution of the commercial fishing issues, the State of Alaska's Citizens Advisory Commission on Federal Areas hosted a series of public meetings in local communities to discuss the issues. After participating in these meetings, the NPS decided to draft a regulatory approach to resolving the issues. NPS published its proposed rule on August 5, 1991 (56 FR 37262). In essence, the proposed rule would have (a) clarified the prohibition on commercial fishing in designated wilderness waters, and (b) exempted commercial fishing in other park waters from the nationwide regulatory prohibition for a "phase out" period of seven years. NPS held ten public meetings on the proposed rule, received over 300 comments, and prepared drafts of a final rule. At the State's request, however, the Department of the Interior refrained from issuing a final rule in 1993, and instead agreed to discuss with State and Congressional staff the possibility of resolving the issues through a legislative approach. In 1992, Congress had considered but not enacted proposed legislation on commercial fishing in Glacier Bay NP. During the 1993-1994 discussions about legislative and regulatory possibilities, the participants enhanced their understanding of the facts, interests, options, and potential obstacles relevant to any final solution. Although the discussions did not lead to a legislative proposal, they have influenced the Department of the Interior's approach to this proposed rulemaking. Between Fall1995 and Spring 1996, officials from Glacier Bay NP and the Alaska Department ofFish and Game co-hosted several meetings in southeast Alaska involving selected "stakeholders" interested in trying to resolve the commercial fishing controversy. Meanwhile during 1995 and 1996, NPS revised its management of vessels at Glacier Bay National Park through issuance of a plan and regulations. See 61 FR 27008 (May 30, 1996). Although the vessel management rule exempted commercial fishing vessels (engaged in fishing and properly licensed) from entry limits established for other motorized vessels, the rule's closure of certain designated park waters to motorized uses created the potential to affect certain commercial fishermen. See 36 CFR § 13.65(b)(3)(vii). In response to comments in that rulemaking, NPS noted its separate efforts to address the future of commercial fishing in Glacier BayNP. 61 FRat27013,27015 (May30, 1996). Proposed Action on Commercial Fishing Circumstances are now ripe to go forward with this new proposed rulemaking effort, taking advantage of the momentum toward a solution described above. This action authorizes full public participation, and will serve to facilitate constructive discussion, and to craft a comprehensive resolution to the controversy before the 1998 summer visitor season at Glacier Bay NP. Toward these ends, NPS is today proposing a rule that is, indeed, a proposal which can serve to structure the anticipated public discussion. 6 The district court's decision in Alaska Wildlife Alliance v. Jensen, above, upholding the NPS's interpretation of the NPS Organic Act and the Wilderness Act, demonstrates that rulemaking action is necessary. A rulemaking action can determine what commercial fishing activities are appropriate in Glacier Bay NP's waters consistent with the park's conservation and other objectives established by statute and proclamation. Indeed, the currently applicable regulatory prohibition on commercial fishing activities in all Glacier Bay NP waters necessitates a rulemaking to authorize any commercial fishing activities in the nonwilderness waters, even for purposes of "phasing out" the activities over a specified time. NPS has several objectives for this rulemaking. First, NPS seeks to ensure fulfillment of the "fundamental" statutory purpose of the park, i.e., preservation of park resources and values, which in Glacier Bay NP includes protecting the park's marine ecosystem. Second, NPS seeks to provide for the visitors' enjoyment of these resources and values and to minimize conflicts among visitors pursuing different yet appropriate park experiences. Third, NPS seeks to provide unique opportunities for scientific study that will benefit the public and enhance resource management. Balancing these objectives, NPS also seeks to act fairly toward individual commercial fishermen with a history of participation in park fisheries, to recognize the important cultural ties that the Hoonah Tlingit people have with respect to Glacier Bay, and to develop an effective partnership with the State of Alaska through the cooperative management program for Glacier Bay NP fisheries. The proposed rule described below differs from the rule that NPS would have proposed even a few years ago. Several factors have influenced the shape oftoday's proposed rule, including the passage of many years with the continuation of unauthorized commercial fishing prohibitions in Glacier Bay; potential socioeconomic harm from approaches that would mandate immediate implementation of prohibitions throughout park waters; related equitable considerations for certain fishermen with an historical pattern of use in park waters; the existence of an exciting research project already underway in Glacier Bay proper that can piggyback this rulemaking to expand scientific understanding of the fishery resources and natural processes to everyone's benefit. As participants in the 1995-1996 Alaska-based discussions may perceive, the proposed rule borrows in large measure from the consensus building process in which they were engaged, but provides notice and encourages comment from all interested parties in formulating the optimal solution for Glacier Bay NP, a widely cherished unit of theN ational Park System. Overview of Proposed Rule The proposed rule would prohibit all commercial fishing activities in Glacier Bay proper consistent with existing NPS regulation and policy. This prohibition would bar all such activities during the primary visitor use season beginning in 1998. NPS would offer a 15 year exemption from the prohibition outside the primary visitor use season, however, to accommodate a phase out for fishermen who can demonstrate historical reliance on a specific Glacier Bay fishery. Qualifying criteria for this exemption would include verified participation in the fishery during six of the last ten years. Subject to the availability of funds for this purpose, NPS (or a third party) could offer to purchase and retire the 15 year exemption permits from fishermen willing to sell them. 7 With respect to designated wilderness waters in Glacier Bay NP, commercial fishing activities must cease in these areas in compliance with the language and intent of the Wilderness Act as recently confirmed in Alaska Wildlife Alll.ance v. Jensen, above. However, certain crab fishermen who have been part of the existing multi-agency research project in the Beardslee Islands area may be authorized to take crab in the locations specified by the research project for the remaining five to seven years of the project subject to a special use permit. The proposed rule would generally authorize commercial fishing to continue in the marine waters outside Glacier Bay proper (the "outer waters") by exempting such fishing from the otherwise applicable National Park System-wide prohibition on commercial fishing. This exemption would be subject to re-examination to allow consideration of new scientific and other relevant information at the end of 15 years. The proposed rule would restrict commercial fishing activities in the outer waters to well established fisheries and gear types. Commercial fishing activities in the outer waters, as well as those in Glacier Bay proper during the phase out period, would be governed by a cooperative fisheries management plan developed with the State of Alaska and implemented through the Alaska Board of Fisheries subject to the Secretary of the Interior's authority to protect park resource values. The Secretary, through NPS, would cooperatively ensure adherence to the plan under the provisions of36 CPR§§ 2.3(a) and 13.21(b). Although the proposed rule as drafted does not contain a provision requiring additional limitations on, or a phase out of, commercial fishing in certain bays in the outer waters, NPS seeks comments on the inclusion of such protections in special cases, particularly for Lituya Bay on the Outer Coast and Dundas Bay in Icy Strait. These bays are rich in biological resources and scenic beauty, and offer exceptional opportunities for park visitors. Glacier Bay This proposed rule would prohibit commercial fishing in the non wilderness waters of Glacier Bay proper, but would provide a seasonal exemption from that prohibition for 15 years for fishermen who demonstrate a reasonable history of participation in a specific Glacier Bay fishery. Commercial Fishing Prohibition. The proposed rule would end commercial fishing in Glacier Bay proper within 15 years. This action would bring Glacier Bay into conformance not only with the general policy and rule applicable to units of the National Park System, but also with the particular objectives underlying the establishment of Glacier Bay National Park and its predecessor Glacier Bay National Monument. The value of Glacier Bay as a protected marine ecosystem, rich in biological resources and special in its dynamic interactions with glacial and terrestrial systems, has never been higher. Protected marine ecosystems are scarce commodities. Examples of overfishing and overuse of marine waters have become increasingly common. The commercial fishing ban in Glacier Bay will enhance the protection of the park's ecological resources, while also reducing a variety of use conflicts with visitors seeking the kinds of recreational and inspirational experiences intended to be provided by national parks. 8 Limited Exemption from Prohibition. The proposed rule would offer a lim~ted exemption from the prohibition on commercial fishing in Glacier Bay proper for purposes of equitably phasing out fishermen who have developed an historical reliance on a specific affected fishery. The key terms of this limited exemption include the folloWing: , (a) Fifteen Years. The exemption, and all commercial fishing in Glacier Bay proper; would terminate in 15 years. This period of time sho:uld allow fishermen reasonable opportunity, where necessary, to adjust their fishing activities to areas outside Glacier Bay proper, amortize their current investment in fishing vessels and gear, or in many cases, continue fishing untit retirement .. In the 1991 proposed rule, NPS offered a seven year exemption to phase out. commercial fishing in Glacier Bay NP, and the Department ofthe Interior recommended a three to five year phaseout of Glacier Bay proper during the 1993-1994 discussions. The 15-year phase out proposed in this rule responds to comments made by fishermen concerning the perceived inadequacy of the seven year phase out proposed in .the 1991 NPS proposed rule. It also reflects a positio~ that was emerging in the 1995-1996 Alaska-based discussions. NPS welcomes comment on the appropriate length of the exemption period. · . (b). Outside the Primary Visitor Use Season. ·The exemption would be available throughout the 15 years only from October 1 to April30, i.e., outside the primary visitor use season in Glacier Bay proper. Accordingly, beginning on May 1, 1998, commercial fishing would be prohibited in Glacier Bay NP during the primary visitor season, May 1 through September 30, to achieve substantial reduction in resource impacts and visitor use conflicts. NPS believes that the fishermen who would likely be eligible to qualify for the exemption in· Glacier Bay proper (see criteria below) would generally be able to adjust their fishing to the October ~hrough April time frame. during the 15-year phase out. Glacier Bay National Park is truly a world-class park, with spectacular resources and a rich . . cultural history. The park is one of Alaska's premier visitor attractions, contributing significantly to the tourism economy of local conununities and Southeast Alaska. Park visitation has doubled within the past ten years to over 300,000 visitors in 1996, a reflection of increasing visitor interest in the park and Alaska. Visitor use, formerly concentrated in a few short summer "• . ' months, now encompasses an expanding visitor use ~eason stretching from April through September. Commercial fishing vessels are currently the only motorized vessels that are not expressly subject to entry limits and certain other restrictions in Glacier Bay proper. Since NPS vessel regulations were published for Glacier Bay in 1985 (50 FR 19886), the number of motorized vessels allowed in Glacier Bay during the summer months, including cruise ships, tour boats, charter vessels, and private boats, has been closely regrilated. The park's recently completed Vessel Management Plan (1996) further refined the management of vessel traffic within Glacier Bay, provided increased opportunities for visitor access, enhanced protection of park resources . (~,.marine mammals and sea birds),.and.facilitated a range of high quality recreational opporturiities for park visitors. All motorized vessels, with the sole exception of commercial fishing vessels, have been limited to daily and seasonal entry caps. Park regulations have also 9 exempted commercial fishing vessels from certain vessel maneuvering requirements designed to minimize disturbance of endangered humpback whales within Glacier Bay. In these respects, unathorized and unregulated commercial fishing vessel activity within Glacier Bay during the summer visitor use season has been inconsistent with NPS vessel regulations designed to protect park resources, provide for equitable public use ofthe park, and enhance the quality of the visitor experience at Glacier Bay. This visitor use season prohibition on commercial fishing activities would minimize conflicts with other visitor activities, including competition for --and, in some cases, gear conflicts within --limited anchorages. Commercial fishing in Glacier Bay proper has disturbed visitors seeking opportunities to experience nature, quiet, solitude, or an escape from the indicia of modem civilization. This visitor use season prohibition would also reduce the effect of unlimited numbers of commercial fishing vessels on sensitive park resources, and would improve the background conditions for critical studies required by the Vessel Management Plan. The visitor use season closure of Glacier Bay to commercial fishing would almost exclusively affect Dungeness crab (June IS-August IS) and halibut fisheries (March IS-November IS) under current State and International Pacific Halibut Commission (IPHC) regulations. However, federal and State fisheries regulations do permit fishing opportunities for halibut and Dungeness crab during the October I-April30 exemption period. Halibut, for example, would still be available for harvest in Glacier Bay for three months under this proposed rule (March IS-April 30, and October I-November IS); Dungeness crab for two months (October I-November 30). Halibut fishermen, in particular, would have ample opportunity to fish outside Glacier Bay during the proposed May I-September 30 prohibition period. Under the IPHC management system, fishermen have eight months to fish within a large management area (of which Glacier Bay is but a portion) to catch their allotted Individual Fishing Quota (IFQ), i.e., pounds of halibut that may be harvested each year. Very little trolling activity for salmon occurs in Glacier Bay during the summer months under current fishing practices and State regulations, and the proposed visitor use season prohibition would be expected to have minimal impact on the activities oftroll fishermen. Although the proposed rule would bracket the visitor use season from May I through September 30, NPS solicits comments on the use of a different visitor use season during which all commercial fishing in Glacier Bay proper would be prohibited beginning in I998. In previous comments and discussions, fishermen have suggested a shorter season (June I though August 3I ), and others have suggested a "middle" position of May IS through September IS. (c) Grandfathered (i.e~, Qualifying) Fishermen. The fifteen year exemption would be available to individual owners of valid fishing permits who can demonstrate a history of consistent participation in the specific Glacier Bay fishery for which an exemption is sought. The primary criteria would be documented participation in a given fishery in Glacier Bay proper for at least six of the last ten years (I987 -I996), as supported by an affidavit, verified by a minimum number of reported landings from within Glacier Bay each of the six years, and perhaps corroborated by other supporting information. The minimum number of landings 10 required would vary by fishery. For halibut, salmon, and tanner crab, the minimum number of landings in each qualifying year would be one. Ten landings ofDungeness crab would be required in each qualifying year. With these criteria, NPS would hope to identify those fishermen with a consistent (not intermittent or long past) reliance on a Glacier Bay fishery. NPS would also seek the assistance of the State of Alaska, the International Pacific Halibut Commission, and other knowledgeable sources in identifying valid permit owners who meet the historical reliance criteria. NPS would require those fishermen qualifying for the exemption from the commercial fishing prohibition in Glacier Bay proper to obtain a non-transferable (except for purposes of permit retirement) special use permit from the Superintendent of Glacier Bay NP within two years following the effective date of a final rule. The existing procedures governing permit applications for activities in Alaska national park areas would apply. See 36 CPR§ 13.31. Commercial fishing in Glacier Bay proper without an NPS special use permit would be prohibited during the 15-year exemption period. At the end of the 15-year exemption, all special use permits would expire and all commercial fishing within Glacier Bay proper would cease. NPS welcomes comment on the proposed "grandfathering" criteria and process. (d). Exempted fisheries and gear types. Commercial fisheries eligible for the 15-year exemption in Glacier Bay proper would include trolling for salmon, long lining for halibut, and pot or ring net fishing for Dungeness and tanner crab. These are the fisheries that have consistently occurred within Glacier Bay for decades. All other fisheries and gear types would . be prohibited. Since 1985, NPS regulations have expressly prohibited commercial fishing for shrimp, herring and whale prey species, and trawling in Glacier Bay. The exempted fisheries would be governed under a cooperative fisheries management plan developed by NPS and the State consistent with federal and non-conflicting State regulations. The plan would be implemented through the Alaska Board of Fisheries, with the Secretary retaining the authority to protect park purposes and values under applicable law. (e). Safe Harborage. Nothing in this proposed rulemaking, or existing NPS regulations, would affect the ability of fishermen or other vessel operators to seek safe harbor within Glacier Bay under hazardous weather or sea conditions, when experiencing mechanical problems, or in other exigent circumstances. (f). Opportunity for "Buy Out." Commercial fishermen who qualify for and obtain a special use permit for the 15-year exemption as outlined above might be willing to sell the permit to the NPS or a third party for the sole purpose of retiring the permit. Subject to the availability of funds for this purpose, NPS might be willing to buy these permits, especially early in the 15-year exemption period, to enable and encourage the fishermen who wish to pursue alternatives to fishing in Glacier Bay proper. Any such "buy out" would require, at a minimum, a willing seller, a willing buyer, and available funds. Wilderness 11 This rulemaking reflects the Wilderness Act's statutory prohibition' on commercial fishing within _ designated wilderness. Within Glacier Bay National Park, the wilderness waters ofDuridas Bay, Rendu Inlet, Adains Inlet, the Hugh Miller Inlet complex, and the Beardslee Islands would contmue to be closed to commercial fishing, a commercial-enterprise incompatible with the· requirements of the Wilderness Act of 1964. Outer Waters · Exemption from current NPS prohibition on commercial fishing. This proposed rule would provide an exemption from the existing regulatory prohibition on commercial. fishing in the nonwilderness waters of the Park located outside Glacier Bay proper. Authorized fisheries would be allowed to continue under a cooperative fisheries management plan developed by the NPS and State of Alaska and implemented through the Alaska Board of Fisheries. The NPS recognizes the fisheries management expertise of the Board of Fisheries; and would lik~ to incorporate the use of this established regulatory and public involvement process familiar to the fishing community. NPS management objectives for the outer waters would be incorporated within this plan and include limits on the significant expansion ·of ongoing fisheries; protection of resident and sensitive fish species, including salmonid populations that spawn within the park; protection of other park wildlife and resources; and, minimization of conflicts with visitor use. A cooperative fisheries management plan would be regularly reviewed and evaluated with. respect to achievement of State and NPS_management objectives, and modified as necessary. Where NPS management objectives are-not met under cooperative State/federal managem~nt, the Secretary .could m:ove to close or modify ongoing fisheries to protect park purposes and values following appropriate procedures, including notice and hearing in the local area. Continued cooperative management would be reevaluated at the end ·of 15 years. The proposed fifteen year exemption from tl;le existing prohibition on commercial fishing in national park waters, with a re-examinaton of scientific and other information at that time, differs in si~ficant respects from the seven-year exemption proposed by NPS in 1991, which would have presumptively closed park waters to commercial fishing at the end of the seven year exemption. this proposed nile responds to concerns from the fishing community and State regarding the long-fern1 viability and importance of fisheries in the outer waters, particularly the troll fishery for salmon, which --according to comments received on the 1991 proposed rule --is of special importance and concern. NPS invites comment on the duration and terms of the proposed exemption for the "outer waters." - Gear types. Fisheries authorized under this proposed rule would be delineated in the cooperative management plan, and would be limited to those species and gear types that have historically occurred and have provided commercially viable fisheries. New fisheries and gear types, or the expansion into the park of relatively new fisheries deveiopirtg in Southeast Alaska ~, sea · urchins, sea cucumbers) and other species not previously fished in the park, would be precluded. Gear types would be limited to those that have been historically prevalent in the outer waters: troll, long line, pots and ring nets, and purse seine (Excursion Inlet only). Lituya and Dundas Bays.. Two bays in outer waters merit special consideration: Lituya Bay on 12 the Outer Coast and Dundas Bay in Icy Strait. These bays are arguably unique among outside waters. Both are geologically, culturally, and historically rich. Both provide sheltered habitat for marine life as well as outstanding opportunities for recreation. NPS specifically solicits public comment on whether these two special bays should be afforded additional protection through limitations on commercial fishing, including the possibility of a phase-out similar in approach to that proposed for Glacier Bay proper. Safe harborage. This proposed rule would not affect the use of protected bays along the park's outer waters for· safe harborage. Safe harborage has always been allowed and will be continued for any vessel. Research The continued closure of certain areas of Glacier Bay National Park to commercial fishing as contemplated under this proposed rule presents unique and extremely valuable opportunities for science. The opportunity to pursue scientific endeavors about natural resources and processes was a primary reason Glacier Bay was established as a national monument in 1925. Indeed, Glacier Bay National Park has a distinguished scientific history. NPS intends to work closely with the State, the scientific community, other fisheries, protected area managers, and the public to evaluate opportunities for carefully considered and designed cooperative studies presented by the proposal under consideration. A cooperative State and NPS fisheries management plan would, in part, identify cooperative research needs and opportunities that can benefit conservation of resources in the Park, and contribute toward models for sustainable fisheries and economies throughout Alaska and elsewhere. Dungeness crab study. The ongoing MADS (Multi-Agency Dungeness Studies) is a cooperative project initiated in 1992 by the National Marine Fisheries Service, University of Alaska, Fairbanks, and the Biological Resources Division (BRD) of the U.S. Geological Service (USGS) (formerly National Biological Service). Phase I ofthe MADS study gathered data characterizing the size and structure of the Dungeness crab population at selected sites in Glacier Bay. Phase II of the study (five to seven years) requires both closed and open fishing areas for Dungeness crab within the Beardslee Islands study area, including Bartlett Cove; population parameters in the fished sites will be compared to sites closed to fishing. The information established by this study will provide an invaluable baseline for monitoring these areas with different fishing histories over time. NPS had previously determined that the aspect of this scientific research that requires limited harvesting within the Beardslee Island wilderness comports with the restrictive criteria applicable to approving scientific research in a wilderness area, including the following: the project is of minimal impact and duration, its information is likely to be of great value for resource protection and protected area management purposes, and alternative locations are not available. Controlled experiments testing the impact of human exploitation on the population structure of harvested marine species are rare. Typically, areas that have been fished in the past are not available to study as "unfished" areas until the fishery has "crashed," i.e., been depleted. 13 Comparison of the crab population structure in fished and non-fished areas in Glacier Bay NP during this transitional period will markedly enhance the information base available to NPS managers in evaluating the relationship between fishing activities and the protection of park/wilderness resources, and will also be valuable in quantifying the recovery of wilderness waters to an unexploited state. Furthermore, such information should prove valuable to all agencies involved in fisheries management in Alaska and elsewhere. A small number of fishermen with an extensive knowledge of the Beardslee Islands Dungeness fishery may be authorized to participate in the study under a "research project" special use permit from the NPS. For the stability of the study and principles of equitable selection, participation in the study would be limited to those fishermen who meet the criteria for fishing in Glacier Bay during the fifteen year exemptive period, and have a personal history ofDungeness crab fishing within the Beardslee Islands. Additional criteria may be considered if the number of eligible participants exceeds study needs. Fishing activities during the study would continue consistent with applicable State regulations, including the summer Dungeness fishery, currently June 15-August 15. The participation in this research project does not preclude the fishermen from qualifYing separately to fish in nonwildemess waters outside the study area. The proposed rule would close Bartlett Cove (defined as that area of the cove enclosed by a line drawn between Halibut and Lester Points) and a portion of the Beardslee Island waters to all fishing for Dungeness crab (including sport and personal use) for the purposes and duration of study through December 31, 2002. Maps and charts would be available from the Superintendent delineating the closure area. The closure would not affect fishing opportunities for other species, as otherwise allowed under federal and non-conflicting State regulations. Halibut study proposal. The NPS is specifically seeking public comment at this time on a halibut study that would measure the effects of commercial harvest on halibut in Glacier Bay proper. Since 1992, research on Pacific halibut in Glacier Bay has concentrated on the many unanswered questions about the basic life history and ecological relationships of the species. New knowledge about the behavior of halibut, including their use of small home ranges, site fidelity, and the retention of reproductive individuals in Glacier Bay throughout the year, combined with the species' slow maturation and highly age-dependent reproduction, indicates that halibut have a high potential to experience local depletion through fishing. Thus, this species is a good candidate for additional protection and for examining the effects of commercial fishing by comparing open and closed areas. Through experimental closures, an understanding can be gained of the effects of fishing on halibut population size and structure, as well as any cascade effects on prey species. The halibut study would require the closure of Glacier Bay above Strawberry Island within the next few years, and would compare catch per unit effort and size structure of the halibut in the closed area to a similar study site in Icy Strait where commercial halibut fishing would continue. Although this experimental closure, as proposed for review and comment, would substantially reduce the area available within Glacier Bay for commercial halibut fishing during the 15-year exemption period, it would not be expected to have an equivalent impact on harvest. Available 14 harvest data indicates a majority(> 50%) of halibut harVested in Glacier Bay are taken from the area of Glacier Bay which would remain open to fishing under this study proposal. Available biological data correlates with the harvest data, indicating highest numbers ofhaiibut in the lower reaches of Glacier Bay and very few in t;he upper reaches. Under this study proposal, fishermen would continue to have access to the most productive area in Glacier Bay to harvest. their IFQ shares of halibut. The halibut study outlined above would allow fisheries managers an unparalleled opportunity to measure the effects of commercial fishing on halibut. Thisjnformation is extremely important to the management and protection ofhalib~t fisheries in and out of the Park, and serves to illustrate the potential benefits Glacier Bay National Park holds for science and the long-term conservation of fisheries resources. _ Hoonah Tlingit Cultural Fishery NPS and_ the· Hoonah Indian Association (HIA), a federally recognized tribal entity, signed a Memorandum ofUnderstanding in 1996, committing to work cooperatively to protect the cultural heritage of the Hoonah Tlingit, explore ways to recognize and honor the Tlingit's cultural connection to Glacier Bay, and allow for-and preserve-cultural activities compatible_ with park objectives. Toward that end, NPS will work with HIA to develop a cultur~l fishery -program designed to preserve and pass on traditional native fishing methods. The State of Alaska's educational fishery program may serve as a_vehicle for developing such a program. Pending Environmental Assessment: Alternatives under Consideration A forthcoming Environmental Assessment on commercial fishing within Glacier Bay National Park will more fully describe and analyze the potential effects of a range of alternative actions under consideration by the NPS. Brief descriptions of the draft alternatives under consideration follow and are offered to solicit preliminary public review and comment. A public review and · comment period will be provided for the Environmental Assessment and the proposed rule together. NPS will hold public meetings on the proposal and the alternatives ·a.nd publish a _schedule ~ftinies, dates and lo~ations in the Federal Register. NPS has not made any final. decisions regarding any proposais described herein. No fimil decisions will be reached until all applicable legal requirements have been met, including environmental review re_quire111ents. Alternative A (No Action)· Thi.s alternative would leave in place the current regulations prohibiting commercial fishing activities within Glacier Bay National Park. Enforcement of the regul~tion would result in the cessation of all commercial fisheries in Park waters. NPS would explore possible mitigation mechairisms for affected fishermen. In addition, the NPS, in cooperation with the State of Alaska, the Biological Research Division, and other research entities, would explore opportunities to facilitate fishery research, This alternative would not require regulatory or legislative action. 15 Alternative B This alternative would provide short-term, year round commercial fishing opportunities through a five-year exemption from the existing NPS regulatory prohibition on commercial fishing in Glacier Bay proper and a longer, fifteen year exemption in waters of the Park located outside Glacier Bay. The statutory prohibition on commercial fishing in designated wilderness areas would be reflected in the regulations. Fishing may be continued in specific locations in the Beardslee Islands as part of an ongoing scientific study of Dungeness crabs for a period of five years. The five-year exemption in Glacier Bay would be available only to individual fishing vessel/permit owners who can demonstrate a history of consistent participation in each specific Glacier Bay fishery. The primary criteria would be documented participation in a given fishery for at least six of the last ten years (1987 -1996), as verified by a minimum number of reported Glacier Bay fish landings and ownership of the appropriate fisheries permit(s), effective 1996. Fishermen not meeting criteria demonstrating consistent participation in fisheries, who have used the Bay only intermittently or in recent years, would not be allowed to fish in Glacier Bay. Fisheries located outside Glacier Bay proper would be allowed to continue under a cooperative fisheries management plan developed with the State of Alaska and implemented through the Alaska Board of Fisheries for 15 years. During the 15-year period studies and research regarding the relationship of commercial fishing uses to park resources and values would be conducted. If data from such studies indicate that certain levels and/or types of commercial fishing can compatibly coexist with conserving park resources in an unimpaired state, then the NPS may allow closely monitored commercial fisheries at prescribed levels after the 15-year period. Alternative C (Proposed Action) Alternative C would allow continued fishing in the Park's marine waters outside Glacier Bay proper, subject to achievement ofNPS management objectives as would be defined in a cooperative management plan developed with the State. The regulations will reflect the statutory prohibition against commercial fishing in designated wilderness waters. Fishermen with a consistent history of participation would continue to fish within Glacier Bay for halibut, Dungeness and tanner crab, and salmon during a 15-year exemption period. Glacier Bay would close to commercial fishing during the visitor use season, May 1-September 30, to minimize conflicts with visitor use and Vessel Management Plan objectives. A research study on Dungeness crab would occur in the Beardslee Islands requiring closure of part of the Beardslee Islands, and Bartlett Cove, to all Dungeness crab fishing for a five-year study period; an additional research opportunity for halibut is suggested for public comment. Alternative D (Continued Fishing) Alternative D would allow continued fisheries harvest at the highest possible level while protecting park resources. This alternative, to the extent possible, would seek to allow local individuals to continue a traditional fishing lifestyle, promote and sustain fishing culture and maintain the economic viability of small business interests in Glacier Bay National Park and 16 adjacent communities. With the exception of some fisheries, most would be authorized to continue throughout Glacier Bay National Park. This alternative would prohibit fisheries for those species vulnerable to over harvest (i.e., all king crab species, all rockfish species and ling cod), fisheries causing unacceptable habitat degradation (i.e., weathervane scallop dredge fishery), and trawling. The statutory prohibition on commercial fishing in Wilderness would be reflected in the regulations. This alternative would require a fisheries research and management program to obtain new information and assemble existing fisheries data for periodic evaluation regarding continued viability of fisheries. Periodic review would be accomplished by the NPS in consultation with appropriate fisheries management agencies. Alternative D would also require regulatory action to authorize commercial fisheries in park waters. Section-by-Section Analysis Paragraph (a)(l) would provide an exception, for the non-wilderness marine waters of Glacier Bay National Park, :from the general NPS prohibition on commercial fishing; subparagraph (i) clarifies that wilderness waters remain statutorily closed. Subparagraph (ii)(A) would require a NPS issued permit to conduct commercial fishing activities in Glacier Bay proper; (ii)(B) would establish eligibility and application requirements for commercial fishing in the Bay; (ii)(C) would establish an October 1 through April30, non- renewable 15-year exemption period for commercial fishing in the Bay; commercial species and methods of take that would be allowed within the Bay are proposed in (ii)(D). Subparagraph (iii)(A)-(B) would authorize the existing, prevalent commercial fishing operations in the other marine waters of the Park for a period of 15 years under a cooperative federal/State management plan; (iii)(C) would require reexamination of continued commercial fishing under the cooperative agreement, based on the best scientific information and in consideration of park values and purposes, in the outer waters of the park at the end of the 15-year period. Paragraph (a)(2) prohibits fishing for Dungeness crab within Beardslee Island study area, including Bartlett Cove, until December 31, 2002, except as authorized by a research permit. This will allow NPS/USGS BRD to complete the Multi-Agency Dungeness Studies initiated in 1992 by National Marine Fisheries Service and the University of Alaska, Fairbanks. The closure would not effect fishing opportunities for other species. Paragraphs (b )(5)-(6) that prohibit both commercial harvest of species identified as whale prey and methods that remove these species are proposed to be withdrawn and reserved; paragraph (a)(1)(ii)(D) would replace them. Drafting Information The ·primary authors of this rule are Molly N. Ross, Office of the Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior, Washington, D.C., Randy L. King, Chief Ranger, Glacier Bay National Park and Preserve, and Russel J. Wilson, Alaska Desk Officer, National Park Service, Washington, D.C .. Other contributing National Park Service employees include: John W. Hiscock, Marvin Jensen, Mary Beth Moss, and Chad Soiseth. 17 Public Participation It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule to the address noted at the beginning of this rulemaking. The NPS will review all comments and consider making changes to the rule based upon a thorough analysis of the comments. NPS will schedule and provide specific notice of public meetings and discussion sessions in various locations during the comment period. Paperwork Reduction Act The collection of information contained in section 13.65 (a)(1)(ii)(B) this rule is for the purpose of issuing a permit to allow a continuation of commercial fishing in Glacier Bay National Park based upon historical justification. The information collected will be used to determine who qualifies for the issuance of a permit. The obligation to respond is required to obtain a permit. Specifically, the NPS needs the following infonnation to issue a permit: (1) Applicants name, address and date ofbirth. (2) Vessel name, registration, ADF&G license numbers and description. (3) Alaska Limited Entry/Interim Use Permit Card Number. ( 4) Halibut Commission license number (5) Fishery description/gear type (6) Documented fish landings (1987-1996). NPS has submitted the necessary documentation to the Office of Management and Budget under 44 U.S.C. § 3501, et seq., requesting approval for the collection of this information for all areas covered by this rule. A document will be published in the Federal Register establishing an effective date for §13.65(a)(1)(ii)(B) when that approval is received from OMB. The public reporting burden for the collection of this information is estimated to average less than two hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden of these information collection requests, to Information Collection Officer, National Park Service, 800 North Capitol Street, Washington, D.C. 20001; and the Office ofManagement and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for Department of the Interior (1024-0125), Washington, D.C. 20503. Compliance With Other Laws This rule was reviewed by the Office of Management and Budget under Executive Order 12866. The Department of the Interior determined that the proposed rule is not major. The Department of the Interior determined that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act ( 5 U.S.C. § 601 et seq). The revision mainly clarifies previously existing statutory and regulatory 18 prohibitions. The expected redistribution of commercial fishing efforts to areas outside of the park is not expected to sigrlificantly effect a substantial number of small businessmen. The NPS has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. § 1502 et seq., that this proposed rule will not impose a cost of $100 million or inore in any given year on local, State, or tribal governments or private entities. Pursuant to the National Environmental Policy Act, 42 U.S.C. § 4332, NPS is preparing an environmental assessment (EA) on the proposed action and alternatives that are outlined in this nile. The Service will complete the EA and publish a notice of availability in the Federal Register during the comment period provided for in this rule so that interested parties can comment contemporaneously on both documents. List of Subjects in 36 CFR Part 13 Alaska, National parks, Reporting and recordkeeping .requirements. In consideration of the foregoing, NPS proposes to amend 36 CPR part 13 as follows: PART 13-NATIONAL PARK SYSTEM UNITS IN ALASKA 1. The authority citation for Part 13 continues to read as follows: Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.;§ 13.65 also issued under 16 U.S.C. 1a- 2(h), 20, 1361, 1531,3197. 2. Section 13~65 is amended by adding paragraph (a) and removing and reserving paragraphs (b)(4) and (b)(5) to read as follows: § 13.65 Glacier Bay National Park and Preserve (a) Fishing. (1) Commercial fishing. During the time frames that follow; specified commercial fisheries in listed salt waters of Glacier Bay National Park are exempt from the commercial fishing prohibition contained in this chapter: (i) Commercial fishing and associated buying and processing operations within designated wilderness areas are prohibited. Maps and charts showing designated wilderness areas are available from the Superintendent. (ii) Glacier Bay. (A) A non-transferable special use permit issued by the Superintendent is required to conduct commercial fishing within Glacier Bay during the exemptive period. Commercial fishing without a special use permit is prohibited. (B) Eligibility requirements to obtain a special use permit for each fishery include a current, valid State and/or federal commercial fishing permit(s) for Glacier Bay waters; participation in the fishery within Glacier Bay a minimum of six years during the period 1987-1996, as verified by affidavit and documentation of at least one landing in each year from Glacier Bay for halibut, salmon, or tanner crab; for Dungeness crab, ten landings are required in each of the six qualifying years. Application for a special use permit must be made within two years from i9 [effective date ofthe final regulation]. (C) October 1 through April30, commercial fishing and associated buying and processing operations are authorized in all non-wilderness waters of Glacier Bay north of a line from Point Carolus to Point Gustavus for a period of 15 years from the effective date of this regulation. At the end of the exemptive periods, all commercial fishing and associated buying and processing operations shall end, and the prohibition contained in this chapter shall apply. (D) Commercial fishing for other than the following species, or by other than the following methods is prohibited: trolling for salmon, long lining for halibut, pot or ring net fishing for Dungeness and tanner crab. (iii) Outer waters. (A) Commercial fishing and associated buying and processing operations are authorized in all marine waters within park boundaries not listed in paragraph (a)( 1 )(ii)(B) of this section, pursuant to a cooperative federal and State of Alaska management plan for a period of 15 years from [effective date of the final] regulation. (B) Commercial fishing by other than the following methods is prohibited: trolling, long lining, pot and ring net fishing for Dungeness and tanner crab, and purse seining in Excursion Inlet. (C) At the end of the 15-year exemptive period, the Secretary will reexamine and reevaluate continued commercial fishing in the outer waters, based on the best available scientific information and in consideration of park values and purposes. (2) Fishing for Dungeness crab within the Beardslee Island study area, including the area enclosed within Bartlett Cove by an imaginary line drawn between Lester and Halibut Points, is prohibited until December 31, 2002, except as authorized by a NPS research permit. Maps and charts showing the Beardslee Island study area are available from the Superintendent. (b)** * (5) [Reserved] ( 6) [Reserved] * * * * * ___ George T. Frampton, Jr. Date Assistant Secretary for Fish and Wildlife and Parks 20 }.:: Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules 18547 d. Load Data for Engineering Studies Rating: __ e. Power Requirements Data Rating : __ Part IV-Operation and Maintenance Budgets For Previous 2 Years: Normal Operation-Actual S __ No rmal Maintenance_:_ ctual S Total-Actual S__ ,.....;;;;:::::::~--- For Present Year: No rmal Operation BudgetS __ Staff Hours Normal Maintenance BudgetS__ ~ Staff Hours ~ - Total BudgetS_ @ ~ Staff Hours l C:::C For Future 3 Years : ~ Normal Operation ~ BudgetS __ ~ Staff Hours Normal Maintenance BudgetS __ Staff Hours Additional (Deferred) Maintenance BudgetS __ Staff Hours Total BudgetS __ Staff Hours 14 .Budgeting Adequacy of Budgets For Needed Work Rating: __ 15. Date Discussed with Board of Directors Remarks : Explanatory Notes Item No . Comments Rated by __ Title Date Reviewed by __ Ma nager __ Date Reviewed by __ RUS GFR Date Dated : April 10 , 1997 . jill Long Thompson, Under Secretary, Rural Development. [FR Doc . 97 -9849 Filed 4-15-97; 8:45am] BILLING CODE 3410-15-1' DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 RIN 1024-AB99 Glacier Bay National Park, Alaska; Commercial Fishing Regulations AGENCY: National Park Service , Interior. ACTION: Proposed rule; withdrawal of earlier proposed rule . SUMMARY: The National Park Service (NPS) proposes this rule to provide the legal basis for reinitiating public discussion in order to arrive at a prompt final resolution of the longstanding controversy concerning commercial fishing activities in Glacier Bay National Park (NP) by the end of 1997. In addition to seeking comments, NPS expects during the comment period to continue discussions on the record with interested parties including the State of Alaska. The proposed rule, intended t o provide a framework for enhanced review and comment by all interested parties, would implement fair measures to ensure protection of the values and purposes of Glacier Bay NP, including the preservation, enjoyment, and scientific value of the park's unique marine ecosystem. In general, the proposed rule would prohibit all commercial fishing in Glacier Bay proper but provide certain limited exemptions over a 15 year phase-out period, a nd authorize established commercial fishing in the park's marine waters outside Glacier Bay proper subject to reexamination at the e nd of 15 years. T o authorize the specific commercial fishing activities, the proposed rule would provide specific exe mptions for Glacier Bay NP from the nationwide prohibition on such activities in units of the National Park S ystem. For the phase-out in Glacier Bay proper, the proposed rule would exempt qualifying commercial fishermen who can demonstrate a reasonable history of participation in a specific fishery to continue fis h ing for a limited period of ti me on a seasonal basis . Fo r the marine waters outside Glacier Bay prope r , the proposed rule would generally exempt existi ng commercial fishing activities under a Federal-State cooperative management program c onsistent with protection of park resource values . With respect to designated wilderness waters in Glacier Bay NP, since t he Wilderness Act prohibits this kind of commercial enter prise in designated wilderness, commercial fishing activities must ce ase in these areas. However, certain c rab fishermen essential to a n existing multi-age ncy research project in the Beardslee Islands area may be authorized to take crab in t h e locations specified by the research project for the remaining five to seven years of the project pursuant to a "research project " special use permit. NPS has previously de t ermined that this research project is con s istent with. and is likely to produce significant benefits for, wilderness resource management. The proposed rule would not address legislatively authorized commercial fishing and related activities in the Dry Bay area of Glacier Bay National Preserve . This proposed rule supersedes and withdraws a previously proposed rulemaking on this subject published on August 5, 1991 (56 FR 37262). DATES: Written comments postmarked on or before October 15, 1997, will be accepted. For information on public meetings and discussion sessions, see Public Participation at the end of SUPPLEMENTARY INFORMATION: ADDRESSES: Comments should be dire cted to James M. Brady , Superintendent, Glacier Bay National Park and Preserve, P .O. Box 140, Gustavus, Alaska 99826 . FOR FURTHER INFORMATION CONTACT: James M. Brady, Superintendent, National Park Serv ice, Glacier Bay National Park and Preserve, P.O . Box 140, Gustavus , Alaska, 99827 , telephone: (907) 697-2230. SUPPLEMENTARY INFORMATION: Background Establishment of Glacier Bay National Park and Preserve Glacier Bay National Monument was established by presidential proclamation dated February 26 , 1925. 43 Stat. 1988. The monument was established to protect a number of tidewater and other glaciers, and a variety of post glacial forest and other vegetative covering, and also to provide opportunities for scientific study of glacial activity and post glacial biological succession. The early monument included marine waters within Glacier Bay north of a line running approximately from Geikie Inlet on the west side of the bay to the northern extent of the Beardslee Islands on the east side of the bay . The monument was expanded by a second presidential proclamation on April18, 1939. 53 Stat. 2534. The expanded monument included additional lands and marine waters consisting of all of Glacier Bay; portions of Cross Sound, North lnian Pass , North Passage, Icy Passage , and Excursion Inlet: and Pacific coastal waters to a distance of three miles seaward between Cape Spencer to the so u th and Sea Otter Creek. north of Cape Fairweather. Glacier Bay National Monument was redesignated a s Glacie r Bay National Park and Preserve and e nlarged in 1980 by the A laska National Interest Lands Conservation Act (ANILCA). 16 U.S.C. .:: .. Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules 18549 Monument to Glacier Bay National Park and Preserve, enlarged the area, and designated wilderness that included marine waters within the park. 16 U.S.C. 410hh-1, 1132 note. ANILCA specifically authorized certain park areas where commercial fishing and related activities could continue, including the Dry Bay area of Glacier Bay National Preserve but not any area of Glacier Bay National Park. Id. section 410hh-4. The 1983 revision ofthe NPS general regulations, still applicable, included a prohibition on commercial fishing throughout marine and fresh waters within park areas systemwide, unless specifically authorized by law. 48 FR 30252, 30283; 36 CFR 2:3(d){4). The 1988 version ofNPS "Management Policies," still current, reiterates this approach. However, certain NPS documents during the 1980's suggested that some commercial fishing would continue in Glacier Bay. For example, the 1980 and 1985 Glacier Bay whale protection regulations implicitly acknowledged commercial fishing operations in Glacier Bay proper. 36 CFR 13.65{b}. Also, the park's 1984 General Management Plan stated the following: Traditional commercial fishing practices will continue to be allowed throughout most park and preserve waters. However. no new (nontraditional) fishery will be allowed by the National Park Service. Halibut and salmon fishing and crabbing will not be prohibited by the Park Service. Commercial fishing will be prohibited in wilderness waters in accordance with ANILCA and the Wilderness Act. The General Management Plan defined "traditional commercial fishing practices" to include "trolling, long lining and pot fishing for crab, and seining (Excursion Inlet only) in park waters * * *." General Management Plan at 51. Finally, the 1988 Final Environmental Impact Statement concerning wilderness recommendations for Glacier Bay National Park referred to the continuation of commercial fishing in nonwilderness park waters. Events Leading to This Proposed Rulemaking NPS regulations have prohibited commercial fishing in Glacier Bay National Park (and the predecessor National Monument) since 1966, and the Wilderness Act has prohibited commercial fishing in the wilderness waters within Glacier Bay NP since 1980, yet commercial fishing activities have continued in both wilderness and non-wilderness areas of the park. Since 1990, there have been attempts to resolve this situation through litigation, an earlier proposed rulemaking, and proposed legislation. In 1990, the Alaska Wildlife Alliance and American Wildlands filed a lawsuit challenging the NPS's failure to bar commercial fishing activities from Glacier Bay NP. Alaska Wildlife Alliance v. Jensen, No. A90-0345-CV (D. Ak.}. In 1994, the district court concluded that "there is no statutory ban on commercial fishing_ in Glacier Bay National Park provided, however, that commercial fishing is prohibited in that portion of Glacier Bay National Park designated as wilderness area." An appeal of the district court's ruling is currently pending before the U.S. Court of Appeals for the Ninth Circuit. Alaska Wildlife Alliance v. Brady, Nos. 95- 25151 and 95-35188 (9th Cir.). Close to the time that the plaintiffs in the above litigation embarked on a judicial approach to resolution of the commercial fishing issues, the State of Alaska's Citizens Advisory Commission on Federal Areas hosted a series of public meetings in local communities to discuss the issues. After participating in these meetings, the NPS decided to draft a regulatory approach to resolving the issues. NPS published its proposed rule on August 5, 1991 (56 FR 37262). In essence, the proposed rule would have (a) clarified the prohibition on commercial fishing in designated wilderness waters, and (b) exempted commercial fishing in other park waters from the nationwide regulatory prohibition for a "phase out" period of seven years. NPS held ten public meetings on the proposed rule, received over 300 comments, and prepared drafts of a final rule. At the State's request,- however, the Department of the Interior refrained from issuing a final rule in 1993, and instead agreed to discuss with State and Congressional staff the possibility of resolving the issues through a legislative approach. In 1992, Congress had considered but not enacted proposed legislation on commercial fishing in Glacier Bay NP. During the 1993-1994 discussions about legislative and regulatory possibilities, the participants enhanced their understanding of the facts, interests, options, and potential obstacles relevant to any final solution. Although the discussions did not lead to a legislative proposal, they have influenced the Department of the Interior's approach to this proposed rulemaking. Between Fall 1995 and Spring 1996, officials from Glacier Bay NP and the Alaska Department of Fish and Game co-hosted several meetings in southeast Alaska involving selected ---------------- "stakeholders" interested in trying to resolve the commercial fishing controversy. Meanwhile during 1995 and 1996, NPS revised its management of vessels at Glacier Bay National Park through issuance of a plan and regulations. See 61 FR 27008 (May 30, 1996}. Although the vessel management rule exempted commercial fishing vessels (engaged in fishing and properly licensed) from entry limits established for other motorized vessels, the rule's closure of certain designated park waters to motorized uses created the potential to affect certain commercial fishermen. See 36 CFR § 13.65{b)(3}{vii). In response to comments in that rulemaking, NPS noted its separate efforts to address the future of commercial fishing in Glacier Bay NP. 61 FRat 27013, 27015 (May 30, 1996). Proposed A ;tion on Commercial Fishing Circumstances are now ripe to go forward with this new proposed rulemaking effort, taking advantage of the momentum toward a solution described above. This action authorizes full public participation, and will serve to facilitate constructive discussion, and to craft a comprehensive resolution to the controversy before the 1998 summer visitor season at Glacier Bay NP. Toward these ends, NPS is today proposing a rule that is, indeed, a proposal which can serve to structure the anticipated public discussion. The district court's decision in Alaska Wildlife Alliance v. jensen, above, upholding the NPS's interpretation of the NPS Organic Act and the Wilderness Act, demonstrates that rule making action is necessary. A rulemaking action can deter;mine what commercial fishing activities are appropriate in Glacier Bay NP's waters consistent with the park's conservation and other objectives established by statute and proclamation. Indeed, the currently applicable regulatory prohibition on commercial fishing activities in all Glacier Bay NP waters necessitates a rule making to authorize any commercial fishing activities in the nonwilderness waters, even for purposes of "phasing out" the activities over a specified time. NPS has several objectives for this rulemaking. First, NPS seeks to ensure fulfillment of the "fundamental" statutory purpose of the park, i.e., preservation of park resources and values, which in Glacier Bay NP includes protecting the park's marine ecosystem. Second, NPS seeks to provide for the visitors' enjoyment of these resources and values and to minimize conflicts among visitors 18550 Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules pursuing different yet appropriate park experiences. Third, NPS seeks to provide unique opportunities for scientific study that will benefit the public and enhance resource management. Balancing these objectives, NPS also seeks to act fairly toward individual commercial fishermen with a history of participation in park fisheries, to recognize the important cultural ties that the Hoonah Tlingit people have with respect to Glacier Bay, and to develop an effective partnership with the State of Alaska through the cooperative management program for Glacier Bay NP fisheries. The proposed rule described below differs from the rule that NPS would have proposed even a few years ago. Several factors have influenced the shape of to day's proposed rule, including the passage of many years with the continuation of unauthorized commercial fishing prohibitions in Glacier Bay; potential socioeconomic harm from approaches that would mandate immediate implementation of prohibitions throughout park waters; related equitable considerations for certain fishermen with an historical pattern of use in park waters; the existence of an exciting research project already underway in Glacier Bay proper that can piggyback this rulemaking to expand scientific understanding of the fishery resources and natural processes to everyone's benefit. As participants in the 1995-1996 Alaska-based discussions may perceive, the proposed rule borrows in large measure from the consensus building process in which they were engaged, but provides notice and encourages comment from all interested parties in formulating the optimal solution for Glacier Bay NP, a widely cherished unit of the National Park System. Overview of Proposed Rule The proposed rule would prohibit all commercial fishing activities in Glacier Bay proper consistent with existing NPS regulation and policy. This prohibition would bar all such activities during the primary visitor use season beginning in 1998. NPS would offer a 15 year exemption from the prohibition outside the primary visitor use season, however, to·accommodate a phase out for fishermen who can demonstrate historical reliance on a specific Glacier Bay fishery. Qualifying criteria for this exemption would include verified participation in the fishery during six of the last ten years. Subject to the availability of funds for this purpose, NPS (or a third party) could offer to purchase and retire the 15 year exemption permits from fishermen willing to sell them. With respect to designated wilderness waters in Glacier Bay NP, commercial fishing activities must cease in these areas in compliance with the language and intent of the Wilderness Act as recently confirmed in Alaska Wildlife Alliance v. jensen, above. However, certain crab fishermen who have been part of the existing multi-agency research project in the Beardslee Islands area may be authorized to take crab in the locations specified by the research project for the remaining five to seven years of the project subject to a special use permit. The proposed rule would generally authorize commercial fishing to continue in the marine waters outside Glacier Bay proper (the "outer waters") by exempting such fishing from the· otherwise applicable National Park System-wide prohibition on commercial fishing. This exemption would be subject to re-examination to allow consideration of new scientific and other relevant information at the end of 15 years. The proposed rule would restrict commercial fishing activities in the outer waters to well established fisheries and gear types. Commercial fishing activities in the outer waters, as well as those in Glacier Bay proper during the phase out period, would be governed by a cooperative fisheries management plan developed with the State of Alaska and implemented through the Alaska Board of Fisheries subject to the Secretary of the Interior's authority to protect park resource values. The Secretary, through NPS, would cooperatively ensure adherence to the plan under the provisions of 36 CFR 2;3(a) and 13.21(b). Although the proposed rule as drafted does not contain a provision requiring additional limitations on, or a phase out of, commercial fishing in certain bays in the outer waters, NPS seeks comments on the inclusion of such protections in special cases, particularly for Lituya Bay on the Outer Coast and Dundas Bay in Icy Strait. These bays are rich in biological resources and scenic beauty, and offer exceptional opportunities for park visitors. Glacier Bay This proposed rule would prohibit commercial fishing in the nonwilderness waters of Glacier Bay proper, but would provide a seasonal exemption from that prohibition for 15 years for fishermen who demonstrate a reasonable history of participation in a specific Glacier Bay fishery. Commercial Fishing Prohibition The proposed rule would end commercial fishing in Glacier Bay proper within 15 years. This action would bring Glacier Bay into conformance not only with the general policy and rule applicable to units of the National Park System, but also with the particular objectives underlying the establishment of Glacier Bay National Park and its predecessor Glacier Bay National Monument. The value of Glacier Bay as a protected marine ecosystem, rich in biological resources and special in its dynamic interactions with glacial and terrestrial systems, has never been higher. Protected marine ecosystems are scarce commodities. Examples of overfishing and overuse of marine waters have become increasingly common. The commercial fishing ban in Glacier Bay will enh mce the protection of the park's ecologi• al resources, while also reducing a vari£ .y of use conflicts with visitors seekin~ the kinds of recreational and inspirational experiences intended to be provided by national parks. Limited Exemption From Prohibition The proposed rule would offer a limited exemption from the prohibition on commercial fishing in Glacier Bay proper for purposes of equitably phasing out the activities of fishermen who have developed an historical reliance on a specific affected fishery. The key terms of this limited exemption include the following: (a) Fifteen Years. The exemption, and all commercial fishing in Glacier Bay proper, would terminate in 15 years. This period of time should allow· fishermen reasonable opportunity, where necessary, to adjust their fishing activities to areas outside Glacier Bay proper, amortize their current investment in fishing vessels and gear, or in many cases, continue fishing until retirement. In the 1991 proposed rule, NPS offered a seven year exemption to phase out commercial fishing in Glacier Bay NP, and the Department of the Interior recommended a "three to five year phase out of Glacier Bay proper during the 1993-1994 discussions. The 15-year phase out proposed in this rule responds to comments made by fishermen concerning the perceived inadequacy of the seven year phase out proposed in the 1991 NPS proposed rule. It also reflects a position that was emerging in the 1995-1996 Alaska- based discussions. NPS welcomes comment on the appropriate length of the exemption period. (b). Outside the Primary Visitor Use Season. The exemption would be Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules 18551 available throughout the 15 years only from October 1 to Apri130, i.e., outside the primary visitor use season in Glacier Bay proper. Accordingly, beginning on May 1, 1998, commercial fishing would be prohibited in Glacier Bay NP during the primary visitor season, May 1 through September 30, to achieve substantial reduction in resource· impacts and visitor use conflicts. NPS believes that the fishermen who would likely be eligible to qualify for the exemption in Glacier Bay proper (see criteria below) would generally be able to adjust their fishing to the October through April time frame during the 15- year phase out. Glacier Bay National Park is truly a world-class park, with spectacular resources and a rich cultural history. The park is one of Alaska's premier visitor attractions, contributing significantly to the tourism economy of local communities and Southeast Alaska. Park visitation has doubled within the past ten years to over 300,000 visitors in 1996, a reflection of increasing visitor interest in the park and Alaska Visitor use, formerly concentrated in a few short summer months, now encompasses an expanding visitor use season stretching from April through September. Commercial fishing vessels are currently the only motorized vessels that are not expressly subject to entry limits and certain other restrictions in Glacier Bay proper. Since NPS vessel regulations were published for Glacier Bay in 1985 (50 FR 19886). the number of motorized vessels allowed in Glacier Bay during the summer months, including cruise ships, tour boats, charter vessels, and private boats, has been closely regulated. The park's recently completed Vessel Management Plan (1996) further refined the management of vessel traffic within Glacier Bay, provided increased opportunities for visitor access, enhanced protection of park resources (e.g., marine mammals and sea birds}, and facilitated a range of high quality recreational opportunities for park visitors. All motorized vessels, with the sole exception of commercial fishing vessels, have been limited to daily and seasonal entry caps. Park regulations have also exempted commercial fishing vessels from certain vessel maneuvering requirements designed to minimize disturbance of endangered humpback whales within Glacier Bay. In these respects, unauthorized and unregulated commercial fishing vessel activity within Glacier Bay during the summer visitor use season has been inconsistent with NPS vessel regulations designed to protect park resources, provide for equitable public use of the park, and enhance the quality of the visitor experience at Glacier Bay. This visitor use season prohibition on commercial fishing activities would minimize conflicts with other visitor activities, including competition for- and, in some cases, gear conflicts within-limited anchorages. Commercial fishing in Glacier Bay proper has disturbed visitors seeking opportunities to experience nature, quiet, solitude, or an escape from the indicia of modern civilization. This visitor use season prohibition would also reduce the effect of unlimited numbers of commercial fishing vessels on sensitive park resources, and would improve the background conditions for critical studies required by the Vessel Management Plan. The visitor use season closure of Glacier Bay to commercial fishing would ali 1ost exclusively affect Dungene~; crab Oune 15-August 15) and halib.Jt fisheries (March 15- November 15) under current State and International Pacific Halibut Commission (IPHC) regulations. However, federal and State fisheries regulations do permit fishing opportunities for halibut and Dungeness crab during the October 1-April30 exemption period. Halibut, for example, would still be available for harvest in Glacier Bay for three months under this proposed rule (March 15-April 30, and October 1-November 15); Dungeness crab for two months (October 1- November 30). Halibut fishermen, in particular, would have ample opportunity to fish outside Glacier Bay during the proposed May !-September 30 prohibition period. Under the IPHC management system, fishermen have eight months to fish within a large management area (of which Glacier Bay is but a portion) to catch their allotted Individual Fishing Quota (IFQ), i.e., pounds of halibut that may be harvested each year. Very little trolling activity for salmon occurs in Glacier Bay during the summer months under current fishing practices and State regulations, and the proposed visitor use season prohibition would be expected to have minimal impact on the activities of troll fishermen. Although the proposed rule would bracket the visitor use season from May 1 through September 30, NPS solicits comments on the use of a different visitor use season during which all commercial fishing in Glacier Bay proper would be prohibited beginning in 1998. In previous comments and discussions, fishermen have suggested a shorter season Oune 1 though August 31). and others have suggested a "middle" position ofMay 15 through September 15. tc) Grandfathered (i.e., Qualifying) Fishermen. The fifteen year exemption would be available to individual owners of valid fishing permits who can demonstrate a history of consistent participation in the specific Glacier Bay fishery for which an exemption is sought. The primary criteria would be documented participation in a given fishery in Glacier Bay proper for at least six of the last ten years (1987-1996}, as supported by an affidavit, verified by a minimum number of reported landings from within Glacier Bay each of the six years, and perhaps corroborated by other supporting information. The minimum number of landings required would vary by fishery. For halibut, salmon, and tanner crab, the minimum number of landings in each qualifying year would be one. Ten landings of Dungeness crab would be required in each qualifying year. With these criteria, NPS would hope to identify those fishermen with a consistent (not intermittent or long past} reliance on a Glacier Bay fishery. NPS would also seek the assistance of the State of Alaska, the International Pacific Halibut Commission, and other knowledgeable sources in identifying valid permit owners who meet the historical reliance criteria. NPS would require those fishermen qualifying for the exemption from the commercial fishing prohibition in Glacier Bay proper to obtain a non- transferable (except for purposes of permit retirement) special use permit from the Superintendent of Glacier Bay NP within two years following the effective date of a final rule. The existing procedures governing permit applications for activities in Alaska national park areas would apply. See 36 CFR § 13.31. Commercial fishing in Glacier Bay proper without an NPS special use permit would be prohibited during the 15-year exemption period. At the end of the 15-year exemption, all special use permits would expire and all commercial fishing within Glacier Bay proper would cease. NPS welcomes comment on the proposed "grandfathering" criteria and process. (d). Exempted fisheries and gear types. Commercial fisheries eligible for the 15-year exemption in Gl!!cier Bay proper would include trolling for salmon, long lining for halibut, and pot or ring net fishing for Dungeness and tanner crab. These are the fisheries that have consistently occurred within Glacier Bay for decades. All other fisheries and gear types would be prohibited. Since 1985, NPS regulations • ·.d. · .. ., 18552 Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules have expressly prohibited commercial fishing for shrimp, herring and whale prey species, and trawling in Glacier Bay. The exempted fisheries would be governed under a cooperative fisheries management plan developed by NPS and the State consistent with federal and non-conflicting State regulations. The plan would be implemented through the Alaska Board of Fisheries, with the Secretary retaining the authority to protect park purposes and values under applicable law. (e). Safe Harborage. Nothing in this proposed rulemaking, or existing NPS regulations, would affect the ability of fishermen or other vessel operators to seek safe harbor within Glacier Bay under hazardous weather or sea conditions, when experiencing mechanical problems, or in other exigent circumstances. (f). Opportunity for "Buy Out." Commercial fishermen who qualify for and obtain a special use permit for the 15-year exemption as outlined above might be willing to sell the permit to the NPS or a third party for the sole purpose of retiring the permit. Subject to the availability of funds for this purpose, NPS might be willing to buy these permits, especially early in the 15-year exemption period, to enable and encourage the fishermen who wish to pursue alternatives to fishing in Glacier Bay proper. Any such "buy out" would require, at a minimum, a willing seller, a willing buyer, and available funds. Wildemess This rule making reflects the Wilderness Act's statutory prohibition on commercial fishing within designated wilderness. Within Glacier Bay National Park, the wilderness waters of Dundas Bay, Rendu Inlet, Adams Inlet, the Hugh Miller Inlet complex, and the Beardslee Islands would continue to be closed to commercial fishing, a commercial enterprise incompatible with the requirements of the Wilderness Act of 1964. Outer Waters Exemption from current NPS prohibition on commercial fishing This proposed rule would provide an exemption from the existing regulatory prohibition on commercial fishing in the nonwilderness waters of the Park located outside Glacier Bay proper. Authorized fisheries would be allowed to continue under a cooperative fisheries management plan developed by the NPS and State of Alaska and implemented through the Alaska Board of Fisheries. The NPS recognizes the fisheries management expertise of the Board of Fisheries, and would like to incorporate the use of this established regulatory and public involvement process familiar to the fishing community. NPS management objectives for the outer waters would be incorporated within this plan and include limits on the significant expansion of ongoing fisheries; protection of resident and sensitive fish species, including salmonid populations that spawn within the park; protection of other park wildlife and resources; and, minimization of conflicts with visitor use. A cooperative fisheries management plan would be regularly reviewed and evaluated with respect to achievement of State and NPS management objectives, and modified as necessary. Where NPS management objectives are not met under cooperative State/federal man tgement, the Secretary could move to clc ;e or modify ongoing fisheries to protec : park purposes and values following hppropriate procedures, including notice and hearing in the local area. Continued cooperative management would be reevaluated at the end of 15 years. The proposed fifteen year exemption from the existing prohibition on commercial fishing in national park waters, with a re-examinaton of scientific and other information at that time, differs in significant respects from the seven-year exemption proposed by NPS in 1991, which would have presumptively closed park waters to commercial fishing at the end of the seven year exemption. This proposed rule responds to concerns from the fishing community and State regarding the long-term viability and importance of fisheries in the outer waters, particularly the troll fishery for salmon, which-according to comments received on the 1991 proposed rule-is of special importance and concern.NPS invites comment on the duration and ter!lls of the proposed exemption for the "outer waters." Gear Types Fisheries authorized under this proposed rule would be delineated in the cooperative management plan, and would be limited to those species and gear types that have historically occurred and have provided commercially viable fisheries. New fisheries and gear types, or the expansion into the park of relatively new fisheries developing in Southeast Alaska (e.g., sea urchins, sea cucumbers) and other species not previously fished in the park, would be precluded. Gear types would be limited to those that have been historically prevalent in the outer waters: troll, long line, pots and ring nets, and purse seine (Excursion · Inlet only). Lituya and Dundas Bays Two bays in outer waters merit special consideration: Lituya Bay on the Outer Coast and Dundas Bay in Icy Strait. These bays are arguably unique among outside waters. Both are geologically, culturally, and historically rich. Both provide sheltered habitat for marine life as well as outstanding opportunities for recreation. NPS specifically solicits public comment on whether these two special bays should be afforded additional protection through limitations on commercial fishing, including the possibility of a phase-out similar in approach to that proposed for Glacier Bay proper. Safe Harborage This proposed rule would not affect the use of protected bays along the park's outer waters for safe harborage. Safe harborage has always been allowed and will be continued for any vessel. Research The continued closure of certain areas of Glacier Bay National Park to commercial fishing as contemplated under this proposed rule presents unique and extremely valuable opportunities for science. The opportunity to pursue scientific endeavors about natural resources and processes was a primary reason Glacier Bay was established as a national monument in 1925. Indeed, Glacier Bay National Park has a distinguished scientific history. NPS intends to work closely with the State, the scientific community, other fisheries, protected area managers, and the public to evaluate opportunities for carefully considered and designed cooperative studies presented by the proposal under consideration. A cooperative State and NPS fisheries management plan would, in part, identify cooperative research needs and opportunities that can benefit conservation of resources in the Park, and contribute toward models for sustainable fisheries and economies throughout Alaska and elsewhere. Dungeness Crab Study The ongoing MADS (Multi-Agency Dungeness Studies) is a cooperative project initiated in 1992 by the National Marine Fisheries Service, University of Alaska. Fairbanks, and the Biological Resources Division (BRD) of the U. S. Geological Service (USGS) (formerly National Biological Service). Phase I of the MADS study gathered data • ' . ! Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules 18553 characterizing the size and structure of the Dungeness crab population at selected sites in Glacier Bay. Phase II of the study (five to seven years) requires both closed and open fishing areas for Dungeness crab within the Beardslee Islands study area, including Bartlett Cove; population parameters in the fished sites will be compared to sites closed to fishing. The information established by this study will provide an invaluable baseline for monitoring these areas with different fishing histories over time. NPS had previously determined that the aspect of this scientific research that requires limited harvesting within the Beardslee Island wilderness comports with the restrictive criteria applicable to approving scientific research in a wilderness area, including the following: the project is of minimal impac and duration, its information is likely o be of great value for resource protec Jon and protected area management purposes, and alternative locations are not available. Controlled experiments testing the impact of human exploitation on the population structure of harvested marine species are rare. Typically, areas that have been fished in the past are not available to study as "unfished" areas until the fishery has "crashed," i.e., been depleted. Comparison of the crab population structure in fished and non- fished areas in Glacier Bay NP during this transitional period will markedly enhance the information base available to NPS managers in evaluating the relationship between fishing activities and the protection of park/wilderness resources, and will also be valuable in quantifying the recovery of wilderness waters to an unexploited state. Furthermore, such information should prove valuable to all agencies involved in fisheries management in Alaska and elsewhere. A small number of fishermen with an extensive knowledge of the Beardslee Islands Dungeness fishery may be authorized to participate in the study under a "research project" special use permit from the NPS. For the stability of the study and principles of equitable selection, participation in the study would be limited to those fishermen who meet the criteria for fishing in Glacier Bay during the fifteen year exemptive period, and have a personal history of Dungeness crab fishing within the Beardslee Islands. Additional criteria may be considered if the number of eligible participants exceeds study needs. Fishing activities during the study would continue consistent with applicable State regulations. including the summer Dungeness fishery, currently june 15-August 15. The participation in this research project does not preclude the fishermen from qualifying separately to fish in nonwilderness waters outside the study area. The proposed rule would close Bartlett Cove (defined as that area of the cove enclosed by a line drawn between Halibut and Lester Points) and a portion of the Beardslee Island waters to all fishing for Dtmgeness crab (including sport and personal use) for the purposes and duration of study through December 31,2002. Maps and charts would be available from the Superintendent delineating the closure area. The closure would not affect fishing opportunities for other species, as otherwise allowed under federal and non-conflicting State regulations. Halibut Study Proposal The NPS is specifically seeking public comment at this time on a halibut study that would measure the effects of commercial harvest on halibut in Glacier Bay proper. Since 1992, research on Pacific halibut in Glacier Bay has concentrated on the many unanswered questions about the basic life history and ecological relationships of the species. New knowledge about the behavior of halibut, including their use of small home ranges, site fidelity, and the retention of reproductive individuals in Glacier Bay throughout the year, combined with the species' slow maturation and highly age- dependent reproduction, indicates that halibut have a high potential to experience local depletion through fishing. Thus, this species is a good candidate for additional protection and for examining the effects of commercial fishing by comparing open and closed areas. Through experimental closures. an understanding can be gained of the effects of fishing on halibut population size and structure, as well as any cascade effects on prey species. The halibut study would require the closure of Glacier Bay above Strawberry Island within the next few years, and would compare catch per unit effort and size structure of the halibut in the closed area to a similar study site in Icy Strait where commercial halibut fishing would continue. Although this experimental closure, as proposed for review and comment, would substantially reduce the area available within Glacier Bay for commercial halibut fishing during the 15-year exemption period, it would not be expected to have an equivalent impact on harvest. Available harvest data indicates a majority (> 50%) of halibut harvested in Glacier Bay are taken from the area of Glacier Bay which would remain open to fishing under this study proposal. Available biological data correlates with the harvest data, indicating highest numbers of halibut in the lower reaches of Glacier Bay and very few in the upper reaches. Under this study proposal, fishermen would continue to have access to the most productive area in Glacier Bay to harvest their IFQ shares of halibut. The halibut study outlined above would allow fisheries managers an unparalleled opportunity to measure the effects of commercial fishing on halibut. This information is extremely important to the management and protection of halibut fisheries in and out of the Park, and serves to illustrate the potential benefits Glacier Bay National Park holds for science and the long-term conservation of fisheries resources . Hoonah Tlingit Cultural Fishery NPS and the Hoonah Indian Association (HIA), a federally recognized tribal entity, signed a Memorandum of Understanding in 1996, committing to work cooperatively to protect the cultural heritage of the Hoonah Tlingit, explore ways to recognize and honor the Tlingit's cultural connection to Glacier Bay, and allow for-and preserve-cultural activities compatible with park objectives. Toward that end, NPS will work with HIA to develop a cultural fishery program designed to preserve and pass on traditional native fishing methods. The State of Alaska's educational fishery program may serve as a vehicle for developing such a program. Pending Enviromnental Assessment: Alternatives under Consideration A forthcoming Environmental Assessment on commercial fishing within Glacier Bay National Park will more fully describe and analyze the potential effects of a range of alternative actions under consideration by the NPS. Brief descriptions of the draft alternatives under consideration follow and are offered to solicit preliminary ·public review and comment. A public review and comment period will be provided for the Environmental Assessment an_d the proposed rule together. NPS will hold public meetings on the proposal and the alternatives arid publish a schedule of times, dates and locations in the Federal Register. NPS has not made any final decisions regarding any proposals described herein. No final decisions will be reached until all applicable legal , .... 18554 Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules requirements have been met, including environmental review requirements. Alternative A (No Action) This alternative would leave in place the current regulations prohibiting commercial fishing activities within Glacier Bay National Park. Enforcement of the regulation would result in the cessation of all commercial fisheries in Park waters. NPS would explore possible mitigation mechanisms for affected fishermen. In addition, the NPS, in cooperation with the State of Alaska, the Biological Research Division, and other research entities, would explore opportunities to facilitate fishery research. This alternative would not require regulatory or legislative action. Alternative B This alternative would provide short- term, year rour d commercial fishing opportunities 1 1rough a five-year exemption frm n the existing NPS regulatory prohibition on commercial fishing in Glacier Bay proper and a longer, fifteen year exemption in waters of the Park located outside Glacier Bay. The statutory prohibition on commercial fishing in designated wilderness areas would be reflected in the regulations. Fishing may be continued in specific locations in the Beardslee Islands as part of an ongoing scientific study of Dungeness crabs for a period of five years. The five-year exemption in Glacier Bay would be available only to individual fishing vessel/permit owners who can demonstrate a history of consistent participation in each specific Glacier Bay fishery. The primary criteria would be documented participation in a given fishery for at least six of the last ten years ( 198 7 -1996) , as verified by a minimum number of reported Glacier Bay fish landings and ownership of the appropriate fisheries permit(s), effective 1996. Fishermen not meeting criteria demonstrating consistent participation in fisheries, who have used the Bay only intermittently or in recent years, would not be allowed to fish in Glacier Bay. Fisheries located outside Glacier Bay proper would be allowed to continue under a cooperative fisheries management plan developed with the State of Alaska and implemented through the Alaska Board of Fisheries for 15 years. During the 15-year period studies and research regarding the relationship of commercial fishing uses to park resources and values would be conducted. If data from such studies indicate that certain levels and/or types of commercial fishing can compatibly coexist with conserving park resources in an unimpaired state, then the NPS may allow closely monitored commercial fisheries at prescribed levels after the 15-year period. Alternative C (Proposed Action) Alternative C would allow continued fishing in the Park's marine waters outside Glacier Bay proper, subject to achievement of NPS management objectives as would be defined in a cooperative management plan developed with the State. The regulations will reflect the statutory prohibition against commercial fishing in designated wilderness waters. Fishermen with a consistent history of participation would continue to fish within Glacier Bay for halibut, Dungeness and tanner crab, and salmon during a 15-year exemption period. Glacier Bay would close to commercial fishing during the visitor use season, May 1-September 30, to minimize conflicts with visitor use and Vessel Management Plan objectives. A research study on Dungeness crab would occur in the Beardslee Islands requiring closure of part of the Beardslee Islands, and Bartlett Cove, to all Dungeness crab fishing for a five-year study period; an · additional research opportunity for halibut is suggested for public comment. Alternative D (Continued Fishing) Alternative D would allow continued fisheries harvest at the highest possible level while protecting park resources. This alternative, to the extent possible, would seek to allow local individuals to continue a traditional fishing lifestyle, promote and sustain fishing culture and maintain the economic viability of small business interests in Glacier Bay National Park and adjacent communities. With the exception of some fisheries, most would be authorized to continue throughout Glacier Bay National Park. This alternative would prohibit fisheries for those species vulnerable to over harvest (i.e., all king crab species, all rockfish species and ling cod), fisheries causing unacceptable habitat degradation (i.e., weathervane scallop dredge fishery), and trawling. The statutory prohibition on. commercial fishing in Wilderness would be reflected in the regulations. This alternative would require a fisheries research and management program to obtain new information and assemble existing fisheries data for periodic evaluation regarding continued viability of fisheries. Periodic review would be accomplished by the NPS in consultation with appropriate fisheries management agencies. Alternative D would also require regulatory action to authorize commercial fisheries in park waters. Section-by-Section Analysis Paragraph (a) (1} would provide an exception, for the non-wilderness marine waters of Glacier Bay National Park, from the general NPS prohibition on commercial fishing; subparagraph (i) clarifies that wilderness waters remain statutorily closed. . Subparagraph (ii) (A) would require an NPS issued permit to conduct commercial fishing activities in Glacier Bay proper; (ii) (B) would establish eligibility and application requirements for commercial fishing in the Bay; (ii) (C) would establish an October 1 through April 30, non-renewable 15-year exemption period for commercial fishing in the Bay; commercial species and methods of take that would be allowed within the Bay are proposed in (ii)(D}. Subparagraph (iii)(A)-(B) would authorize the existing, prevalent commercial fishing operations in the other marine waters of the Park for a period of 15 years under a cooperative Federal/State management plan; (iii) (C) would require reexamination of continued commercial fishing under the cooperative agreement, based on the best scientific information and in consideration of park values and purposes, in the outer waters of the park at the end of the 15-year period. Paragraph (a) (2) prohibits fishing for Dungeness crab within Beardslee Island study area, including Bartlett Cove, until December 31, 2002, except as authorized by a research permit. This will allow NPS/USGS BRD to complete the Multi-Agency Dungeness Studies initiated. in 1992 by National Marine Fisheries Service and the University of Alaska, Fairbanks. The closure would not effect fishing opportunities for other species. Paragraphs {b) (5}-(6) that prohibit both commercial harvest of species identified as whale prey and methods that remove these spech~s are prop.osed to be withdrawn and reserved; paragraph (a) (1) (ii) (D) would replace them. Drafting Information: The primary authors of this rule are Molly N. Ross, Office of the Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior, Washington, D.C., Randy L. King, Chief Ranger, Glacier Bay National Park and Preserve, and Russel]. Wilson, Alaska Desk Officer, National Park Service, Washington, D.C. Other contributing National Park Service employees include: John W. Hiscock, Marvin Jensen. Mary Beth Moss, and Chad Soiseth. -I •! 6 -" -.. Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules 18555 Public Participation It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemakl.ng process. Accordingly, interested persons may subqtit writte'n comments regarding this proposed rule to the address noted at the beginning of this rulemaking. The NPS will review all comments and consider making changes to the rule based upon a thorough analysis of the comments. NPS will schedule and provide specific notice of public meetings and discussion sessions in various locations during the comment period. Paperwork Reduction Act The collection of information contained in section 13.65 (a)(1)(ii)(B) this rule is for the purpose of issuing a permit to allow a continuation of commercial fishing in Glacier Bay National Park based upon historical justification. The information collected will be used to determine who qualifies for the issuance of a permit. The obligation to respond is required to obtain a permit. Specifically, the NPS needs the following information to issue a permit: (1) Applicants name, address and date of birth. (2) Vessel name, registration, ADF&G license numbers and description. (3) Alaska Limited Entry/Interim Use Permit Card Number. (4) Halibut Commission license number. (5) Fishery description/gear type. (6) Documented fish landings (1987- 1996). NPS has submitted the necessary documentation to the Office of Management and Budget under 44 U.S.C. 3501, et seq., requesting approval for the collection of this information for all areas covered by this rule. A document will be published in the Federal Register establishing an effective date for§ 13.65(a)(l)(ii)(B) when that approval is received from OMB. The public reporting burden for the collection of this information is estimated to average less than two hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden of these information collection requests, to Information Collection Officer, National Park Service, 800 North Capitol Street, Washington, D.C. 20001; and the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for Department of the Interior (1024-0125), Washington, D.C. 20503. Compliance With Other Laws This rule was reviewed by the Office of Management and Budget under Executive Order 12866. The Department of the Interior determined that the proposed rule is not major. The Department of the Interior determined that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S. C. 601 et seq). The revision mainly clarifies previously existing statutory and regulatory prohibitions. The expected redistribution of commercial fishing efforts to areas outside of the park is not expected to significantly effect a substantial number of small businessmen. The NPS has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule will not impose a cost of$100 million or more in any given year on local, State, or tribal governments or private entities. Pursuant to the National Environmental Policy Act, 42 U.S. C. . 4332, NPS is preparing an environmental assessment (EA) on the proposed action and alternatives that are outlined in this rule. The Service will complete the EA and publish a notice of availability in the Federal Register during the comment period provided for in this rule so that interested piuties (:an comment contemporaneously on both documents. List of Subjects in 36 CFR Part 13 Alaska, National parks, Reporting and recordkee ping requirements. In consideration of the foregoing, NPS proposes to amend 36 CFR part 13 as follows: PART 13-NATIONAL PARK SYSTEM UNITS IN ALASKA 1. The authority citation for Part 13 continues to read as follows: Authority: 16 U.S.C. 1. 3, 462(1<), 3101 et seq.; § 13.65 also issued under 16 U.S.C. 1a- 2(h), 20, 1361. 1531, 3197. 2. Section 13.65 is amended by adding paragraph (a) and removing and reserving paragraphs (b) (5) and (b)(6) to read as follows: § 13.65 Glacier Bay National Park and Preserve. (a) Fishing.-(1) Commercial fishing. During the time frames that follow, specified commercial fisheries in listed salt waters of Glacier Bay National Park are exempt from the commercial fishing prohibition contained in this chapter: (i) Commercial fishing and associated buying and processing operations within designated wilderness areas are prohibited. Maps and charts showing designated wilderness areas are available from the Superintendent. (ii) Glacier Bay. (A) A non- transferable special use permit issued by the Superintendent is required to conduct commercial fishing within Glacier Bay during the exemptive period. Commercial fishing without a special use permit is prohibited. (B) Eligibility requirements to obtain a special use permit for each fishery include a current, valid State and/or federal commercial fishing permit(s) fc · Glacier Bay waters; participation in thl fishery within Glacier Bay a minimum ofsixyears during the period 1987- 1996, as verified by affidavit and documentation of at least one landing in each year from Glacier Bay for halibut, salmon, or tanner crab; for Dungeness crab, ten landings are required in each of the six qualifying years. Application for a special use permit must be made within two years from [effective date of the final regulation]. (C) October 1 through April 30, commercial fishing and associated buying and processing operations are authorized in all non-wilderness waters of Glacier Bay north of a line from Point Carolus to Point Gustavus for a period of 15 years from the effective date ofthis regulation. At the end of the exemptive periods, all commercial fishing and associated buying and processing operations shall end, and the prohibition contained in this chapter shall apply. (D) Commercial fishing for other than the following species, or by other than the following methods is prohibited: trolling for salmon, long lining for halibut, pot or ring net[ishing for Dungeness and tanner crab. (iii) Outer waters. (A) Commercial fishing and associated buying and processing operations are authorized in all marine waters within park boundaries not listed in paragraph (a) (1) (ii) (B) of this section, pursuant to a cooperative federal and State of Alaska management plan for a period of 15 years from [effective date of the final regulation]. (B) Commercial fishing by other than the following methods is prohibited: trolling, long lining, pot and ring net • 18556 Federal Register I Vol. 62, No. 73 I Wednesday, April 16, 1997 I Proposed Rules fishing for Dungeness and tanner crab, and purse seining in Excursion Inlet. (C) At the end of the 15-year exemptive period, the Sec.retary will reexamine and reevaluate continued commercial fishing in the outer waters, based on the best available scientific information and in consideration of park values and purposes. (2) Fishing for Dungeness crab within the Beardslee Island study area, including the area enclosed within Bartlett Cove by an imaginary line drawn between Lester and Halibut Points, is prohibited until December 31, 2002, except as authorized by a NPS research permit. Maps and charts showing the Beardslee Island study area are available from the Superintendent. * (b) * * * (5) [Reserved] (6) [Reserved] * * * * Dated: February 13, 1997. George T. Frampton, Jr., Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 97-9800 Filed 4-1.5-97; 8:45am] BlUING CODE 4310-7~ ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [OH106-1b; FRL-5808-6] Approval and Promulgation of Implementation Plans; Ohio AGENCY: Environmental Protection Agency (USEPA). ACTION: Proposed rule. SUMMARY: On November 12, 1996, USEPA received a State Implementation Plan (SIP) revision request from the Ohio Environmental Protection Agency (Ohio EPA). This revision request was in the form of an amendment to the Ohio Administrative Code (OAC) which added an additional exemption from organic compound emission controls for qualifying new sources. In this action, USEP A is proposing to approve the State's SIP revision request. In the final rules section of this Federal Register, the USEPA is approving this action as a direct final rule without prior proposal because USEP A views this as a noncontroversial action and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to that direct final rule, no further activity is contemplated in relation to this proposed rule. If USEPA receives substantive adverse comments not previously addressed by the State or USEPA, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on the proposed rule. USEPA will not institute a second comment period on this action. Any parties interested in commenting on this document should do so at this time. DATES: Comments on this proposed rule must be received on or before May 16, 1997. ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18]), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Copies of the State submittal and USEPA's analysis of it are available for inspection at: Regulation Development Section, Air Programs Branch (AR-18]}, U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. FOR FURTHER INFORMATION CONTACT: Randolph 0. Cano, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312} 886-6036. SUPPLEMENTARY INFORMATION: For additional information see the direct final rule published in the rules section of this Federal Register. Dated: April!. 1997. Michelle D.jordan, Acting Regional Administrator. [FR Doc. 97-9751 Filed 4-15-97; 8:45am] BlUING CODE~ ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [IN73-1 b; FRL-5808-1] Approval and Promulgation of Implementation Plan; Indiana AGENCY: Environmental Protection · Agency (USEP A). ACTION: Proposed rule. SUMMARY: The USEPA is proposing to approve the State Implementation Plan (SIP) revision request submitted by the Indiana Department of Environmental Maintenance (IDEM) on October 2, 1996. In the October 2 submittal, IDEM requested a SIP revision to eliminate references to total suspended particulates (TSP) while maintaining the existing opacity requirements. In the final rules section of this Federal Register, US EPA is approving the State's SIP revision as a direct final rule without prior proposal because the agency views this as a noncontroversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this proposed rule, no further activity is contemplated in relation to this rule. IfUSEPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. USEP A will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by May 16, 1997. ADDRESSES: Copies of the revision request are available for inspection at the following address: U.S. Environmental Protection Agency, Region 5. Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (It is recommended that you telephone Ryan Bahr, Environmental Engineer, at (312) 353-· 4366 before visiting the Region 5 Office.) · Written comments should be sent to: J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. FOR FURTHER INFORMATION CONTACT: Ryan Bahr, at (312) 353-4366. SUPPLEMENTARY INFORMATION: See the information provided in the direct final action of the same title which is located in the Rules and Regulations Section of this Federal Register. Authority: 42 U.S.C. 7401-7671q. Dated: March 28, 1997. Valdas V. Adamkus, Regional Administrator. [FR Doc. 97-9792 Filed 4-15-97; 8:45am] BILLING CODE 6560-5~