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HomeMy WebLinkAboutGLBA Re-Proposed Commercial Fishing Rule 1999I • .. .. ·----...--~ ---·-.... ~ .. t . -.:J ' . ."i . ·""J .... r = ....,~ .. .-, \ ·. '; . ;~\ ! ! ! ~ .. \ \ ; ; ·. ! ' ' \ TONY KNOWLES, GOVERNOR ,_; \ .... \ \ \ .. ., J ~ {.J -~ J -..= ·~ ' ~ ·-r '~• : . • " . .,J .... ~~ •.• ·-· -... ._,J •• OFFICE OF THE GOVERNOR· OFFICE OF MANAGEMENT AND BUDGET DIVISION OF GOVERNMENTAL COORDINATION f!i SOUTHCENTRAL REGIONAL OFFICE 3601 ·c· STREET. SUITE 370 ANCHORAGE, ALASKA 99503·5930 a CENTRAL OFFICE P.O. BOX 110030 JUNEAU, ALASKA 99811·0030 a PIPELINE COORDINATOR'S OFFICE 411 WEST 4TH AVENUE, SUITE2C ANCHORAGE, ALASKA 99501·2343 PH: (907) 271-4317/FAX: (907} 272·0690 PH: (907) 269·7470/FAX: (907) 581-6134 PH: (Q07) 465·35821FAX: (907} 465-3C17l1 01....uti.H February 1, 1999 Ms. Tmnie 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 w~re made moot by the 1998legislation. We have considered it prudent to comment on all aspects of the draft regulations that may impinge on commercial fisheries activity in the relevant wa~ers. 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Procedural Requirements • NPS"si1ould publish a new proposed rule that clarifies how the April 1997 rule is modifl~d or superseded by the 1998 Act, and how NPS intends to proceed with implem~htation. ... , . .-. , • 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 Murkowsk.i, 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 of Fish and Game John Shively, Commissioner, Department ofNatural Resources Bruce Botelho, State Attorney General John Katz, Governor's Washington D.C. Office 3 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, obJ~ctives, 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 hahitat or animal populationS may be an important tool of fish and tdldlife 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 im~lementation by the Secretary of the Interior of subsistence program recommendations developed by Park and Park Monument Subsistence Resource • ·I I Commissions pursuant to ANILCA Section 808(b) will take_into a~count exist- ing State regulations and will use the State's regulatory pro~ss as the -- pr~ry means of develo~ing Park sub~ist.ence use 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 ac equivalent :ield leve.!..: to the Regional Director and to the Commissioner for resolution before eithe~ 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 che 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 ~0. By----------------------~~-----Ronald 0. Skoog !-··~·. ...., c:....--:--1 .·· By__. \ ~+c.-~f (___ JOhn E. Cook Commissioner Regional Director, Alaska Date /tf 0~ ----~~~--------------------Date Oc.{Jo4'.1"' S, l ~S"L... 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 Fishery 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, Anoplopomafimbria, Stock Assessment in the Inside Waters of Southeast Alaska, NOAA Technical Report NMFS 130 • · Alaska·Comrtlercial Salmon Trolling Regulatory Guide, Winter 1999 (adopted October 1998) • Yakutat Set Gillnet Fishery 1998 Management Plan • Management Plan for Chinook and Coho Salmon in the Southeast Alaska!Y 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 ShelfRockfish 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'-----------T-ABL-E-UI--.!J--------------- Alaska Commercial Fishing Permits Reporting Landings by Species Fo1· Jcy Strait Communities, 1995 ' ' ' cqMMUNITY ' 199:0 Population ~ 199~ P~rsons Fishing Pcrfits ' Co~. Fis~/Population ' Pcimits/Fisherman ' SALMON Su~total salmon (%) permits HA~IBUT ·.:· Su*otal halibut (0/o) pednits . ' ' Elfin Cove 57 27 .47 1.67 23 (50%) lS (33%) Gustavus 258 21 .08 1.67 8 (23%) 12 (34%)) Hoonah 795 75 .09 1.79 61 (45.5%) 44 (32.8%) Pelican 222 50 .23 .1.9 37 (39%) SA)lLEFISH 4 {8.7%) 3 (8.6%). ····.-. _15 (11.2%) .· 17 (18%) . CR,AB J?ungeness Tanner ~ing Su*otal_crab (%) perJ:nits SH:IpMP ROCKFISII·' ' ~ T01AL PERMITS · FO~ SEnECTED ·SPECIES·· i : . i : : 1 0 0 1 (2.2%) 2 (4.4%) 0 45 6 5 0 11 (31.4%) 1 (2.9%) 0 35 ,_ __ .wS.w.;OJl~~ ........ ~~cial Fisheries Entry Commission 2 2 6 1 3 0 11_ (~.2%) 3 (03%) 3 (02%) 3 (03%) o· o. 134 95 ------·i---·---·-·· .... ---·--· ····-· ··-······· . ·-·· ··:-···· ----.. ·--···-···---· .. ·--·-. ··-··· -----·-·-------·~·-··-··-------· -- ! • . -.·-j. -. .. . . ... ··-- .1 I ; -:-.. :·.=---~!:. .. ·-··: •. -: -:--.--··-. . ...• ~-·-·. .. . ....... ~--.. _____ -·-· -· ··----~-· ······~·-.. . . ....... ··--·· ·-·--· .._ __ -·-·---· Table 111·3 Distribution of Alaska Commercial Fishing P~nnits by P~rmit Type in Icy Strait Communitie51 _1996 ' COI\1MUNJTY 1990 :t'npull!-tinn 1996lTotal rcnuil$ Pcrmju per Resident rcnnlu per IJoldcr SAUylON Httnd troll ! halibut i misc. nsh Po.\vcr l.roll Pul'lle rcinc ~ift ;illnct (SH) Subt~t11l salmon (%) HAI..llllJT < s: lon:r, lonslinc > s: tanR, lnnglinc ~lac. i'isb, lnnsllnc l\iGChanlcal Jls . Subto:Utlulllbut (%) ' SABj.5FlSJi CRAB 04ngcncss ~ S tens, pots ;:i-S tons, polS Tll~ner ~ 5 tons, pols ~ 5 tons. pots Ringncts Klpg, Subt(l!al crab(%) SliRIMP R.Oc4Ml>1-l ' ! OTHER ' mnn Cove 51 396 6.9 2.6!) 80 13 10 GO 0 I 164 (41.4%) 63 3G 28 8 135 (34%) 22 (5.6%) IS 3 2 0 2 I 23 (!1.8%) 9 (2.2.%) 9 (2.2%) 311 (S.G%) Ciust11vu~ 258 350 1.4 2.99 ss 25 1 24 I 2 108 (30.11%) 52 2:1 18 10 103 (29.4%) 14 (4%) II 30 9 0 16 0 66 (19%) 10 (2.9%) 4 (1.1%) 4S (12.9%) Soutce: Commercial Fisheries Entry Conuui.ssion --------.. -~--.. ·-·----·----.. ···-·· _ ....... ·-............ -.... ··-- i. ' ... lioonah Pclicun 79S 222 930 8!10 1.2 4.0 2.67 3.47 l7S 102. 7 so 31 8 69 109 29 I 4 (1) 10 (8) 415 (47%) 2SO' (32%) IR7 KJ 68 101 41 61 15 36 311 (35%) 2S5 (32%) 39 {4.'4%) . s7 (I0"1oi) ·s 26 17 7 7 6 4 2 12 2 16 13 6 I (6.9%). 56 (06%) 18 (Ol%) 35 (04%) (l ottcr·trawl) 1~ (02%) 25 (2.8%). 69{7.5%) S6 (6.2%) .. ·· ··- ~----·--~----··---·--··-·--·-··. ----·- DRAFT . ---· . .. -.. ·-· . -.··· --. -·· -... .. . . -. .. ··-·· ..• -··--. Table Ill-4 Alaska Commercial Fishing Earnings for Icy Strait Communities, 1975-1995 ;yEAR! : COMMUNITY EARNINGS Elfin Cove Gustavus Hoonah Pelican (thousands) 7S $588.50 $249.50 76 $768.80 77 $1,180.70 78 $1.20.90 $2,175.80 79 $758.90 $2,596.40 80 $237.60 $1,805.50 81 $337.90 $2,236.60 82 $3,215.90 83 $2,182.10 •$2,1~7.40 84 $534.60 $2,383.30 $2,595.20 85 $664.40 $331.10 S2,643.:ZO $2,774.50 86 $57L90 $2,403.50 $3,816.80 87 $~33.60 $571.10 $2,727.40 $3,983.40 88 $807.20 $553.30 89 $728.90 $543.80 90 $740.90 $3,208.90 $3,096.00 91 $780.70 $772.10 $3;658.10. 92 $630.80 $3,420.70 $2,767.00 93 $837.80 $803.20 $3,263.50 $2,871.00 94 $1,083 .. i0 $4,742.40 $3,861.60 95 $934.50 $849.00 $2,649.90 $3,001.50 No~e: Empty cells indicate data suppression due to Alaska 'statutes on confidentiality. So~rc~: Commercial Fisheries Entry Commission :. ! ; : : ~ . i i : .... --· .. ---··--·· 0 t I· :> '"· ~ Z' ~ ~ ... e PERMITS AND EARNINGS BY ALL FISIIERMEN l() WITH LANDINGS FROM ~ GLACIER BAY NATIONAL PARK DISTRJCfS, -.c 1994 ~ E-4 (In ttaousandl of dollan) TOTAL TOTAL TOTAL TOTAL TOTAL TOTAL PERMIT/EARN PERMlTIEARN 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 lCYSTRAtT PROPER OTHER SE ALL FISHERS 810 810 484 256 243 57 $87,&33.5 $58.849.7 $8,817.3 $5,389.5 $2,197.4 $1,250.3 ' SEAK 651 661 372 182 216 64 FISHERS $82,528.6 $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 $9,823.5 $2,087.2 $1,072.8 $627.5 $368.9 OtherSE 480 480 283 135 1-44 31 $42,180.3 $42,180.3 S4,9li8.2 $2,830.8 $1,289.6 $835.8 OTHERAK 31 31 21 18 s 1 FISHERS $3,8&7.5 $9857.8. $485.3 $408.1 $37.8 NA NON-AK 1ZB 128 71 sa 22 2 FISHERS $11,149.3 $11.149.3 $1,328.8 $1,059.8 $242.8 NA C' ~ ~ -PERMITS AND EARNINGS BY ALL FISHERMEN 8 WITH LANDINGS FROM \C) ~ GLACIER BAY NAUONAL PARK DISTRICTS, -,.Q 1995 ~ E-t {in thouJand• of dollan) TOTAL TOTAL TOTAL TOTAL TOTAL TOTAL PERMIT/EARN PERMIT/EARN PERMIT/EARN PERMIT/EARN PERMIT/EARN PERMIT lEARN FROMGB FROMGB FROMGB FROM OUTER FROM CROSS FROM DISTRICTS DISTRICTS DISTRtCTS COAST SOUND/ GLACIER BAY PLUS ALL PLUS OTHER ICY STRAIT PROPER OTHER SE ALL FISHERS 836 836 S56 381 253 82 $28,508.7 $23.411.5 $4,049.& $1,040.6 $1,887.8 $1,321.1 SE AK FISHERS 620 620 423 288 221 17 $19,821.3 $18.033.0 $3,082.7 $264.2 $1,568.5 $1,2!50.1 local 156 181 110 59 84 24 $2,764.3 $2,874.1 $768.1 INC $608.1 $234.3 OlherSE 484 464 313 208 137 53 $17,077.4 $15.358.9 $2,314.6 $238.5 $1,080.3 $1J01&.8 OTHERAK 32 32 24 19 19 1 FISHERS $1.15153.8 $98&.1 $219.8 $212.3 $212.3 NA NON-AK FISHERS 184 184 109 84 94 4 $5,134.0 $4,393.4 $747.0 PG4.1 $584.1 NA ·:~~.-.. I .. '':r f> -. 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 April1989, 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-rankirig 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 1,1 00 people during the peak seaSon. The state runs the Crystal Lake Hatchery that contributes to the local salmon resomce, 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 recovet. 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; 38 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 The State of Alaska's supplemental comments on the National Park Service (NPS) proposed rule at 62 Fed. Reg. 18547, published April16, 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 Aprill6, 1997. Just prior to publication of the proposed rule, the 91h Circuit Court of Appeals issued its opinion in Alaska Wildlife v Jensen which affirmed that commercial fishing is not statutorily prohibited except in wilderness areiis 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 April1997 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 rulemaking. . . 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 Departnient 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 of fisheries (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 F .3d 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- 4)2. 2 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 A.NILCA 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 8:Ccess 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 3 6 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 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) ofthe 1998Act addressed management ofthe 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 ofthe 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 "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 andgear 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 April1997 rulemaking and the EA reflect a poor understanding of fishery management plans already adopted by the Board ofFisherie~ 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 limif fisheries 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 H11376). 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 pillsuit of -cooperative effo-rts "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 opportu.nity for 'the study of marine resources. " The State is committed to fully participating in implementation of this particular clause of the legislation. We 9 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 c,ooperation 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 permit 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 }lave 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 mutual 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 offishermen eligible to participate in the remaining fisheries is unnecessary to assure conservation management and sustained 11 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 of fish, 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 those changes and respond appropriately to assure sustained yield 12 • 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 ifthe 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 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 throughDecember31, 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 ofthe 1997 rulemaking states: (b) 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; 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 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 " ... would also reduce the effect of unlimited numbers of commercial fishing vessels on sensitive park resources." 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 pop;ulation 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 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 (RF A). 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 final 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 m.ust 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 RF A. 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 th~ proposed rule "mainly clarifies previously existing statutory and regulatory prohibitions. The expected re~istribution 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. 18~47, 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 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 pr<?posed 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 significantiy 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 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 ofimpacts 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 E~ 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 fishi':lg 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 oflarger 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 rille 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 purposesofthe 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 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)(l3), in which the Board has closed the waters of Torch Bay north of the latitude of the southernmost point of Venisa 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 eo us) 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 f~deral 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 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 ojthe 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 harv~st 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 ~pdating 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 mi:Jllagement 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 ofthe 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 repl~ce _this description. 31 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 of the 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 suriuner 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. Following 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 of Fisheries determines locations of the total number of chinook-between user groups. The source and years is not provided of the 10% 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 of the 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 of waters out to only 3 miles. Districts 156 and 157 are seaward ofDistrict 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 ground.fish fishers to successfully procure Pacific halibut /FQ . . .. " 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 ofrockfish. 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 oflcy Strait. This is not true. No purse seining occurs to the north oflcy 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 fish~ry somewhere, sometime during its life cycle. The 34 EA's apparent bias opposing any harvest of fish 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 100 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 thatthe 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 biomas.s 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. platyceros). There is very 36 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 ofthe 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 provide justification 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 ifBerners 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 ~s 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 11 park waters 11 , 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 ofthe 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 by catch 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 of lingcod. Transactions ofthe 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 comm~rcial 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 gamer general support fqr 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 ofthe 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 coll1Il1ercial 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 of No-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 garner 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 reserveif 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 defme 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-authorsthemselves acknowledge the weakness of their advocacy for a reserve intheir 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 ofthe 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 ex:ample, 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 futll!e 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 commercial fishing on marine birds are not believed to be substantial; continued commercial 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 ~eabirds, waterfowl, shorebirds and bald eagles . . . " If as they say there is no 42 substantial effect hy 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: Thls 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 ~egulatory 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 corrimercial 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. 16653 (December 29, 1966) · (codified at 36 C.F.R. 2.13G)(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 ofPacific 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 ANJLCA 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 commercial 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 i~ Glacier Bay. NPS' acknowledgment of this error would be appropri_ate 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/akpages/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 ofFish and Game was formed. Alaska law states: "The Commissioner shall manage, protect, maintain, improve, and extend the fish, game and aquatic plant resources ofthe 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 of Fish 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 Treaty: 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-Incidental NA NA Immediate closure NA Immediate closure 'Immediate closure NA Immediate closure Immediate closure Previously closed Previously closed Previously closed NA NA GJac1er 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 Previously closed Previously closed Previously closed NA NA Immediate Closure Immediate Closure Immediate Closure Immediate Closure Remainerof 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 v1sitor 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 DEI'AR'IMENT 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, 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 DEP,Lt\TI~ OF FISH AND GM-IE AGREES: ·' 1. 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 speci~a diversitv on Service lands, re~ognizing that noncons~ntive ~s~~ appreciation by the visiting public is a pr~wa:~ consideration. 3. To consult with the Regional Director or his representative in a timelv 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 management of subsistence uses of fish and vildlife 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 continuation of the natural process of biological succession" and "to main- tain che environmental integ~ity of the natural features found in them." THE NATIONAL PARK SERVICE AGREES: 1. To recognize the Depar~ment as the agency with the primary responsibility to· manage fish and resident 'W'ildlife 'W'ithin the State of Alaska. 2. To recognize the right of the Dep-artment to enter on~o Service lands after ~imely notification to conduct routine management activities which do not involve construction, disturbance to the land·, or alterations of ecosys~ems. 3. To manage the fish and w~ldlife habitat on Service lands so as to ensure conservation of fish and 'W'ildlife populations and their habitats in their natural diversity. 4. To cooperate with the Department in planning for management activities on Service lands which require permits, environmental assessments, compatibilit .assessments, or similar regulatory documen~s by responding to the Department: in a timely manner. 5. To consider carefully the impact on the State of Alaska of proposed treatie~ or international agreements relating to fish and vildlife resources which could diminish the jurisdic~ional authority of the State, and to consult freely with the State when such treaties or agreements have a significan.t impact on the State. 1· I '6~ to review Service policies in consultation with the Depar~men~ to deter- mine if modified or special policies are needed for Alaska. 7. '!o adopt Park and Preserve'managemen~ 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. To 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 res.ponsible for policy development and management direction relating to subsistence uses of fish and wildlife resourc,es on State and Service lands, pursuant to applicable State and Federal laws. • I 10. To 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 special use permit the erection and maintenance of facilitie Qr structures needed to further fish and wildlife 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. ·q:.. ,• > October 20, 1999 > For Immediate Release > Contact: Rick Jones > (907) 697-2691 > > Glacier Bay National Park Commercial Fishing > Eligibility Regulations Published Today > > The National Park Service has published final regulations regarding > several aspects of commercial fishing in Glacier Bay National Park and > Preserve. The regulations in today's Federal Register represent a > major step towards a comprehensive resolution of commercial fishing > issues in the park. The regulations implement provisions in > legislation passed by Congress in 1998 by: > > · Limiting commercial fishing in Glacier Bay proper to three specific > commercial fisheries. > · Establishing a "grandfathering" process to allow qualifying > fishermen in the three authorized commercial fisheries to continue > fishing in the remaining waters of Glacier Bay proper under > nontransferable lifetime permits. > ·Clarifying that the marine waters of Glacier Bay National Park > outside of Glacier Bay proper will remain open to various existing > commercial fisheries. > > Beginning October 1, 2000, a lifetime permit will be needed in > order to fish commercially in Glacier Bay proper. To qualify, > fishermen must be able to document that they have fished in Glacier > Bay proper in one of the three authorized commercial fisheries as > follows: For the halibut fishery, two years of participation are > required in Glacier Bay proper during the seven-year period, 1992 > through 1998. For the salmon and Tanner crab fisheries, three years of > participation are required in Glacier Bay proper during the 1 0-year > period, 1989 through 1998. > > The rule also closes certain inlets and areas, in the upper reaches > of Glacier Bay proper, to commercial fishing and limits certain other > areas to winter season trolling for king salmon by qualifying > fishermen. About 18% of the park's marine waters are closed to > commercial fishing by the 1998 law and this rule; these closed waters > have historically accounted for less than 10% of the total commercial > harvest in the park. > ,~.: ·,' > "The publication of these regulations will bring certainty for > fishermen and others who have a deep interest in Glacier Bay. These > eligibility rules will also let us move forward on determining who > among the fishermen are eligible for compensation under both the 1998 > law and the more recent amendments," said Glacier Bay National Park > Superintendent Tomie Lee. > > The regulation is available in today's Federal Register, Volume 64, > Number 202, pages 56455-56464 or at the GPO web site at > www.access.gpo.gov. Copies are also available by calling the park at > 907-697-2232, or by writing to Glacier Bay National Park, P.O. Box > 140, Gustavus, AK 99826-0140. > > --NPS -- "'~~ w.!... ...;.---·---.,... .---~~~-=r · ~ ~· ·· ... '· . - ... } . ·'II,,-- • ! . ~ ' ---_. • I . ' ~~.J , I .__ I .. I L_ ..... \ ~ -. _ __; I·-__,. '1. ... t '.: .. -·! ...... :~ OFFICE OF THE GOVERNOR OFFICE OF MANAGEMENT AND BUDGET DIVISION OF GOVERNMI=NTAL COORDINATION· rl SOUTHCENTRAL REGiONAL OFFICE 3601 •c• STREET, SUITE 370 ANCHORAGE, ALASKA 99503-5930 PH: (907} 269-7470/FAX: (907} 561-6134 September 16, 1999 Ms. Tomie Lee 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 99826 Dear Ms. Lee: TONY KNOWLES, GOVERNOR ' ------__...------ ------- [J PIPELINE COORDINATOR'S OFFICE 411 WEST 4TH AVENUE, SUITE2C ANCHORAGE, ALASKA 99501-2343 -PH: (907) 271-4317/FAX: (907) 272-0690 The State of Alaska has reviewed the proposed Commercial Fishing Regulations for Glacier Bay National Park at 36 CFR Part 13, published in the Federal Register on August 2, 1999. These National Park Service regulations implement the Omnibus Act of FY 1999 as amended by Congress on May 21, 1999. The letter represents the consolidated views of the state resource agencies. We appreciate that the preferred alternative in these reissued draft regulations allows some additional opportunities for continued commercial fishing within Glacier Bay than the April 1997 draft regulations. In addition, the Service and the State are making progress toward the development of a successful cooperative relationship. Nonetheless, we have several significant concerns with these regulations that should be addressed as soon as possible. We hope that finalization and implementation of these regulations will be as satisfactory as the Service's implementation of the Dungeness crab compensation program. Issues covered in this letter: • Inadequate public comment peP.od • . Unnecessarily restrictive criteria for lifetime permits • No apparent justification for the renewable five-year special use permit • Failure to meet the requirements of the Regulatory Flexibility Act • Inappropriate implied assertions of jurisdiction over commercial fishing Page 1 01-A3SLH =:;; p:mted on recycted paper D y G-.0· Inadequate Public Comment Period Proviq~g only 45 days for review by fishermen, communities, businesses, and others who are directly ana-significantly impacted by the rulemaking is unreasonable. In Alaska, federal agencies normally provide 90 days for review of major proposals due to the difficulties in reaching the affected public. Forcing a short review period in an effort to meet an arbitrary schedule is not in the agency's or public's interest. In addition, the Service's direct mail notice to the affected public was delayed three weeks. Thus those without internet Federal.Register access received copies with only about 3 weeks remaining to comment by the deadline. · The brief comment period also occurs during the least convenient time for fishermen. Those who are directly impacted by these regulations do not have the economic option to stop fishing and comment on them, thus putting fishermen at an extreme disadvantage. In addition, many fishermen were unaware of the publication and had no means to receive it until returning home. We request that the comment period be extended for at least 45 additional days. We also request the Service extend the period for preparation of the final regulations. The 10 working days currently scheduled between the comment period and publication of the fmal rule is inadequate to fully review, consider, and address the substantive comments received. The current schedule gives the impression that Interior has made fmal decisions without considering public comment. Unnecessarily restrictive criteria for lifetime permits We request the proposed eligibility criteria in 36 CFR Part 13.65(a)(5)(iii) Obtaining a special use permit (B) be revised to allow anyone who currently owns a permit for Tanner crab, halibut, ' or troll salmon, and anyone who has any documented history of fishing in the Bay, to continue under the lifetime permit. In our February 1, 1999 review of the Environmental Assessment and 1997 proposed rulemaking, we detailed why all persons who had participated in these fisheries should be grandfathered during this phase-out period. The Omnibus Act of 1999 as amended allows continuation of longlining for halibut, pot or ring net fishing for Tanner crab, and trolling for salmon in the Bay proper. These commercial fisheries are already managed under limited entry provisions and conservative management plans adopted by the state and North Pacific Halibut Commission. The resources are healthy. The net effect of issuing lifetime permits under this criteria will be a gradual reduction in the current level of use as fishermen retire. Further restrictions on the eligibility of those who have participated in these fisheries are unnecessary. Renewable Five-year Special Use Permits are Unnecessary· Fishermen should not have to renew a permit every five years if they have already applied for and been granted a lifetime special use permit for access to commercial fish in the Bay. We therefore request 13.65(a)(5)(v) be deleted. As an alternative, the Service could require notification when the lifetime permit holder retires from the fishery to maintain an active list of eligible fishermen. Page2 •" • I Failure to Meet Requirements of the Regulatory Flexibility Act We request preparation of an environmental impact statement with a thorough economic analysis of impacts to affected local communities and small businesses. In the 1998 Environmental Assessment (EA) accompanying the original proposed rulemaking, the National Park Service failed to fully study the economic impacts to the small businesses and communities affected by the closure of Glacier Bay waters to commercial fishing. Instead, the EA baldly stated~atthe. closures would have no significant impacts. The Small Business Administration was vecy critical of this arbitrary determination and concluded that "NPS must prepare an IRF A if it intends to abide by the requirements of the RF A" (SBA correspondence to the Glacier Bay- superintendent February 1, 1999). For the Service to imply that they do not have to do an IRFA because the. proposed rule has an impact of less than $100 million is unreasonable in this context. The proposed rule's statement that the compensation package will mitigate these impacts is an incomplete assessment. In fact, the compensation package can itself create negative impacts if fishermen, business oWn.ers, and others, once compensated, decide to permanently leave the regi_on. The long-term economic and social impacts must be better understood and evaluated. Inappropriate Implied Assertions of Jurisdiction over Commercial Fishing In the final rule, we request the Service accurately reflect Congress' stated intent that it cooperate in the state fisheries management planning process as the appropriate mechanism for managing the remaining fisheries. The summary and preamble discussion of comments that accompany .the August 2, 1999 proposed rule incorrectly paraphrase provisions for continuation of commercial fisheries contained in the FY 1999 Act as amended. The record should clearly reflect the fact · that Congress has not provided the Service with any jurisdictioJ?-over the remaining Glacier Bay fisheries. Neither did Congress imply that the Service could unilaterally restrict the fisheries. Congress clearly states that certain fisheries will continue and directs the Service to cooperate in the development of plans that are adopted by the state for the management of those fisheries. Congress does not suggest that commercial fisheries will only be continued if the state and the Service adopt a cooperative management plan, as stated at the end of the summary. Thank you for the opportunity to provide these comments. We look forward to continued dialogue on these regulations and other aspects of the Congressional Glacier Bay resolution. cc: John Katz, Governor's Office, Washington, D.C. Frank Rue, Commissioner, Department ofFish and Game John Shively, Commissioner, Department of Natural Resources Page3 bee: Pat Galvin, DGC-Jun Tina Cunning, DFG-Anch Terry Haynes, DFG-Fbx Dick Hofinann, DFG-Jun Patty Bielawski, DNR-Anch Elizabeth Barry, AG's-Anch Kathy Swiderski, AG's-Anch Anna Kerttula, Gov's Office-WDC ... . ' ~ ., Page4 ·. Federal Register /Vol. 64, No. 202 /Wednesday, October 20, 1999 I Rules and Regulations 56455 -How do you value gas in an index zone using the index-based formula? -How do you value gas not in an index zone? -How do you make a dual accounting election? -What are the changes to transportation and processing allowances? MMS is offering these training sessions at no cost to oil and gas industry representatives and members of the public who have an interest in the valuation of gas produced from Indian lands. You must make your own travel and hotel reservations for the training. MMS will not reserve blocks of rooms. If you plan to attend training, please register for the session by calling or sending a fax to Vicki Skinner at the telephone or fax numbers in the FOR FURTHER INFORMATION CONTACT section of this notice. Seating is limited, and we need to know the number in your party. joan Killgore, Acting Associate Director for Royalty Management. [FRDoc. 99-27311 Filed 10-19-99; 8:45am] BILLING CODE 431D-MR-P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 RIN 1 024-AB99 Glacier Bay National Park, AK; Commercial Fishing Regulations AGENCY: National Park Service (NPS), Interior. ACTION: Final rule. SUMMARY: This final rule represents a major step towards a comprehensive resolution of commercial fishing issues in Glacier Bay National Park. In accordance with the provisions of Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 (Section 123), as amended, the rule establishes special regulations for commercial fishing in the marine waters of Glacier Bay National Park. The rule implements provisions in Section 123 by: closing specifically identified areas of non-wilderness waters in Glacier Bay proper and all wilderness waters within Glacier Bay National Park to commercial fishing; limiting commercial fishing in Glacier Bay proper to three specific commercial fisheries; establishing a "grandfathering" process to allow qualifying fishermen in the three authorized commercial fisheries to continue fishing in the remaining waters of Glacier Bay proper under nontransferable lifetime permits; and, clarifying that' the marine waters of Glacier Bay National Park outside of Glacier Bay proper will remain open to various existing commercial fisheries. Section 123 also directs that authorized commercial fisheries be managed in accordance with a cooperatively developed state/federal fisheries management plan. The cooperative state/federal fisheries management plan is being developed independent of this rule and will be announced at a later date. DATES: This rule is effective on October 20, 1999, with the exception of paragraphs (a) (10) (i)-(iii) which take effect on January 1, 2000. ADDRESSES: Tomie Lee, Superintendent, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. E-mail address is glba- administration@nps.gov. FOR FURTHER INFORMATION CONTACT: Tomie Lee, Superintendent, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska, 99827, Phone (907) 697-2230; fax (907) 697-2654. SUPPLEMENTARY INFORMATION: Background The background section in the re- proposed rule of August 2, 1999 (64 FR 41854), includes a comprehensive chronology of Glacier Bay's commercial fishing history that outlines the circumstances and events leading to this final rule. That information is unchanged and has continuing applicability. The National Park Service (NPS) wishes to note that numerous extensions to the public comment period on the 1997 proposed rule afforded the public a prior opportunity to comment on Section 123 (see e.g., 63 FR 68655, December 11, 1998; 64 FR 1573, January 11, 1999). There- proposed rule was published, in part, to fulfill the requirement of Section 123, as amended by Pub. L. 106-31 (May 21, 1999), which directed the Secretary of the Interior to re-publish the rule and provide an opportunity for the public to comment for not less than 45 days. To comply with Section 123, the rule, in part, amends the general regulatory prohibition on commercial fishing activities in units of the National Park System, and authorizes various existing commercial fisheries to continue in most marine waters of Glacier Bay National Park subject to a cooperatively developed state/federal fisheries management plan. The other provisions of the rule also conform to the requirements of Section 123. The rule limits commercial fisheries in Glacier Bay proper to pot and ring net fishing for Tanner crab, longlining for halibut, and trolling for salmon. The rule describes eligibility criteria that allow certain fishermen with a sufficient, recent, reoccurring history of participation in Glacier Bay proper fisheries to continue fishing in Glacier Bay proper for their lifetimes. The final rule adopts October 1, 2000, as the deadline to apply for a lifetime permit. Beginning October 1, 2000, a lifetime permit is needed in order to fish in Glacier Bay proper. To qualify, fishermen must be able to document that they have fished in Glacier Bay proper in one of the three authorized commercial fisheries as follows: For the halibut fishery, 2 years of participation are required in Glacier Bay proper during the 7 -year period, 1992 through 1998. For the salmon and Tanner crab fisheries, 3 years of participation are required in Glacier Bay proper during the 10-year period, 1989 through 1998. The 7 -year qualifying period for halibut is based, in large part, on the establishment of a statistical sub-area for Glacier Bay proper in 1992. Use ofthis qualifying period specific to this sub- area will assist fishermen in documenting, and NPS in identifying, a history of fishing within Glacier Bay proper. A 10-year qualifying period is used for the Tanner crab and salmon fisheries. These qualifying periods (of 7 and 10 years, respectively) are intended to provide a better opportunity for fishermen with a variable but reoccurring history of participation in these fisheries, in Glacier Bay proper, to qualify for the lifetime access permits. Essentially, these criteria require fishermen to have fished in Glacier Bay proper for approximately 30% of the years during the 7 and 1 0-year base periods to qualify for lifetime access to an authorized fishery. The rule also describes the application requirements and procedures for fishermen to follow to apply for a lifetime access permit for an authorized fishery in Glacier Bay proper. The rule requires that applicants: demonstrate that they hold a valid state limited entry commercial fishing permit, and for halibut an International Pacific Halibut Commission quota share, for the fishery in Glacier Bay proper; provide a sworn and notarized affidavit attesting to their history and participation in the fishery within Glacier Bay proper; and, provide other documentation that corroborates their participation in the fishery in Glacier Bay proper during the qualifying years. The rule requires applicants to 56456 Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations provide two types of corroborating documentation readily available from the State of Alaska: permit histories; and, landing reports. The permit history documents the length of time an applicant has been a permit holder in a fishery, and the landing report documents the time and location of the applicant's fishery landings. The application requirements for a lifetime commercial fishing access permit in Glacier Bay (i.e., a copy of the valid permit(s) and quota share(s), affidavit, permit history and landing report) are less demanding than that typically required by the State of Alaska or National Marine Fisheries Service (for halibut) for similar limited entry programs. The rule encourages applicants to submit other forms of corroborating documentation-for example, vessel logbooks or affidavits from other fishermen or processors-to assist in the establishment of their history of participation in a particular fishery in Glacier Bay proper. NPS recognizes the limitations of landing report data based on fish tickets. Although Alaska statute requires accurate reporting of fish harvest information by statistical area, fishermen often lump together catches from Glacier Bay proper and Icy Strait statistical areas, and report them as Icy Strait landings on their fish tickets. Moreover, no statistical reporting area exists for salmon that is specific to Glacier Bay proper. Because of this, for the salmon fishery, NPS will consider landing reports from District 114 (all of Icy Strait from Cross Sound to the Lynn Canal, including Glacier, Dundas and Taylor Bays and Excursion Inlet) as indirect evidence of participation in the fishery in Glacier Bay proper; this indirect evidence, however, must be supported by additional documentation that supports applicants' declaration of Glacier Bay proper salmon landings (such as affidavits from crewmembers, other fishermen, processors or logbooks or other corroborating documentation). Salmon fishermen who can document more than incidental use of District 114 should submit that documentation as it may bolster other evidence of their landings from the Glacier Bay proper fishery. Both the halibut fishery (Regulatory Sub-area 184) and the Tanner crab fishery (Statistical areas 114-70 through 114-77) have reporting areas specific to Glacier Bay proper. Therefore, applicants who wish to rely on landing data from areas outside, but immediately adjacent to, Glacier Bay proper must submit convincing corroborating documentation (such as affidavits from crewmembers, other fishermen, processors or log books) in addition to their personal affidavit that a portion of their catch was landed in Glacier Bay proper. Landing reports for halibut and Tanner crab must, at the very least, be from the reporting area immediately adjacent to Glacier Bay proper to be considered. In the case of halibut, this is Regulatory Sub-area 182; in the case of Tanner crab, this is Statistical area 114-23. These requirements are intended to address . concerns regarding the difficulty of attributing harvest to Glacier Bay proper from landing reports, most particularly for the salmon troll fishery. NPS intends to work closely with the Alaska Commercial Fisheries Entry Commission, the National Marine Fisheries Service and other knowledgeable sources to identify permit owners who meet the eligibility criteria defined for the authorized commercial fisheries in Glacier Bay proper. The rule also closes certain inlets and areas, in the upper reaches of Glacier Bay proper, to commercial fishing and limits certain other areas to winter season trolling for king salmon by qualifying fishermen. There are a number of species-specific closure dates in Section 123, and the effective date of paragraph (a)(lO)(i)-(iii) is delayed until January 1, 2000, to comply with the statute. The rule reaffirms closure of all designated wilderness areas in Glacier Bay National Park to commercial fishing activities. By authorizing existing commercial fisheries to continue in park waters outside of Glacier Bay proper, Section 123 and the rule permit fishing to continue where more than 80% of the commercial harvest (reported biomass) has historically occurred. Additional harvest will continue in most of Glacier Bay proper during the life tenancy period of qualifying fishermen, supporting fishermen and their communities for many years. Approximately 18% of the park's marine waters are closed to commercial fishing by Section 123 and this rule; these closed waters have historically accounted for less than 1 0% of the total commercial harvest in the park. Nothing in the rule is intended to modify or restrict non-commercial fishing activities otherwise authorized under federal and non-conflicting state fishing regulations, nor to affect legislatively authorized commercial fishing activities within Glacier Bay National Preserve. Analysis of Public Comments Due to the enactment of Section 123 (on October 21, 1998), NPS reopened and extended the comment period on the 1997 proposed rule and the accompanying Environmental Assessment (63 FR 68665, December 11, 1998; 64 FR 1573, January 11, 1999). NPS also mailed a copy of the Federal Register Notice of extension to persons and organizations that had previously submitted comments and invited them to provide additional comments in light of the new legislation. The analysis of public comment section in the re- proposed rule of August 2, 1999 (64 FR 41854), includes a comprehensive analysis of 1,557 comments submitted in response to the proposed rule and the enactment of Section 123. That information has continuing applicability and supplements this analysis. Overview of Public Comments The public comment period on the re- proposed rule for commercial fishing in Glacier Bay National Park was open from August 2 to September 16, 1999, and specifically sought input on the re- proposed eligibility criteria and application requirements for lifetime permits for authorized fisheries in Glacier Bay proper. NPS received 96 written comments, in the form of surface mail, faxes and electronic mail. NPS reviewed and considered all public comments submitted on the re-proposed rule. A summary of substantive comments is outlined below. Thirty-seven percent of the comments received specifically stated support for some form of commercial fishing phase out in Glacier Bay National Park. Twenty-two percent specifically stated support for the continuation of commercial fishing. Of all the responses received, 59% specifically commented on the eligibility criteria for commercial fishing lifetime access permits. Among those, more than half (54%) supported less stringent eligibility criteria than that stated in the re-proposed rule. The remaining comments on eligibility (46%) supported the eligibility criteria as a minimum standard, including 30% who sought more stringent eligibility criteria. Comments ranged from suggestions for more relaxed criteria for lifetime permits, such as one year of fishing during the eligibility period, to calls for the stronger criteria as proposed in 1997. Twenty-two percent of all respondents commented specifically on the application process for commercial fishing lifetime access permits. Of those, 67% supported a less stringent process than that stated in the re-proposed rule. Thirty-four percent supported the process, as the minimum standard that the NPS should set for application Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations 56457 approval, 20% of which sought a more stringent process. General Comments Collectively, there were a number of comments and objections concerning various parts of the rule that, in fact, are derived directly from the statute. For example, a number of commenters requested that public comment be extended. Section 123 established a publication date of September 30, 1999, and NPS has used its best efforts to publish on that date; that necessarily affects the timing and length of the latest public comment period. It should also be noted that NPS has been actively seeking public comment for several years (as summarized at 64 FR 41856- 8, August 2, 1999). Section 123 also requires that a "sworn and notarized affidavit be submitted," notjust licenses and fish tickets (landing receipts). Section 123 authorized lifetime permits for those holding "a valid commercial fishing permit" who otherwise qualify, not boat owners or deckhands. On this point, however, NPS notes that Section 123, as amended, provides $23 million to compensate "fish processors, fishing vessel crewmembers, communities and others negatively affected by the restrictions on commercial fishing in Glacier Bay National Park." One commenter (who will certainly qualify for a lifetime permit) felt he was "singled-out" because, unlike most other limited entry permit holders, he likes to longline in the west arm of the bay above 58°50' N latitude. Numerous commenters stated that commercial fishing was inappropriate in Glacier Bay and other national parks. NPS has considered these comments, but NPS must follow the statute. NPS also received many comments on related subjects that were, however, outside of the limited scope of this rule. Regulatory Flexibility Analysis NPS received a number of comments on the initial regulatory flexibility analysis. Those comments are discussed below in the summary of the final regulatory flexibility analysis that NPS has prepared as required by 5 U.S.C. 604. Rationale for the Qualifying Period A number of commenters questioned whether NPS had done enough to explain the method used to determine the necessary number of years in a given base year period to qualify for lifetime access to fish under the rule. One commenter felt that the NPS effort to "mirror similar lengths of time that have been allowed in other state and federal limited entry programs" was misplaced because "those programs were influenced by conservation concerns." Other commenters, however, cited conservation concerns and the Glacier Bay 1996 Vessel Management Plan regulations which limits the amount of motor vessel traffic allocated to park visitors (61 FR 27008, May 30, 1996), to push for a shorter, more stringent phase out of commercial fishing. In the 1997 proposed rule, NPS proposed a longer history of participation in each fishery to prevent what the Wilderness Society now critically points out is possible: that people who started fishing after the 1991 rulemaking proposed to phase out all commercial fishing in seven years would be eligible for grandfather status to fish in Glacier Bay. However, even in that proposal, NPS recognized the need for some flexibility to ensure fairness to fishermen with a variable but recurring history of participation in Glacier Bay fisheries. Ultimately, and with public comment sharply divided, NPS selected shorter requirements for participation in the fishery in the qualifying base year periods (3 years in a 10-year base for salmon and Tanner crab fisheries, and 2 years in a 7 -year base for halibut fisheries) to meet that objective. As a result, fishermen are required to show they have fished in Glacier Bay proper for approximately 30% of the years during the 7 and 10-year base periods to qualify. Resolving the commercial fishing issue in Glacier Bay has been a long and contentious process (see 64 FR 41856-9, August 2, 1999). Section 123 now directs NPS to decide who qualifies for lifetime access and who does not; NPS has drawn the line where it thinks it is fair, recognizing that it will not please everyone. Cooperative Development of the Management Plan Several commenters questioned the role that NPS and the State of Alaska will play in the cooperatively developed management plan required by Section 123. The plan will guide the regulation of the existing authorized fisheries at Glacier Bay National Park. One commenter stated that it was an "oversimplification" for NPS to state that the State manages fisheries to maintain sustained yield. In response, NPS notes that the Alaska State Constitution states: "Fish * * * and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principal, subject to preference among beneficial uses." I d. at Article VIII, Section 4. Another commenter questioned what NPS considers as park values and purposes, and many commenters questioned how NPS would protect the park's resources. After reviewing the re-proposed rule, NPS agrees that some clarification is necessary. Section 123 clearly states: ''the management plan shall provide for commercial fishing in the marine waters within Glacier Bay National Park * * * and shall provide for the protection of park values and purposes. * * *" Id. Park values and purposes are identified in 16 U.S.C. 1, as amended, and are further defined by the enabling legislation and legislative history of Glacier Bay National Park. As a result, the cooperatively developed management plan must consider and respect the NPS mission in Glacier Bay National Park as defined and directed by Congress. Section 123 also requires the management plan to prohibit any new or expanded fisheries, and provide for the opportunity for the study of marine resources. Therefore, a legislatively- mandated component of the cooperative management plan is the accommodation of scientific study. Section 123 does not require that all federal and federally- approved research within the park fall under the plan. The final rule also contains a provision that directs the superintendent to compile a list of existing fisheries and gear types used in the outer waters. NPS will work with the State, outer water fishermen and the public to cooperatively develop this list. However, should new or expanded fishing activities threaten park resources during development of the cooperative plan, the superintendent may implement an interim list. Section 123 provides both a requirement and an opportunity for ongoing cooperation and collaboration between the State and federal government in the implementation of a jointly-developed fisheries management plan. NPS will work together with the State to provide the public with an opportunity to participate in the development of the cooperative management plan, independent of this rulemaking. NPS believes that the best long-term remedy for this jurisdictional issue is an effective State/federal cooperative relationship that: outlines and respects individual and collective agency roles and responsibilities; keeps lines of communication open; incorporates opportunities for public involvement in decision-making processes; and, ultimately, serves to implement the letter and spirit of the Section 123, as amended. NPS intends to devote its energies towards this goal. 56458 Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations 1996 Vessel Management Plan (VMP) Regulations A comment received from the Alaska Chapter of the Sierra Club stated that commercial fishing boats are not subject to the 1996 VMP regulations (36 CFR 13.65(b)). This assertion, however, is only partially correct; generally the VMP regulations apply to commercial fishing vessels. While commercial fishing vessels were exempted from the entry permit requirements of that rule by§ 13.65(b)(2)(iii)(D), this rule will require such boats to obtain a National Park Service permit to enter the bay, from June 1 through August 31. The Sierra Club comment correctly pointed out that commercial fishing vessels were exempted from the restriction on operating within one-quarter nautical mile of a whale (§ 13.65 (b) (3) (i)). This exemption was made due to the slow speeds and deliberate courses that commercial fishing vessels follow. However, the whale waters restrictions at§ 13.65(b)(iv)(D)(1) apply unless a motor vessel (commercial or sport) is actually fishing (and not simply in transit). Seasonal motor vessel closures are specifically applicable (61 FR 27008, 27013, May 30, 1996). NPS also notes that, regardless of whether an commercial fishing vessel operator possesses a commercial fishing lifetime access permit, the operator of a commercial fishing vessel can apply for a private vessel permit to enter Glacier Bay from June 1 through August 31, or visit Glacier Bay during the balance of the year, provided they follow the regulations that apply to private motor vessels and do not engage in commercial activities. Lifetime permittees are advised that the lifetime permit only allows access for commercial fishing; entering the park for other commercial purposes is prohibited, and entering Glacier Bay for recreation purposes (from June 1 through August 31) requires a private vessel permit. Commercial fishing vessels may, at any time, seek safe harbor in Glacier Bay National Park when faced with hazardous weather or sea conditions, mechanical problems, or other exigent circumstances. Resource Violations One commenter suggested that a commercial fishing lifetime access permit holder who commits a resource violation in the park should have his or her permit revoked. Although NPS believes that most people who will qualify for the permit will respect park resources and regulations, NPS will not hesitate to ask a court to impose access restrictions on a permit holder who is convicted of serious or repeated offenses. NPS will also seek the State's support in including provisions to this effect in the cooperatively developed management plan. NPS believes that such action would be consistent with Congress' direction that the plan "shall provide for the protection of park values and purposes." Section 123(a)(1). Boundaries and Maps NPS will provide detailed maps and charts depicting non-wilderness and wilderness closures to every fisherman who receives a commercial fishing lifetime access permit for one of the three authorized Glacier Bay proper commercial fisheries. Others may contact the superintendent for a map of these closures. Section by Section Analysis The regulations in this section implement the statutory requirements of Section 123 of the Omnibus Emergency and Supplemental Appropriations Act for FY 1999 (Section 123) (Pub. L. 105- 277). as amended by Section 501 of the 1999 Emergency Supplemental Appropriations Act (Pub. L. 1 06-31.) Where possible, the language used in this section of the regulations mirrors the language used in Section 123, as amended. Section 13.65(a)(l) of the regulations provides definitions for the terms "commercial fishing" and "Glacier Bay" and "outer waters." The definition for "commercial fishing" is the same as used for the park's vessel regulations in § 13.65(b) of Title 36 of the Code of Federal Regulations (36 CFR). The terms "Glacier Bay" and "outer waters" are used in these regulations to describe marine water areas of the park that are to be regulated differently under requirements of Section 123. The definition for "Glacier Bay" mirrors the definition for "Glacier Bay Proper" that is provided in Section 123, and is also essentially the same as the definition used in 36 CFR 13.65(b)(1). The term "outer waters" is used to describe all of the marine waters of the park outside of Glacier Bay proper. This includes areas of Icy Straits, Cross Sound, and coastal areas on the Gulf of Alaska running from Cape Spencer to Sea Otter Creek, beyond Cape Fairweather. Section 13.65(a)(2) of the regulations provides authorization for commercial fishing to continue in the non- wilderness marine waters of the park, as specifically provided for by Section 123, as amended. In addition to Glacier Bay, park waters that are affected by Section 123 include all of the "outer waters" of the park outside of Glacier Bay. This authorization for commercial fishing supercedes the general regulatory prohibition on commercial fishing in the park found at 36 CFR 2.3(d)(4). The authorization, however, does not supercede other NPS regulations or exempt commercial fishermen or their vessels from any other generally applicable park regulations. Commercial fishing activities are to be conducted and managed in concert with park purposes and values. Paragraph (i) reflects the Section 123 requirement that the State of Alaska and the Secretary of the Interior cooperatively develop a fisheries management plan to guide the regulation of commercial fisheries in the park that will: reflect the requirements of Section 123, other applicable federal and state laws, and international treaties; serve to protect park values and purposes; prohibit new or expanded commercial fisheries; and, provide opportunity for the study of marine resources. Paragraph (ii) clarifies that waters designated as wilderness are closed to commercial fishing and related commercial activities. Paragraph (iii) has been added to address the Section 123 prohibition on any new or expanded fisheries and provides a mechanism for future implementation of that prohibition. Paragraph (iv) informs the public that maps and charts of the affected waters available from the superintendent. Section 13.65(a)(3) of the regulation implements Section 123 requirements that the commercial fisheries in Glacier Bay are limited to longlining for halibut, pot or ring net fishing for Tanner crab, and trolling for salmon. These are the only commercial fisheries authorized to continue in Glacier Bay. Paragraph (ii) limits participation in the authorized commercial fisheries in Glacier Bay to individuals who have a non-transferable commercial fishing lifetime access permit issued by the superintendent. The requirement for this lifetime access permit will not go into effect until October 1, 2000. The delayed implementation date (the re-proposed rule would have adopted January 1, 2000, as the implementation date) is intended to allow sufficient time for fishermen to apply for, and receive, their access permits before the permit requirement takes effect. Fishermen are strongly advised to apply well before the October 1, 2000, deadline to ensure that their application is processed and approved by that date. This section also makes clear that the permits are non- transferable-reflecting the language and requirements of Section 123. However, if a temporary emergency transfer of a permit is approved by the Commercial Fisheries Entry .. .. Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations 56459 Commission (CFEC) due to illness or disability of a temporary, unexpected and unforeseen nature, NPS will also consider issuing a temporary lifetime access permit transfer for the period (generally, one year or less). In response to public comment, paragraph (iii) has been added to better protect park resources. This paragraph also provides a mechanism for future implementation of the cooperatively developed management plan. Section 13.65(a) (4) of this regulation restates the Section 123 requirement that an applicant must possess a valid State limited entry commercial fishing permit for the district or statistical area encompassing Glacier Bay, for each fishery for which a lifetime access permit is being sought. Paragraph (ii) outlines the specific eligibility requirements that must be met to obtain a lifetime access permit for an authorized fishery in Glacier Bay. An applicant must have participated as a limited entry permit holder for the minimum number of years in the established base years period, and in the district or statistical area encompassing Glacier Bay, for each authorized fishery, for each fishery for which a lifetime access permit is being sought. These eligibility criteria have undergone a Regulatory Flexibility Act analysis, and have been determined to meet the goals of this regulation, while seeking to minimize impacts to commercial fishermen and other affected small businesses to the extent consistent with Section 123, as amended. A 12-month application period to obtain a lifetime access permit is described; conclusion of the eligibility determinations by October 1, 2000, may be important to ensure completion of the $23 million compensation program authorized by Congress in the 1999 amendment to Section 123. Section 13.65(a)(5) outlines the specific type of documentation that an applicant must provide to the superintendent to obtain a lifetime access permit. Section 123 requires fishermen to provide a sworn and notarized personal affidavit attesting to their history of participation as a limited entry permit holder within Glacier Bay, during the qualifying period, for each fishery for which a lifetime access permit is being sought. NPS will provide a simple affidavit form to applicants upon request. Section 123 also requires applicants to provide other documentation that corroborates their history of participation in the fishery, and a copy of their current State of Alaska limited entry permit (and in the case of halibut, an International Pacific Halibut Commission quota share) that is valid for the area that includes Glacier Bay for each fishery for which a lifetime access permit is sought. Licensing and landing histories-two types of readily available corroborating documentation-are required by this regulation. A certified printout of an applicant's licensing history in a fishery is available at no charge from the CFEC. The licensing history corroborates participation in the fishery during the qualifying years. Landing reports, documenting an applicant's harvest activities in a specific commercial fishery by year and location, are available at no charge from the Alaska Department of Fish and Game (ADFG). A form is required from ADFG to obtain this information. NPS is aware of the limitations of some landing data. There is, for example, no separate statistical reporting unit for Glacier Bay for salmon trolling. Accordingly, the superintendent will consider salmon landing reports for District 114 as indirect evidence of participation in the Glacier Bay fishery, provided that such reports are supported by additional corroborating documentation of Glacier Bay landings. For the halibut and Tanner crab fisheries, because specific reporting areas are described for Glacier Bay, the superintendent may consider landing data from a unit or area immediately adjacent to Glacier Bay when additional and convincing corroborating documentation of landings in Glacier Bay is included. Landing reports must be for the reporting area immediately adjacent to Glacier Bay to be considered. Section 13.65 (a) (6) establishes October 1, 2000, as the deadline to apply for a commercial fishing lifetime access permit. This section also publishes the address where applications must be sent. Fishermen are strongly advised to apply well before the October 1, 2000, deadline to ensure their application is processed and approved by that date. Section 13.65(a)(7) clarifies that the superintendent will make a written determination and provide a copy to the applicant. Applicants will be afforded an opportunity to provide additional information, if it is required. NPS anticipates that it could take 45 days or more to process and respond to an application, depending on the volume and completeness of the applications received. For this reason, applicants are strongly advised to apply well before the October 1, 2000, deadline, or at least 45 days in advance of anticipated fishing activities in Glacier Bay if that date is sooner. Subsection 13.65(a)(8) describes the appeal procedures for an applicant to follow if the superintendent finds the applicant to be ineligible. These procedures are similar to those in place for other NPS permit programs in Alaska. Subsection 13.65(a)(9) makes clear that the lifetime access permits to the Glacier Bay proper commercial fisheries are renewable for the lifetime of an access permit holder, provided they continue to hold a valid commercial fishing permit and are otherwise eligible to participate in the fishery under federal and State laws. NPS expects to reissue the lifetime access permits on a five-year cycle. This will provide an opportunity for NPS to occasionally update the list of fishermen authorized to commercial fish in Glacier Bay. NPS will not charge a fee for these permits. Access permits will not be required for commercial fisheries authorized in the marine waters of the park outside Glacier Bay. Section 13.65(a)(10), paragraphs (i)- (iii) describe several non-wilderness inlets within Glacier Bay that Section 123 closed to commercial fishing. The 1999 amendments to Section 123 delay implementation of these non-wilderness closures during the 1999 fishing season for the commercial halibut and salmon troll fisheries. The rule, therefore, delays the effective date of these three paragraphs until December 31, 1999, to accommodate the provisions of the Section 123 amendments. Wilderness areas, however, remained closed to all commercial fishing under the 1999 amendments, with no delay in implementation; these closures were put into effect by NPS on June 15, 1999. NPS will provide detailed maps and charts depicting these non-wilderness and wilderness closures to fisherman who receive a lifetime access permit for an authorized Glacier Bay proper commercial fishery. Paragraph (i) implements the closure of Tarr Inlet, Johns Hopkins Inlet, Reid Inlet, and Geike Inlet to all commercial fisheries. These closures include the entirety of each of these inlets, as depicted on the maps and charts available from the superintendent. Paragraph (ii) describes the general closure of the west arm of Glacier Bay to commercial fishing, with the exception of trolling for king salmon by authorized commercial salmon fishermen during the State's winter season troll fishery (as per Section 123). Paragraph (iii) describes the general closure of the east arm of Glacier Bay north of a line drawn across the mouth of the arm from Point Caroline through the southern point of Garforth Island to the east shore mainland, with a similar exception that allows authorized salmon fishermen to troll for king salmon 56460 Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations during the State's winter troll fishery "south of a line drawn across Muir Inlet at the southernmost point of Adams Inlet." Section 123(a)(4). This line is described in this subsection as 58°50'N latitude, a description more readily understood by commercial fishermen. Drafting Information: The primary authors of this rule are Randy King, Chief Ranger, Mary Beth Moss, Chief of Resource Management, and Chad Soiseth, Aquatic Biologist, Glacier Bay National Park and Preserve; and Donald J. Barry, Assistant Secretary of the Interior for Fish and Wildlife and Parks. Other key contributors include Molly Ross, Special Assistant to the Assistant Secretary for Fish and Wildlife and Parks; Marvin Jensen and John Hiscock of the National Park Service. Paul Hunter, National Park Service Alaska Support Office; and Russel J. Wilson, Denali National Park and Preserve also contributed. The regulatory language of the re- proposed rule has been converted to the question and answer format in accordance with the Department of the Interior, Office of Regulatory Affairs, policy on Plain Language. No substantive changes to the proposed language have been made. Compliance with Other Laws Regulatory Flexibility Act Under the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq., the NPS has determined that this rule will have a significant impact on a substantial number of small business entities. The NPS has summarized the final regulatory flexibility analysis on the expected impact of this rule on those small business entities as follows. (1) This Rule is published in accordance with the provisions of Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 (Section 123), as amended. The rule establishes special regulations for commercial fishing in the marine waters of Glacier Bay National Park. The rule implements provisions in Section 123 by: • Closing specifically identified areas of non-wilderness waters in Glacier Bay proper and all wilderness waters within Glacier Bay National Park to commercial fishing. • Limiting commercial fishing in Glacier Bay proper to three specific commercial fisheries. • Establishing a "grandfathering" process to allow qualifying fishermen in the three authorized commercial fisheries to continue fishing in the remaining waters of Glacier Bay proper under nontransferable lifetime permits. • Clarifying that the marine waters of Glacier Bay National Park outside of Glacier Bay proper will remain open to various existing commercial fisheries. (2) The following is a summary of the comments relating to the initial Regulatory Flexibility Analysis and the NPS assessment and response. Several commenters challenged the NPS analysis of the impact the rule would have on small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). One commentator specifically contended that NPS was incorrect in certifying that the rule did not have a significant economic impact on a substantial number of small entities, and should therefore have conducted the analysis required under the Regulatory Flexibility Act. NPS would like to point out that for the August 2, 1999 re-proposed rule it did not so certify, and that it did conduct the Regulatory Flexibility Analysis required under 5 U.S. C. 601 et seq. Another commenter asked whether NPS took into account the effects which the rule would have on the value of assets, (e.g., vessels, fishing gear, permits). NPS stated in its economic analysis that it did not account for the effect of the rule on assets. NPS believes that any asset effects will be small for two reasons: (1) the market for used equipment is extensive and the effect of fishing restrictions in one venue (Glacier Bay) on market prices is minimal, and (2) there are opportunities for fishermen displaced to replace significant portions of lost revenues in other fishing venues. Further, Congress has appropriated funds to compensate for estimated economic losses. Since NPS and the State of Alaska have not yet developed the decision rules and eligibility criteria for dispensing these funds, the opportunity to identify effects that warrant compensation still exists. Several commenters argued that the NPS's analysis was flawed, and in particular, that: the analysis did not meet the standards of 5 U.S.C. 601 et seq.; NPS did not reveal the details of its study design; and, NPS failed to use the best scientific data available. NPS consulted extensively with staff at the Small Business Administration regarding the design of the study, and was careful to comply with the standards of 5 U.S.C. 601 et seq. Although NPS did not publish the State of Alaska's Commercial Fisheries Entry Commission (CFEC) data, nor the individual calculations made therefrom, it fully described the nature of these calculations and published the cumulative results. The NPS also used the best scientific data available for its analysis. A few commenters questioned NPS's finding that the rule is not a significant regulatory action for purposes of E.O. 12866 (Regulatory Planning and Review) and 2 U.S.C. 1501 et seq. (Unfunded Mandates Reform Act). In response, NPS notes that we have determined that the rule is significant under E.O. 12866 but not under 2 U.S.C. 1501. The NPS estimated that the present value of the income effects of the rule would be less than $9.2 million. A present value of $9.2 million is equivalent to $276,000 annually, assuming a discount rate of 3% in perpetuity, or $358,000 annually, if the full impact is absorbed over 50 years. NPS used the best scientific data available to arrive at this estimate, and made what it believed to be very conservative assumptions in conducting the analysis. As described in the economic analysis, NPS based its analysis on (1) data collected by the CFEC on harvest sizes and values, location of catch, and permittee participation by venue and (2) two studies conducted by Dr. Jeff Hartman, Alaska Department of Fish and Game. NPS has confidence in Dr. Hartman's analysis; it was carefully designed and executed and formed the basis of Congress's $23 million appropriation for compensation. No changes were made in the Final Rule as a result of the public comment detailed above. NPS notes, however, that the eligibility criteria adopted by this rule (as proposed in the re-proposed rule) are less stringent than the criteria originally proposed in the 1997 proposed rule. NPS chose the less stringent criteria because public comment and the initial regulatory flexibility analysis led NPS to conclude that the more stringent criteria would have adversely affected the economic well being of an unacceptably high number of fishermen as well as local communities. (3) The rule will apply primarily to current holders of a valid limited-entry, commercial fishery permit for Tanner crab, halibut, and/or salmon troll fisheries that have fished within Glacier Bay proper or adjacent areas over the ten year period 1989-98. Because some permit holders may hold permits for multiple fisheries and because statistical reporting units for which permit holders report their catch align poorly with park boundaries or have changed configuration over time it is extremely difficult to estimate the number of permit holders impacted by the rule (i.e., those displaced by, or not qualifying to continue fishing under, the J < Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations 56461 rule). Our best estimates, obtained from the CFEC, indicate that 40-50 Tanner crabbers, 80-220 halibut fishermen, 80- 330 hand trollers and 100-380 power trollers would be displaced from Glacier Bay proper. Estimates for salmon trollers encompass both summer and winter fisheries openings for Statistical Area 114, which includes Cross Sound and Icy Strait in addition to Glacier Bay proper. The troll fishery in the Bay proper typically occurs during the winter opening and the number of affected entities is most likely closer to the lower estimate for this fishery. Other small entities which are likely to be affected by this final rule include: vessel owners who are not permit holders, crew members, seafood processing firms, seafood processing laborers, lost tax revenues to local government jurisdictions, and fishing support sector small entities in local communities (i.e., chandlerys, fishing gear and hardware stores, fuel sales, grocery stores, boat mechanics, etc.). Fewer than 40 vessel owners who are not permit holders are currently estimated to be affected by this final rule, although the number of vessels that will continue to be leased by qualifying permit holders and will continue to participate in Glacier Bay proper fisheries is unknown. It is currently not possible to estimate the number of small entities in these other classes because many of the spatial and temporal parameters of projected affects are currently not well known. (4) The projected reporting, record keeping and other compliance requirements are described in the rule. Section 13.65{a)(5) outlines the specific type of documentation that an applicant must provide to the superintendent to obtain a lifetime access permit. Section 123 requires fishermen to provide a sworn and notarized personal affidavit attesting to their history of participation as a limited permit holder within Glacier Bay, during the qualifying period, for each fishery for which a lifetime access permit is being sought. Section 123 also requires applicants to provide other documentation that corroborates their history of participation in the fishery, and a copy of their current State of Alaska limited entry permit (and in the case of halibut, an International Pacific Halibut Commission quota share) that is valid for the area that includes Glacier Bay for each fishery for which a lifetime access permit is sought. Licensing and landing histories-two types of readily available corroborating documentation-are required by this regulation. A certified printout of an applicant's licensing history in a fishery is available at no charge from the CFEC. The licensing history corroborates participation in the fishery during the qualifying years. Landing reports, documenting an applicant's harvest activities in a specific commercial fishery by year and location, are available at no charge from the Alaska Department of Fish and Game (ADFG). The classes of small entities which will be subject to the requirement are current limited entry permit holders for the Glacier Bay commercial halibut fishery who have participated as a permit holder in that fishery for at least two years during the period 1992-1998, and current limited entry permit holders for the Glacier Bay salmon or Tanner crab commercial fisheries who have participated as a permit holder in that fishery for at least three years during the period 1989-1998. No professional skills are necessary for preparation of the report or record. All necessary materials are available either from ADFG or the CFEC. {5) NPS has and will continue to mitigate the significant economic impact on small entities impacted by this statute by the following actions: • This rule adopts October 1, 2000 as the effective date of the Glacier Bay proper permit requirement, rather than the re-proposed rule date of January 1, 2000 to give applicants more time to collect the required documentation and apply for the permit. • This rule selected the less stringent eligibility criteria for lifetime permits that was published in the re-proposed rule (two years in seven, and three years in ten) rather than the eligibility criteria that was originally proposed (six years in ten). " NPS will administer, in a fair and timely manner, the mandated 23 million dollar compensation program, which will recompense small entities affected by the phase-out of commercial fishing in specified areas of Glacier Bay National Park. Most aspects of the rule are direct requirements of Section 123. Section 123 also directed the Secretary of the Interior to determine the eligibility criteria for the Glacier Bay fishery. The eligibility criteria adopted by this rule (as proposed in the re-proposed rule) is less stringent than the criteria originally proposed in the 1997 proposed rule. NPS chose the less stringent criteria because public comment and the initial regulatory flexibility analysis led NPS to conclude that the more stringent criteria would have adversely affected the economic well being of an unacceptably high number of fishermen as well as local communities. The reasons for not selecting alternative criteria are discussed extensively both above and in the re-proposed rule (64 FR 41854, 41860-63, August 2, 1999). NPS has placed a copy of the final regulatory flexibility analysis on file in the Administrative Record at the address specified in the ADDRESSES section. Copies are available upon request. Regulatory Planning and Review This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866. a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, the environment, or other units of government. Jobs in local Alaska communities will be lost and a Federally funded compensation program will mitigate the economic impacts on individuals and the communities. An economic analysis has been completed and is attached (See Regulatory Flexibility Act Section). With this rule we are establishing eligibility requirements and application procedures for obtaining a permit for lifetime access to three commercial fisheries authorized in Glacier Bay proper. b. This rule will not create inconsistencies with other agencies' actions. Section 123 calls for the Secretary and the State of Alaska to cooperate in the development of a management plan to regulate these ongoing commercial fisheries. Certain inlets or areas of inlets of Glacier Bay proper are either closed to all commercial fishing, or limited to trolling by qualifying fishermen for king salmon during the winter season. Section 123 confirms the statutory prohibition on commercial fishing within the Park's designated wilderness areas, and authorizes compensation for qualifying Dungeness crab fishermen who had fished in designated wilderness waters of the Beardslee Islands and Dundas Bay. c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule implements and establishes eligibility requirements and application procedures for obtaining a permit for lifetime access to three commercial fisheries authorized in Glacier Bay proper. d. This rule raised novel legal or policy issues regarding the management of fisheries in Glacier Bay National Park. 56462 Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under the Congressional review provisions of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule: a. does not have an effect on the economy of $100 million or more, as demonstrated in the economic analysis; b. will not cause an increase in costs or prices for consumers, individual industries, Federal, State or local government entities, or geographic regions; c. does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises (See Regulatory Flexibility Act Section). Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.): a. This rule will not "significantly or uniquely" affect small governments. A Small Government Agency Plan is not required. This rule does not change the relationship between the NPS and small governments. b. The Department has determined and certifies pursuant to the Unfunded Mandates Reform Act that this rule will not impose a cost of $100 million or more in any given year on local, State or tribal governments or private entities. (See Regulatory Flexibility Act Section.) Takings In accordance with Executive Order 12630, the rule does not have significant takings implications. No takings of personal property will occur as a result of this rule. Perceived takings due to job loss will be offset by the compensation program. This rule implements and establishes eligibility requirements and application procedures for obtaining a permit for lifetime access to three commercial fisheries authorized in Glacier Bay proper. (See Regulatory Flexibility Act Section.) Federalism In accordance with Executive Order 12612, the rule does not have significant Federalism effects. The primary effect of this rule is to implement eligibility requirements and application procedures for obtaining a permit for lifetime access to three commercial fisheries authorized in waters of Glacier Bay National Park. Civil justice Reform The Department has determined that this rule meets the applicable standards provided in Section 3(a) and 3(b)(2) of Executive Order 12988. The rule does not unduly burden the judicial system. NPS drafted this rule in plain language to provide clear standards and to ensure that the rule is easily understood. We consulted with the Department of the Interior's Office of the Solicitor during the drafting process. Paperwork Reduction Act This rule contains information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995. The collection of information contained in section 13.65(a)(5)(iii) of this rule is for issuing a permit for lifetime access to three authorized commercial fisheries within Glacier Bay proper based upon sufficient historical participation. The information collected will be used to determine who qualifies for the issuance of a permit for lifetime access. It is necessary for someone to apply to obtain a permit. Specifically, NPS needs the following information from an applicant to issue a permit for lifetime access to the salmon troll fishery, Tanner crab pot and ring net fishery, and halibut longline fishery authorized within Glacier Bay proper: (1) Full name, date of birth, mailing address and phone number. (2) A sworn and notarized personal affidavit attesting to the applicant's history of participation as a limited entry permit or license holder in one or more of the three authorized Glacier Bay fisheries during the qualifying years. (3) A copy of a current State or-in the case of halibut- International Pacific Halibut Commission commercial fishing permit card or license that is valid for the area including Glacier Bay proper. (4) Documentation of commercial landings within the statistical units or areas that include Glacier Bay proper during the qualifying period. (5) Any available corroborating information that can assist in a determination of eligibility for the lifetime access permits for the three authorized fisheries within Glacier Bay proper. NPS has submitted the necessary documentation to the Office of Management and Budget under 44 U.S. C. 3501 et seq., and received approval for the collection of this information for all areas covered by this rule under permit number 1024-0125. 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, DC 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, DC 20503. National Environmental Policy Act In Aprill998, NPS released a comprehensive Commercial Fishing Environmental Assessment (EA) that described and addressed the potential environmental impacts of the proposed action (the 1997 proposed rule) and four alternatives for managing commercial fishing activities in the marine waters of the park. On October 21, 1998 Section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 (Section 123), was passed by Congress and signed into law. Congress passed Section 123 toward the end of what had alr~ady been an extended public involvement and comment period on the 1997 proposed rule and 1998 EA. Congress, in passing Section 123, clarified and limited the Secretary of the Interior's discretionary authority with respect to authorizing commercial fishing in Glacier Bay National Park. Section 123 required the Secretary to describe eligibility criteria for the lifetime access permits for Glacier Bay proper, closed certain named inlets and wilderness waters, and clarified that the outer marine waters of the park should remain open to existing fisheries under a cooperatively developed state/federal management plan. Based on the information in the EA a finding of no significant impact was determined and no environmental impact statement will be prepared. Effective Date In accordance with 5 U .S.C. (d) (3) this rule is effective October 20, 1999, with the exception of paragraphs (a) (10) (i)- (iii) which take effect on january 1, 2000. We find good cause to implement this regulation to meet the requirement mandated by Congress in Pub. L. 106- 31 Sec. 501(e). List of Subjects in 36 CFR Part 13 Alaska, National parks, Reporting and recordkeeping requirements. Federal Register /Vol. 64, No. 202 /Wednesday, October 20, 1999 /Rules and Regulations 56463 For the reasons stated in the preamble, the National Park Service amends 36 CFR part 13 as follows: PART 13-NATIONAL PARK SYSTEM UNITS IN ALASKA 1. The authority citation for part 13 is amended to read as follows: Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65 also issued under 16 U.S.C. 1a-2(h), 20, 1361. 1531, 3197; Pub. L. 105- 277, 112 Stat. 2681, October 21. 1998; Pub. L. 106-31, 113 Stat. 57, May 21. 1999. 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) Commercial fishing: authorizations, closures and restrictions. (1) What terms do I need to know? (i) Commercial fishing means conducting fishing activities under the appropriate commercial fishing permits and licenses as required and defined by the State of Alaska. (ii) Glacier Bay means all marine waters within Glacier Bay National Park, including coves and inlets, north of an imaginary line drawn from Point Gustavus to Point Carolus. (iii) Outer waters means all of the non-wilderness marine waters of the park located outside of Glacier Bay. (2) Is commercial fishing authorized in the marine waters of Glacier Bay National Park? Yes-Commercial fishing is authorized within the outer waters of the park and within the non- wilderness waters of Glacier Bay, subject to the provisions of this chapter. (i) Commercial fishing shall be administered pursuant to A cooperatively developed State/federal park fisheries management plan, international conservation and management treaties, and existing federal and Non-conflicting State law. The management plan shall provide for the protection of park values and purposes, the prohibition on any new or expanded fisheries, and the opportunity to study marine resources. (ii) Commercial fishing or conducting an associated buying or processing operation in wilderness waters is prohibited. (iii) A new or expanded fishery is prohibited. The Superintendent shall compile a list of the existing fisheries and gear types used in the outer waters and follow the procedures in §§ 1.5 and 1. 7 of this chapter to inform the public. (iv) Maps and charts showing which marine areas of Glacier Bay are closed to commercial fishing are available from the Superintendent. (3) What types of commercial fishing are authorized in Glacier Bay? Three types of commercial fishing are authorized in Glacier Bay non- wilderness waters: longline fishing for halibut; pot and ring fishing for Tanner crab; and trolling for salmon. (i) All other commercial fishing, or a buying or a processing operation not related to an authorized fishery is prohibited in Glacier Bay. (ii) On October 1, 2000, each fishery will be limited to fishermen who qualify for a non-transferable commercial fishing lifetime access permit (see paragraph (a)(4) of this section). Commercial fishing without a permit issued by the superintendent, or other than in accordance with the terms and conditions of the permit, is prohibited. (iii) The Superintendent shall include in a permit the terms and conditions that the superintendent deems necessary to protect park resources. Violating a term or condition of the permit is prohibited. (4) Who is eligible for a Glacier Bay commercial fishing lifetime access permit? A Glacier Bay commercial fishing lifetime access permit will be issued by the superintendent to fishermen who have submitted documentation to the superintendent, on or before October 1, 2000, which demonstrates to the satisfaction of the superintendent that: (i) They possess valid State limited entry commercial fishing permits for the district or statistical area encompassing Glacier Bay for each fishery for which a lifetime access permit is being sought; and, (ii) They have participated as limited entry permit holders for the district or statistical area encompassing Glacier Bay for each fishery for which a lifetime access permit is being sought. (A) For the Glacier Bay commercial halibut fishery, the Applicant must have participated as a permit holder for at least two years during the period 1992- 1998. (B) For the Glacier Bay salmon or Tanner crab commercial fisheries, the applicant must have participated as a permit holder for at least three years during the period 1989-1998. (5) What documentation is required to apply for a commercial fishing lifetime access permit? The required documentation includes: (i) The applicants full name, date of birth, mailing address and phone number; (ii) A notarized affidavit, sworn by the applicant, attesting to his or her history of participation as a limited permit holder in Glacier Bay, during the qualifying period, for each fishery for which a lifetime access permit is being sought; (iii) A copy of the applicant's current State of Alaska limited entry permit and in the case of halibut an International Pacific Halibut Commission quota share, that is valid for the area that includes Glacier Bay, for each fishery for which a lifetime access permit is sought; (iv) Proof of the applicant's permit and quota share history for the Glacier Bay fishery during the qualifying period; (v) Documentation of commercial landings for the Glacier Bay fishery during the qualifying periods, i.e., within the statistical unit or area that includes Glacier Bay: for halibut, regulatory sub-area 184; for Tanner crab, statistical areas 114-70 through 114-77. For salmon, the superintendent will consider landing reports from District 114; however, the superintendent may require additional documentation that supports the applicant's declaration of Glacier Bay salmon landings. For halibut and Tanner crab, the superintendent may consider documented commercial landings from the unit or area immediately adjacent to Glacier Bay (in Icy Strait) if additional documentation supports the applicant's declaration that landings occurred in Glacier Bay. (vi) Any additional corroborating documentation that might assist the superintendent in a timely determination of eligibility for the access permits. (6) Where should the documentation for a lifetime access permit be sent? Before October 1, 2000, all required information (as listed in paragraph (a) (5) of this section) should be sent to: Superintendent, Attn: Access Permit Program, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. (7) Who determines eligibility? The superintendent will make a written determination of an applicant's eligibility for the lifetime access permit based on information provided. A copy of the determination will be mailed to the applicant. If additional information is required to make an eligibility determination, the applicant will be notified in writing of that need and be given an opportunity to provide it. (8) Is there an appeals process if a commercial fishing lifetime access permit application is denied? Yes-If an applicant's request for an a commercial fishing lifetime access permit is denied, the superintendent will provide the applicant with the reasons for the denial in writing within 15 days of the 56464 Federal Register/Val. 64, No. 202/Wednesday, October 20, 1999/Rules and Regulations decision. The applicant may appeal to the Regional Director, Alaska Region, within 180 days. The appeal must substantiate the basis of the applicant's disagreement with the Superintendent's determination. The Regional Director (or his representative) will meet with the applicant to discuss the appeal within 30 days of receiving the appeal. Within 15 days of receipt of written materials and the meeting, if requested, the Regional Director will affirm, reverse, or modify the Superintendent's determination and explain the reasons for the decision in writing. A copy of the decision will be forwarded promptly to the applicant and will be the final agency action. (9) How often will commercial fishing lifetime access permit be renewed? The superintendent will renew lifetime access permit at 5-year intervals for the lifetime of a permittee who continues to hold a valid State limited entry commercial fishing permit, and for halibut an International Pacific Halibut Commission quota share, and is otherwise eligible to participate in the fishery under federal and State law. (10) What other closures and restrictions apply to commercial fishermen and commercial fishing vessels? The following are prohibited: (i) Commercial fishing in the waters of Geikie, Tarr, Johns Hopkins and Reid Inlets. (ii) Commercial fishing in the waters of the west arm of Glacier Bay north of 58°50'N latitude, except commercial fishermen who have been authorized by the superintendent to troll for salmon may troll for king salmon during the period October 1 through April30, in compliance with state commercial fishing regulations. (iii) Commercial fishing in the east arm of Glacier Bay, north of an imaginary line running from Point Caroline through the southern point of Garforth Island and extending to the east side of Muir Inlet, except commercial fishermen who have been authorized by the superintendent to troll for salmon may troll for king salmon south of 58°50'N latitude during the period October 1 through April 30, in compliance with state commercial fishing regulations. * (b) * * * (5) [Reserved] (6) [Reserved] * * Donald J. Barry, * * Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 99-27297 Filed 10-19-99; 8:45am] BILLING CODE 43111-711-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [OPP-300935; FRL-6386-5) RIN 2070-AB78 Pyrithiobac Sodium Salt; Time-Limited Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation extends the time-limited tolerance for residues of the herbicide pyrithiobac sodium salt (sodium 2-chloro-6-[(4,6- dimethoxypyrimidin -2-y 1) thio] benzoate) in or on cottonseed at 0.02 parts per million (ppm). E.I. duPont de Nemours and Co., Inc., requested this tolerance under the Federal Food, Drug, and Cosmetic Act, as amended by the Food Quality Protection Act of 1966. The tolerance will expire on September 30, 2001. DATES: This regulation is effective October 20, 1999. Objections and requests for hearings, identified by docket control number OPP-300935, must be received by EPA on or before December 20, 1999. ADDRESSES: Written objections and hearing requests may be submitted by mail, in person, or by courier. Please follow the detailed instructions for each method as provided in Unit VI. of the "SUPPLEMENTARY INFORMATION." To ensure proper receipt by EPA, your objections and hearing requests must identify docket control number OPP- 300935 in the subject line on the first page of your response. FOR FURTHER INFORMATION CONTACT: By mail: James A. Tompkins, Registration Division 7505C, Office of Pesticide Programs, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. Office location, telephone number, and e-mail address: Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, (703) 308-5697, e-mail: tompkinsjames@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A Does this Action Apply to Me? You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to: Cat- egories Industry NAICS 111 112 311 32532 Examples of Poten- tially Affected Entities Crop production Animal production Food manufacturing Pesticide manufac- turing This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under "FOR FURTHER INFORMATION CONTACT." B. How Can I Get Additional Information, Including Copies of this Document and Other Related Documents? 1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http:/ I www.epa.gov/. To access this document, on the Home Page select "Laws and Regulations" and then look up the entry for this document under the "Federal Register--Environmental Documents." You can also go directly to the Federal Register listings at http:/ I www.epa.gov/fedrgstr/. 2. In person. The Agency has established an official record for this action under docket control number OPP-300935. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805. .J' 1./\W OFFI C E O F BRUCE B. W E YHRAUCH, LLC w ltyn>t:k@ Jl f ia l a s ka. net 1 1·1 S FH :\N I.:I .I N ST SlJ I TE 200 _llJNE ,\1 1. i\1./\S K/\ 'J'JHO I TELEPHONE : (~07) ·161 -S561• FAX: (907) 463 -5 85R September 15, 1999 -. VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Superintendent T omie Lee Glacier Bay National Park and Preserve Box 140 Gustavus, AK 99826-0140 SEP 2 3 ,ggg Re: Comments Related to Proposed Rule for Commercial Fisheries in Glacier Bay, Alaska. 64 Fed. Reg. 41854 -41875 (Aug. 2, 1999). Dear Superintendent Lee: We represent several Southeast Alaska commercial fishermen, fish buyers, and fish processors that fish in, buy fish in and from, or process fish in and from Glacier Bay, Alaska. We submit these comments as solicited by the Department of Interior, National Park Service (NPS) in the above-referenced Federal Register Notice related to the proposed rule (Notice). 1. The federal government does not have jurisdiction to manage, implement, or adopt regUlations that prevent commer cial fishermen licensed by the State of Alaska from fishing in the marine waters of Glacier Bay, as defined in the Notice (Glacier Bay). The State of Alaska has complete jurisdiction to manage marine waters in Glacier Bay. The State has the sole management authority to define open and dosed waters, fishing seasons and effort, and to decide who may fish there. Submission of these comments on behalf of the firms and individuals we represent is in no way intended, and should not be construed, as recognition of the NPS Superintendent Tomie Lee September 15, 1999 Page2 to take any action to deprive the State of its management of, or jurisdiction over, commercial fisheries in Glacier Bay. 2. Proposed rule§ 13.65(a)(1) reads as follows: Glacier Bay means all marine waters within Glacier Bay, including coves and inlets, north of an imaginary line drawn from Point Gustavus to Point Carolus. First, Commercial fishermen should not have to guess where an "imaginary line" is, especially if they are subject to boarding and being ticketro by federal agents, and federal prosecution for "line" violations under federal law. If an exact line can be drawn between these two points of land, then it should be drawn and put in the federal rule. If it cannot be drawn, or the agency does not draw it, then fishermen who are subject to crossing the line when fishing should not be subject to any federal prosecution or fine if they drift over the imaginary line from Icy Strait into Glacier Bay: Second, the phrase "including coves and inlets," should be deleted. It is ·redundant, ·unnecessary, and not required by either Congress ·or a common sense definition of Glacier Bay. If the NPS believed that this phrase would add some clarification, it only adds confusion. The NPS provides no rationale or corrimentary in the Notice as to why this phrase is in the proposed regulation. Ifthe NPS includes "coves a ... J.d ·iJJ.lets" in the· definition of Glacier: }3ay,.whynot include the phrase "channels and.passages" too? The included phrase only adds questions and interpretations unnecessary to a clean, understandable rule. Taking these two points together, a better alternative draft of this subsection would read: ·Glacier Bay means all. marine waters within Glacier Bay north of· a line drawn from Point Gustavus to Point Carolus, defined as [insert correct longitude/latitude]. Superintendent Tomie Lee . September 15, 1999 · Page 3 3. Proposed rule§ 13.65(a)(2) reads as follows: Authorizaticn. Commercial fishing is autho~d in the non.., wilderness marine waters of the park in compliance with paragraph (a) of this. section, and applicable federal and non- conflicting state laws and regulations . . First, the word n non-conflictingn should be deleted. If a law conflicts then it is not applicable. Therefore, the word non-conflicting appears to be inadvertently added before state, but not before federal. · · Second, the general area that the proposed regulation addresses is Glacier Bay .. However, the definition of Authorization in §(a)(2) addresses "waters of the park" This authorization should be specific to Glacier Bay because the authorization to fish in the outer waters is addressed by NPS in §(a)(4). Taking these two points together, a better' alternative draft of this subsection would read: Authorizaticn. Commercial fishing is authorized in the non- wilderness marine waters of the Glacier Bay in compliance with paragraph (a) of thi~ section and applicable state and federallaw. · 4. Proposed rule§ 13.65(a)(3} reads as follows: Wzldemess. Commercial fishing and associated buying and processing operations withill. designated· wilderness are prohibited. Maps and charts showing designated wilderness areas are .available from the Superintendent. First, this section includes a definition that is broader than the de.finition of "commercial fishing" given in § 13.65(a)(1). Subsection (a)(3) reads "commercial fishing and associated buying and processing operations." There is no basis for adding "and associated buying and processing operations"" to the ' ' Superintendent Tomie Lee September 15, 1999 Page 4 phrase "commercial fishing." To do so is unauthorized, without a reasonable basis, and without any explanation. Therefore, it is arbitrary and capricious and an abuse of discretion to add the phrase. A second problem with -this section is the reference to go the Superintendent to get information on prohibited waters~ The NPS is tdling commercial fishermen that if they want to know.where they can't fish, don't call us, call someone else: the amorphous Superintendent. A better alternative would be to provide the information in the rule. -- Third, maps and charts of "designated wilderness areas" are subject to being lost, temporarily misplaced, reinterpreted (I hesitate to say redrawn without public input), or any combination of factors. These considerations make them very unuseful to fisherffien when they have to wait for the Superintendent to send them. Therefore, the maps and charts showing, and specifying by exact longitude and latitude, 11 designated wilderness areas 11 should be· published with the final-rule. There should be no guessing, and no reference to someone else in order to know what area· of historic fishing ground is a basis for criminally prosecuting someone if they drop-gear in what is now designated as wilderness area. This subsection should be redrafted to read as follows: Wtldemess. Commercial fishing within designated wilderness is- -prohibited. Designated wilderness is shown on the accompanying inap and is set forth published with this rule and as areas described as follows: [longitude latitude, and referenced areas in relationship ~o these lines]. An alternative to subsection (a)(3) is discussed below on page 8, point 7, which discusses ~eas dosed to commercial fishing (subsection (a)(S)(vi)). The suggestion made there makes it unnecessary to include ·subsection (a)(3) as proposed. · · Superintendent Tomie Lee September 15, 1999 Page 5 5. Proposed rule§ 13.65(a)(4) reads as follows: Outer wtters. Commercial fishing is authori~d within the marine outer waters of the park subject to a cooperatively " developed State/Federal park fisheries management plan and applicable federal and non-conflicting state laws and regulations. See our comments made above under point· number 3 regarding unnecessary comments and qualifiers regarding 11 non-conflicting state laws, 11 which apply to this subsection as well. The proposed section should also be ·rewritten to tie into earlier subsections that define Glacier Bay. To read more clearly and consistently with the rest of the rule, the subsection should be redrafted to read as follows: Outer 'lmters. Commercial fishing is authorized in all marine· waters of the park outside Glacier Bay according to a fisheries management plan developed cooperatively by the State of Alaska and federal government. · 6. Proposed rule§ 13.65(a)(5)(iii) reads as follows: . Obtaining a sptrial use permit. The special use permi~s for access to the three authorized Glacier Bay commercial fisheries are available to fishermen who-(A) Possess a valid commercial fishing permit for one or more of the three fisheries authorized in Glacier Bay; and, (B) Provide documentation to the Superintendent prior to October 1, 2000, which demonstrates that the individual participated as a permit holder in the Glacier Bay commercial halibut fishery for at least two years during the period 1992- 1998, or, in the case of the Glacier Bay salmon or Tanner crab commercial fisheries, participated as a permit holder for at least three years during the period· 1989-1998. The Superintendent Tomie Lee September 15, 1999 Page 6 documentation provided must include: full name, date of birth, mailing address and phone number; a sworn affidavit attestirig to the applicant's history of participation as a permit holder in one or more of the three authorized fisheries within Glacier Bay during the qualifying period; a copy of a current State of Alaska or, in the case of halibut, International Pacific Halibut Commission commercial fishing permit or lic~nse that is valid for the area including Glacier Bay; documentation· of licensing history for the fishery during the qualifying period; documentation of commercial landings for the fishery during the qualifying periods and within the statistical unit or area that includes Glacier Bay or Icy Straits. Fishermen are requested to provide any additional corroborating . documentation that might be available to assist in a timely determination of eligibility for the special use permits for access. This subsection should be revised to make the several changes. First, organizationally, the three fisheries should be broken out into subsections so that each fishery is discussed separately. The suggested revision below takes care of this by revising subsection (B). The discussion of documentation necessary to oBtain a special use permit can be set out as presently drafted, as applying to each fishery. The suggested revision below takes care of this by adding a subsection (C). Second, as presently drafted the NPS requires fishermen to prove that they fished in particular fisheries during some arbitrary period. The explanation by NPS of the basis for selecting various 11 qualifying periods 11 appears to be based not on what actually happens in a fishery, but what may be achievable politically (b.alancing comments from the Wuderness Society and Sierra Club against Alaska commercial fishing interests). · Superintendent Tomie Lee September 15, i999 Page 7 Commercial fishermen go in and out of areas. They move operations with the fishety resource, with their hunches, and often times on a whim. Fishermen rely on tides, water temperatures, bottom contpurs, and feed when making fishing harvest decisions. In addition, they make their livings catching a resource that undergoes fluctuations in population density and health. Even NPS researchers :may know that fish are notorious for having fins, and consequently they move from one place to another, and sometimes back agait1 . for many, mostly unknown, reasons. ... · Because of this dynamic, fishermen, like fish, also move in and out of fishing areas. They may fish in one area for a while, and then go somewhere else. They may return to an area evety year, month, or decade. Based upon this behavior by the fishing resource, fishermen may have operated in Glacier Bay at one time, but riot during the window set forth in the NPS proposed rule §(a)(S)(iii)(B). Thus, the fmal rule should be modified so that a fisherman attempting to obtain a special use permit must demonstrate only that they have fished in Glacier Bay for halibut, Tanner crab, or salmon. No one is harmed by this approach. This· is because the fishermen still. have the burden under the proposed modified rule to provide enough information to show that they fished in Gb.cier Bay. Also, even if the facts set forth in the NPS Notice are correct, only 2~4°/o of halibut, 7-12°/o of halibut, and an 11 indeterminate, but presumably small percentage of the salmon harvest 11 comes from Glacier Bay proper. Notice, 64 Fed. Reg. at 41860. Thus, the ·impact to Glacier Bay and any purported park value is outweighed by the benefit to those fishe-rmen that have historically commercially fished in Glacier Bay and can prove it. Alternatively, ifNPS believes that section 123(a)(2)(B) of Public Law 105- 277 (112 Stat. 2681) mandates that fishermen seeking a special use permit for fishing in Glacier Bay prove they fished in Glacier Bay proper during certain qualifying years, then those years should be wide enough to allow fishermen Superintendent Tomie Lee September 15, 1999 Page 8 who fished in the Bay between 1960 (the first year statehood) and 1999 (the year of the fmal NPS rule). ' In summaty, the eligibility windows presently established by NPS in its proposed rule for halibut, Tanner crab, and salmon fishermen are arbitrary, capricious, and an· abuse of discretion. A better fmal rule, incorporating the changes discussed here, would revise subsection (a)(S)(iii) to r~ad as follows: Obtaining a spocial use pennit. The special use permits for access to the three authorized Glacier Bay commercial fisheries· are available to fishermen who , (A) Possess a valid comrhercial fishing permit for one or more of the three fisheries authorized in Glacier Bay; and, (B) Provide documentation to the Superintendent prior to October 1, 2000, which demonstrates that the individual historically participated as a commercial fishety permit holder or crewmember in the (i) halibut fishery in Glacier Bay, .. (ii) salmon fishery in Glacier Bay, or (iii) Tanner crab fishery in Glacier Bay. (C) The documentation provided must include: full name, date of birth, mailing address and phone number; a sworn affidavit attesting to the · applicant's history of participation as a permit holder or crew member in one or more of the three authorized fisheries within Glacier Bay; a copy of a current State of Alaska or, in the case of halibut, Interriational Pacific Halibut Commission commercial fishing, permit or license that is valid for the area including Glacier Bay; documentation of licensing history for the fishery during the qualifying period; if relevant, documentation of commercial landings for the fishery during the qualifying periods and within the statistical unit or area that includes Glacier Bay or Icy Straits. Fishermen are requested to provide any additional corroborating documentation that Superintendent Tomie Lee September 15, 1999 Page 9 might be available to · assist in a timely determination of eligibility for the special use permits for access. , 7. Proposed rule§ 13.65(a)(5)(iv) reads as follows: · Areas dosed to fishing. Maps and charts showing marine areas of Glacier Bay closed to commercial fishing are ·available from the Superintendent. · This subsection is unnecessa.ty and redundant. The proposed rule already provides-in §(a)(3) that commercial fishing is prohibited in designated wilderness areas of Glacier Bay. The final rule should provide maps and information on designated wilderness areas within which commercial fishing is prohibited. Therefore,· unless NPS provides some good reason for including this subsection, it should be ·deleted. Alternatively, NPS could combine subsection (a)(3) with subsection (a)(S)(vi). That hybrid subsection could read as follows, after deleting the proposed subsection (a)(3): · WUderness areas clostrl to fishing. Commercial fishing within - designated wilderness is prohibited. Designated wilderness is shown on the accompanying map and is set forth published wit# this rule and as areas described as follows: [longitude · latitude, and referenced areas in .relationship-to these lines]. Thank you for the opportunity to provide these comments .. Please call me if you have any questions, or would like additional information. V e.ty truly yours, ~W-t Bruce B. Weyhrauch Superintendent Tomie Lee September 15, 1999 Page 10 c: Secretruy of the Interior Bruce Babbitt Senator Ted Stevens Senator Frank Murkowski Representative Don Young Governor Tony Knowles DEPARTMENT OF FISH AND GAME TO : Sally Gibert State CSU Coordinator Division of Governmental Coordination FROM: Tina Cunning State-Federal Issues Program Manager Office of the Commissioner DATE: September 13 , 1999 TONY KNOWLES, GOVERNOR State-Federal Issues; ANILCA Program 333 Raspberry Road Anchorage, AK 99518-1599 PHONE: (907) 267-2248 FAX: (907) 267-2472 SUBJECT: Review of36 CFR Part 13 National Park Service proposed rulemaking for Glacier Bay National Park , Alaska ; Commercial Fishing Regulations We have reviewed the above referenced proposed rule published at FR Vol. 64 , No. 147 on August 2 , 1999 , promulgated to implement the Omnibus Act for FY 1999 as amended by Congress on May 21 , 1999 . We have a number of significant issues regarding these proposed regulations . Our foremost concern involves the inadequate public comment period. (1) The 45 day comment period is too short-it took the Service 74 days to redraft the existing proposed rulemaking to accommodate the amendment but subsequently provided only 45 days to the fishermen , communities , businesses , and others who are directly and significantly impacted by the rulemaking . This runs counter to the Service 's theme of treating the affected parties in a fair and just manner. (2) The notice to affected public was delayed three weeks-the Service delayed mailing the proposed regulations to the public on its mailing list for an additional 3 weeks , thus those without internet federal register access received copies with only 21 days remaining to comment by the deadline-that is , IF they weren 't out fishing . (3) The comment period provided is during the worst possible time for fishermen to have any opportunity to make comments, thus disadvantaging those who will be directly impacted by the regulations. When out on the fishing grounds and trying to make boat payments and a li v ing when the fisheries are open, commenting on Page 1 federal regulations is simply out of the question. Many fishermen were unaware of the publication and had no means to receive it until returning home. • We request that the comment period be extended beyond September 16 for a minimum of 45 additional days. A total of 90 days for public comment of proposed rules is the common period given in Alaska due to the difficulties in reaching affected public. • We request the Service extend the period following closure of the comment period for preparation of the final regulations-which will allow adequate time to fully review, genuinely consider, and incorporate the comments. There is a concern among fishermen that the end of the comment period is only ten (1 0) working days prior to the scheduled publication of the fmal rule. We also have noted substantive changes which need to be made to the eligibility regulation and the preamble language below. The present inadequate time to revise the regulations confirms the general perception that Interior has made final decisions, and thus the public comment will not be considered in the final rule. The proposed lifetime criteria for a permit to conduct remaining fisheries in the Bay is unnecessarily restrictive. The Omnibus Act for 1999 as amended allows continuation of longlining for halibut, pot or ring net fishing for Tanner crab, and trolling for salmon in the Bay proper. These commercial fisheries are already managed under limited entry provisions and conservative management plans adopted by the State and North Pacific Halibut Commission. In our February 1, 1999 review of the Environmental Assessment and 1997 proposed rulemaking, we detailed the reasons we requested that all person who had participated in these fisheries be grandfathered in during this phase out period. The resources are healthy. Fishermen are not going to alter where they fish because of the permit. The net effect of issuing lifetime permits under this criteria will be the current level of use with a reduction in effort as fishermen retire. There is simply no good reason to further restrict the eligibility of those who have participated in these fisheries. • We request the proposed eligibility criteria in 36 CFR Part 13.65(a)(5)(iii) Obtaining a special use permit (B) be revised to allow anyone who currently owns a permit for Tanner crab, halibut, or troll salmon, and anyone who has any history of fishing in the Bay, to continue under the lifetime permit. The requirement of a renewable five-year special use permit in addition to the lifetime access permit as no apparent justification. There is no substantive reason to require a fisherman to renew a permit every five years when he has already applied for and been granted a lifetime special use permit for access to commercial fish in the Bay. The Service could require that they be notified when the Page2 . ~ , lifetime permit holder retires from the fishery in order that they are able to keep a current list of eligible fishermen still fishing. • We request 13.65(a)(5)(v) be deleted, thus eliminating the unnecessary and bureaucratic burden of requiring a duplicative 5-year renewal of the lifetime permit. The proposed rulemaking still fails to meet the requirements of the Regulatory Flexibility Act. In the 1998 Environmental Assessment to accompany the original proposed rulemaking, the National Park Service failed to fully study the economic impacts to the many small businesses and communities that are affected by the closure of Glacier Bay waters to commercial fishing interests. Instead, an arbitrary statement was made that there would be no significant impacts, but no factual basis for this opinion was presented. The Small Business Administration was very critical of these arbitrary statements and concluded "NPS must prepare an IRF A if it intends to abide by the requirements of the RF A" (SBA correspondence to National Park Service superintendent February 1, 1999. For the Service to imply that because the impact of the proposed rule is less than $100 million, they do not have to do an IRF A is unacceptable in Alaska. This rationale further demonstrates the Department of the Interior's unwillingness to recognize the unique circumstances of Alaska's communities and people. The proposed rule states that the compensation package will mitigate these impacts, but this is a superficial and incomplete telling of the story. In fact, the contribution of the compensation package moneys can itself create negative impacts. It is possible that fishermen, business owners, and others, once compensated, may decide to permanently leave the region. We believe there will be long-term economic and social impacts in the region. • The Service is once again requested to conduct a full Environmental Impact Statement and include a factual economic analysis of impacts to local communities and small business that are being affected by this proposed rule. The National Park Service is implying unfounded assertions of jurisdiction over commercial fishing in the remaining waters of the Park claimed by the Service. Throughout the summary and preamble discussion of comments the accompany the August 2, 1999 proposed rule, the Service incorrectly paraphrases the provisions for continuation of commercial fisheries contained in the Omnibus Act of FY 1999 as amended. No where did Congress in the least way imply that the Service would have any jurisdiction over the remaining fisheries. Neither did Congress imply those fisheries would be further restricted by the Service. Congress directed the Service "shall" cooperate with the state. Our understanding is that this direction clearly limits the Service's authority to the eligibility issues in the phase out and closures of the Bay proper and directs the Service to cooperate with the State. The State has been frustrated by years of the Service conducting research on fisheries, restricting related public activities, and Page3 .. , inappropriately regulating access affecting fisheries without genuinely cooperating with the state. We believe the Omnibus Act directs the Service to cooperate henceforth, but does not give the Service any authority over the conduct of those fisheries. Please again read our State of Alaska letter of February 1, 1999 where we endorse any interests the Service has in cooperating with the state. We have a fully public and scientifically credible management system, which is demonstrated by decades of healthy resources in the region. We welcome any opportunities to improve our abilities to conduct further desired research and resource assessment. We have management plans in place for every commercial fishery, which we conduct in the vicinity. These management plans are adopted by the Department of Fish and Game and the Alaska Board of Fisheries in a thorough and fully public process. We envision the Service cooperating with that public and scientific process in the State's management of those fisheries. Where the Service may have particular concerns or interests, or our staff may desire assistance in data, cooperating in directing efforts to those interests can be incorporated into our management planning process. No where does Congress ever indicate that the commercial fisheries will only be continued if the state and the Service adopt a cooperative management plan as stated at the end of the Summary. If such cooperative efforts fail, those fisheries shall continue under the existing management regimes. • We request the Service immediately correct through an amendment to the proposed rulemaking, and correct all future correspondence to accurately reflect the Congress' intent in directing the Service to cooperate. No where does Congress imply that "various existing commercial fisheries" will NOT "continue in most marine waters of the park" if there is not a "cooperatively developed state/federal fisheries management plan". To the contrary, Congress clearly states those fisheries will continue and directs the Service to cooperate with the state in the future development of management plans that are adopted for the management of those fisheries. cc: Rob Bosworth Doug Mecum Kathy Swiderski Dick Hofmann ANILCA Division Contacts Page4 FW: Glacier Bay phase-out regulations 1 of 1 Subject: FW: Glacier Bay phase-out regulations Date: Wed, 04 Aug 1999 10:16-0900 From: "Cunning, Tina" <Tina_ Cunning@fishgame.state.ak.us> FYI To: "Gibert, Sally (office)" <sally _gibert@gov.state.ak.us> , "Swiderski, Kathy" <Kathryn_Swiderski@law.state.ak.us>, "Marshall, Scott" <Scott_ Marshall@fishgame.state.ak.us> , "Hartman, Jeff' <Jeff_ Hartman@fishgame.state.ak.us> -----Original Message----- From: Bosworth, Robert Sent: Tuesday, August 03, 1999 5:16 PM To: Cunning, Tina Subject: RE: Glacier Bay phase-out regulations I have told the media we will be focusing on eligibility (which is the focus of the latest proposed rule) and will be fine-tuning our previous comments. I also said I saw no analysis to justify 3 out of 10 years, or any analysis of economic effects. Please convert me over to enterprise mail, as I plan to close down the old system ASAP. That involves your pluggi~g in my new address, which spells out my name, etc. Thanks -----Original Message----- From: Cunning, Tina Sent: Tuesday, August 03, 1999 8:42 AM To: Bosworth, Robert; Parr, Nancy Cc: 'Marshall, Scott'; Duffy, Kevin; Mecum, Doug D.; Koeneman, Tim; Delaney, Kevin; Brock, Irv; 'Holmes, Rocky'; Hartman, Jeff; 'Swiderski, Kathy'; 'Gibert, Sally (office)' . Subject: Glacier Bay phase-out regulations Rob and Nancy: Attached are the commercial fishing regu1ations for eligibility/phase-out in Glacier Bay area, which were published yesterday with a 45-day comment period (due to NPS Sept 16) . I am assuming that I am coordinating staff comments to consolidate a department response through DGC in consultation with Law, as usual. I will mail hard copies to some appropriate staff. Due to the extent of coordination that may be due to finalize department comments, I ask that staff get their comments to me no later than September 2. Please advise if there is going to be any change in this routine procedure or if you have already logged the draft regulations in of the log item #. Thanks Tina << File: 0899regs.doc >> 08/09/1999 1:09PM TEXTWPC2 SEC. 123 . COMMERJCAL FISHING IN GLACIER BAY NATIONAL PARK. (a) GENERAL._ ( l) 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 with in Glacier Bay Proper, commercial fishing shall be limited , by means of nontransferable lifetime access permits, solely to individuals who (A) hold a valid commercial fishing permit for a fishery in a geographic area that includes the nonwilderness waters within Glacier Bay Proper ; (B) provides 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) pots 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 G lacier Bay Proper (West Arm) north of 58 degrees , 50 minutes north latitude except for trolling for king salmon during the period from October l through April 30. The water of Johns Hopkins Inlet , Tarr Inlet and Reid Inlet s hall 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 Muir Inlet. except that trolling for king salmon during the period from October I through April30 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 commercia l fishing in Glacier Bay Proper pursuant to parag raph (2), no fishing shall be allowed in Geikie Inlet. (b) THE BEARDSLEE ISLANDS AND UPPER DUNDAS BA Y._Commerical fishing is prohibited in the designated wilderness waters within Glacier Bay National Park in 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 engaged 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 Dungness 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, relinquished to the United States the fishing vessel used for Dungeness crab fishing in Glacier Bay Proper; and (3) hold 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 on 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 I, 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 com pleted 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 Custavus to Point Carolus. (2) Noting in this section is intended to enlarge 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. 41854' Federal Register/VaL 64, No. 147 /Monday, August 2, 1999/Proposed Rules must consider whether this proposed rulemaking will have a significant economic impact on a substantial number of small entities. Small entities include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant under their fields, and governmental jurisdictions with populations of less than 50,000. Therefore, the Coast Guard certifies under 5 U.S.605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities, as the regulations will only be in effect for approximately three and one half hours on one day in a limited area of San Juan Harbor and its vicinity. Collection of Information This proposed rule contains no collection of information requirements under the Paperwork Reduction Act (44 U.S. C. 3501 et seq.). Federalism This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 12612, and it has been determined that this rulemaking does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment Environmental Assessment The Coast Guard has considered the environmental impact of this proposed rule consistent with Figure 2-1, paragraph 34(h) of Commandant Instruction M16475.1C, and has determined that this action has been categorically excluded from further environmental documentation. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. Proposed Regulations In consideration of the foregoing, the Coast Guard proposes to amend part 100 of Title 33, Code of Federal Regulations as follows: 1. The authority citation for Part 100 continues to read as follows: Authority: 33 U.S.C. 1233 through 1236; 49 CFR 1.46; 33 CFR 100.35. 2. Add temporary§ 100.35T-07-056 to read as follows: § 100.35T-07-056 Winston Offshore Cup, San Juan, Puerto Rico. (a) Regulated Area: A regulated area is established for an area starting in San Juan Bay, out the bay entrance around Punta El Morro, then East 2 nautical miles to Penon San Jorge, then back around the bay. The regulated area is established beginning at 18°28' 4"N, 066°08'0"W, then North to 18°28'9"N, 066°08'0''W, then East to l8°28'7"N, 066°05'5"W, then South to 18°28'2"N, 066°05'5"W, then directly South to the Shore. This area includes San Juan Bay, except San Antonio Approach Channel, San Antonio channel, Army Terminal Channel, Army Terminal Turning Basin, and Puerto Nuevo Channel, and Graving Dock Channel. All coordinates referenced use Datum: NAD 1983. (b) Special Local Regulations: Entry into the regulated area by other than event participants is prohibited, unless otherwise authorized by the Patrol Commander. Spectator craft are required to remain in a spectator area to be established by the event sponsor Puerto Rico Offshore Tour, San Juan, Puerto Rico. (c) Dates: This section is effective at 12 p.m. and terminates at 3:30p.m. AST on October 10, 1999. Dated: July 22, 1999. G.W. Sutton, Captain, U.S. Coast Guard, Acting Commander, Seventh Coast Guard District. [FR Doc. 99-19690 Filed 7-30-99; 8:45am] BILLING CODE 4910-15-M DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 RIN 1024-A899 Glacier Bay National Park, Alaska; Commercial Fishing Regulations AGENCY: National Park Service, (NPS), Interior. ACTION: Re-Proposed rule. SUMMARY: This re-proposed rule satisfies the requirement in Pub. L 106-31 for the Secretary of Interior to prpvide an opportunity for public comment of not less than 45 days. This rule implements section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 ("the Act"), as amended, and establishes special regulations for commercial fisheries within the marine waters of Glacier Bay National Park (NP), Alaska. This rule, in part, amends the general regulatory prohibition on commercial fishing activities in units of the National Park System, and instead, authorizes various existing commercial fisheries to continue in most marine waters of the park subject to a cooperatively developed state/federal fisheries management plan consistent with the requirements of the Act. The rule limits commercial fisheries in Glacier Bay proper to pot and ring net fishing for Tanner crab, longlining for halibut, and trolling for salmon. The rule describes eligibility criteria that allow certain fishermen with a sufficient, reoccurring recent history of participation in Glacier Bay fisheries to continue fishing in Glacier Bay proper for their lifetimes. Moreover, the rule describes application requirements and procedures for those fishermen to follow to obtain a special use permit for lifetime access to a particular Glacier Bay proper fishery. The rule would close certain inlets and areas in the upper reaches of Glacier Bay proper to all commercial fishing by a variety of closure dates set forth in the Act, and would limit certain other areas only to winter season trolling for king salmon by qualifying fishermen. Additionally, the rule would reaffirm closure of all designated wilderness areas in the park to commercial fishing activities. Nothing in this rule is intended to modify or restrict non-commercial fishing activities otherwise authorized under federal and non-conflicting state fishing regulations, nor to effect legislatively authorized commercial fishing activities within Glacier Bay National Preserve. In summary, section 123 of the Act laid out four major sets of directives on commercial fishing in Glacier Bay National Park First, it closed specifically identified areas of non- wilderness waters in Glacier Bay proper and all wilderness waters to all commercial fishing. Second, it established a process for ''grandfathering'' certain qualifying fisherman who would be allowed to continue fishing in the remaining waters of Glacier Bay proper under lifetime permits. Third, it clarified that the marine waters outside of Glacier Bay proper would remain open to commercial fishing. And fourth, it directed that the commercial fisheries that would be allowed to continue be managed in accordance with a cooperatively developed State/Federal fisheries management plan. This rule addresses the first three of these directives. The cooperative State/ Federal fisheries management plan is being developed independent of this rule and will be announced at a later date. DATES: Written comments will be accepted through September 16, 1999. ADDRESSES: Comments should be directed to Tomie Lee, Superintendent, Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41855 Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. FOR FURTHER INFORMATION CONTACT: Tomie Lee, Superintendent, 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 Park and Preserve is a 3.3 million acre, glacier-crowned, marine wilderness that stretches northward from Alaska's Inside 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 assemblage of marine and terrestrial life. Glacier Bay National Monumentwas 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 April 18, 1939. 53 Stat. 2534. The expanded monument included additional lands and marine waters consisting of all of Glacier Bay proper; 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 designated 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, "* * * 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." Id. at 137; see Cong. Rec. H10532 (1980). Congress described the park as including the adjacent marine waters, and depicted the park accordingly on the official maps. In addition, ANILCA designated several marine areas within and near Glacier Bay proper as additions to the National Wilderness Preservation System. 16 U.S.C. 1132 note. These areas include upper Dundas Bay, Adams Inlet, the Hugh Miller Inlet complex, Rendu Inlet, and waters in and around the Beardslee Islands. Within the park's jurisdiction are over 600,000 acres of marine waters, including 53,000 acres of designated wilderness. As a result, Glacier Bay National Park is one of only a handful of conservation areas in the world that includes extensive saltwater habitat. It is also the largest marine area managed by the National Park Service (NPS). As such, it provides valuable opportunities to study and enjoy marine flora and fauna in an unimpaired state, and to educate the public about the biological richness of marine systems and relationship to adjacent glacial and terrestrial systems. Management of Glacier Bay National Park and Preserve In addition to the national monument proclamations and relevant ANILCA provisions, the management of Glacier Bay National Park and Preserve has been governed by the NPS Organic Act, 16 U.S.C. Section 1, et seq. The NPS Organic Act authorizes the Secretary of the Interior to manage national parks and monuments to "conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of same in such manner and by such means as will leave them unimpaired for the enjoyment offuture generations." ld. Section 1. This act further directs that "[t]he authorization of activities shall be construed and the protection, management, and administration of [NPS areas] shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress." Id. Section la-1. The NPS national general regulations and policies prohibit the commercial extraction of any resources-including fish-for personal profit from areas of the National Park System, absent specific direction to the contrary from Congress. This regulatory prohibition on the commercial extraction of resources from national park areas forms the origins of the longstanding conflict regarding commercial fishing activities in the nonwilderness marine waters of Glacier Bay National Park. The NPS Organic Act authorizes the Secretary to implement ''rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments and reservations under the jurisdiction of the National Park Service." ld. Section 3. The Secretary has additional specific authority to "promulgate and enforce regulations concerning boating and other activities on or relating to waters located within areas of the National Park System, including waters subject to the jurisdiction of the United States * * *." Id. Section la-2(h). The designated wilderness areas within Glacier Bay NP. including the marine areas, are additionally governed by the Wilderness Act, Id. section Sec. 1131, et seq., which defines wilderness "as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." The Wilderness Act requires that wilderness be "administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness." Id. Section 1131(a). Among other things, the Wilderness Act prohibits "commercial enterprise* * *within any wilderness area * * * except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act * * *" Id. Section 1133(c). In addition, Congress recently passed the Omnibus Consolidated and Emergency Supplemental Act for FY1999 (Pub. L. 105-277), signed into law on October 21, 1998. Section 123 of this Act contained a series of compromises that were designed to provide final resolution of the dispute over the appropriateness of commercial fishing in Glacier Bay. Congress subsequently enacted legislation amending section 123 on May 21, 1999 in order to provide further clarification of commercial fishing phase-out and compensation provisions." This rule is designed to implement the various provisions of section 123 of the Act, as amended by section 501 of the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-31, 113 41856 Federal Register /Vol. 64, No. 147 /Monday, August 2, 1999 /Proposed Rules Stat. 57). The requirements of the Act, as amended, are more fully described in a following section of this rulemaking. Commercial Fishing History 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. The Act of June 6, 1924, 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 may establish closed seasons during which fishing may be limited or prohibited * * *." The first Alaska Fishery Regulations of the Bureau of Fisheries, promulgated between 1937 and 1939, addressed fisheries in an area designated as the Icy Strait district including Glacier Bay National Monument. See 2 FR 359 (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 (March 4, 1941), 50 CFR Part 222; 16 FR 2158 (1951), 50 CFR Part 117; 24 FR 2153 (March 19, 1959), 50 CFR 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 CFR 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." Id. 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 CFR 1.4; 27 FR 6281 Quly 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 park fresh 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 CFR Sees. 2.13(j)(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 of fish for commercial purposes was a nonconforming use of park resources. As already noted, in 1980, ANILCA designated Glacier Bay National Monument as 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 in any area of Glacier Bay National Park. Id. section 410hh-4. The 1983 revision of the NPS general regulations included the current prohibition on commercial fishing throughout marine and fresh waters within park areas system-wide, unless specifically authorized by law. 48 FR 30252, 30283; 36 CFR 2.3(d)(4). The 1988 version of NPS ''Management Policies," still current, reiterates this approach. However, in the 1980's NPS concluded that some commercial fishing would be tolerated and allowed to continue in Glacier Bay despite National Park Service general policies to the contrary. For example, the 1980, 1983 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, longlining and pot fishing for crab, and seining (Excursion Inlet only) in park waters * * *." General Management Plan at p.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 Rule The Wilderness Act has prohibited commercial fishing in the wilderness waters within Glacier Bay NP since 1980. Nevertheless, commercial fishing activities were allowed to continue through a policy of non-enforcement by park management in both wilderness and non-wilderness marine waters of the park. Ultimately recognizing the need to conform Glacier Bay management practices with NPS national policies against commercial fishing in the Park System, there have been several attempts since 1990 to resolve this situation through proposed rulemaking, proposed legislation and negotiation. 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 U.S. District Court for Alaska 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." The District Courts' decision was affirmed in March 1997 by the United States Court of Appeals for the Ninth Circuit (Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065 (9th Cir. 1997)). Close to the time that the plaintiffs referenced above initiated the litigation, the State of Alaska's Citizens Advisory Commission on Federal Areas hosted a series of public meetings in local communities to discuss the issues. Following these meetings, NPS decided to draft a regulatory approach to resolving the issues. NPS published its first proposed rule on August 5, 1991 (56 FR 37262). In essence, the 1991 proposed rule would have: (a) Clarified the statutory prohibition on commercial fishing in designated wilderness waters, and (b) phased out commercial fishing in other park waters over a seven year period. NPS held ten public meetings on the proposed rule, received over 300 comments, and drafted a final rule. At the State's request, however, the Department of the Interior refrained Federal Register /Vol. 64, No. 147/Monday, August 2, 1999/Proposed Rules 41857 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. Between fall1995 and spring 1996, officials from Glacier Bay National Park and the Alaska Department of Fish and Game (ADFG) co-hosted several meetings in Southeast Alaska involving "stakeholders" interested in trying to resolve the commercial fishing controversy. The stakeholders included representatives of the commercial fishing industry; Native groups; and local, regional and national conservation organizations. The 1997 Proposed Rule The National Park Service introduced a new proposed rule for commercial fishing on April16, 1997 (62 FR 18547). The 1997 proposed rule was intended to provide a further opportunity for public participation and discussion-including ongoing efforts with the State of Alaska-toward a comprehensive resolution of commercial fishing issues in the park. NPS also recognized that new regulations would be necessary to exempt any ongoing commercial ' fisheries from the general NPS regulatory prohibition found at 36 CFR 2.3(d) (4). This proposed rule varied significantly from the 1991 NPS proposed rule that would have phased out commercial fishing throughout the park after seven years. In general, the 1997 proposed rule: (a) Prohibited all commercial fishing in Glacier Bay proper but provided certain limited exemptions over a fifteen-year phase-out period for fishermen with a qualifying history of participation in four specified fisheries; (b) closed Glacier Bay proper to commercial fishing during the visitor use season; (c) allowed most commercial fisheries in the park's marine waters outside Glacier Bay proper to continue, subject to reexamination at the end of fifteen years; (d) implemented the statutory prohibition on commercial fishing in designated marine wilderness waters; and, (e) contemplated a management regime for those commercial fisheries allowed to continue that would be based upon a cooperatively developed fisheries management plan developed by NPS and the State, implemented through the Alaska Board of Fisheries, and subject to the Secretary of the Interior's authority to protect park resources and values. Moreover, the preamble of the proposed rule offered for public comment ideas for halibut and Dungeness crab studies, a Hoonah Tlingit cultural fishery, and additional protections for Lituya and Dundas bays. The full text of the 1997 proposed rule should be referred to for a complete description of the proposed actions and additional background information. NPS described several objectives for resolution of commercial fishing issues in the 1997 proposed rule and an accompanying Environmental Assessment (EA) published in April 1998 and discussed later in more detail in this document. These objectives included: preserving habitats and natural population structure and species distribution; allowing natural succession and evolutionary processes to proceed; maintaining biological and genetic diversity; minimizing visitor and vessel-use conflicts; protecting wilderness values; honoring Native cultural ties, and, expanding existing knowledge and understanding of marine ecosystems. NPS also sought to treat individual commercial fishermen fairly, and to develop an effective partnership with the State that would enhance understanding and conservation of fisheries and marine resources within the park. In October 1997 (62 FR 54409) NPS extended the public comment deadline from October 15th to June 1, 1998 to provide additional opportunity for comment on the proposed rule and pending EA. From November 1997 to February 1998 NPS sponsored 3 additional full- day public workshops in Juneau, Alaska to continue discussing the issues associated with the park's commercial fisheries. The first of these public workshops was noticed in the Federal Register (62 FR 58932, October 31, 1997), while subsequent workshops were publicized in local media. These workshops contributed to the scoping process for the NPS EA. Scheduled concurrently with the NPS public workshops, the Alaska Department of Fish and Game sponsored 6 public meetings in Juneau from November 1997 to June 1998. This Glacier Bay Work Group, as it was termed, included several representatives of the commercial fishing industry, Native corporations and governments, and local, regional and national conservation groups. The meetings were open to and attended by various members of the public. NPS and DOl representatives attended all of the meetings. The objective of the work group was to reach an overall consensus agreement regarding commercial fishing activities in the park that could be reflected in either regulation or legislation. Considerable progress was made by the work group, under the State's leadership and in a good faith effort by all involved, to address a number of substantive and difficult issues. The group was unable to achieve a consensus agreement at conclusion of its last meeting in June 1998 and collectively agreed to a final effort toward the goal of consensus in October and November-after the close of the summer fishing season. However, action on the part of Congress-by introducing the issue of commercial fishing into the legislative arena and passing the Act in October-interceded and resolved many issues considered by the work group. Notes from each of the State's work group meetings are included in the administrative record of this rulemaking. The 1998 Environmental Assessment In April1998, NPS released a comprehensive Commercial Fishing Environmental Assessment in support of the 1997 proposed rule for Glacier Bay. The EA described the proposed action (the 1997 proposed rule) and four other alternatives for managing commercial fishing activities in the marine waters of the park. Collectively, the EA's five alternatives described a broad range of potential strategies for managing commercial fishing activities in the nonwilderness marine waters of the park. Alternative One described the 1997 proposed rule. Alternative Two was considered the no action alternative because it would implement existing NPS regulations; this alternative described immediate closure of the park to all commercial fisheries. Alternative Three emphasized use of scientific information to protect resident and sensitive fisheries, while allowing harvest of more transitory species moving in and out of the park. Alternative Four described continuation of commercial fishing throughout the park, consistent with sustainability and habitat protection. Finally, Alternative Five described the 1991 proposed rule's seven-year phase-out of all commercial fisheries. Marine wilderness waters in the park were closed to commercial fishing under each of the alternatives, reflecting the Wilderness Act's prohibition on commercial fishing in wilderness waters, and the federal district and appellate court decisions. Following publication and distribution of the EA in April 1998, NPS held seven public hearings and seven open houses during May in six Southeast Alaska communities (Elfin Cove, Gustavus, Hoonah, Juneau, Pelican, and Sitka) and in Seattle to · solicit comment on the EA and proposed rule. On June 1, 1998, NPS extended the public comment deadline for the EA and proposed rule to 41858 Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules November 15, 1998 (63 FR 30162). NPS held additional informal public meetings in Wrangell and Petersburg during September 1998 following requests from residents of those communities. The FY1999 Omnibus Supplemental Appropriations Act and Amendment The Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999 (Public Law 105-277, 112 Stat. 2681) ("the Act"), was passed by Congress and signed into law on October 21, 1998. Section 123 of the Act contained a variety of specific statutory requirements for the management or phase out of commercial fishing in the marine waters of Glacier Bay National Park. Section 123 of the Act contained the following provisions: The Secretary of the Interior was directed to cooperate with the State of Alaska 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. This management plan is to provide for the continuation of 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) of section 123. The management plan is also to provide for the protection of park values and purposes, prohibit any new or expanded fisheries, and provide for the opportunity for the study of marine resources. Section 123 limits commercial fisheries within Glacier Bay proper to ring or pot fishing for Tanner crab, longlining for halibut and trolling for salmon. That section limits participation in these commercial fisheries to the lifetimes of individual fishermen with a qualifying history, but notes that the qualifying criteria are to be determined by the Secretary of the Interior. Certain inlets or areas of inlets of Glacier Bay proper were closed immediately to all commercial fishing, or were limited to winter season king salmon trolling by qualifying fishermen. Section 123 also restated the statutory prohibition on commercial fishing within the park's designated wilderness areas. Last, Section 123 authorized compensation for qualifying Dungeness crab fishermen who had fished in designated wilderness waters of the Beardslee Islands and Dundas Bay. The congressional managers of this legislation suggested NPS " extend the public comment period on the pending regulations (62 FR 18547, April16, 1997) until January 15, 1999, modify the draft regulations to conform to [section 123's]language and publish the changes in the final regulations." See H.R.4328 Conf. Rep. No.105-825, p.1213. Subsequently, the public comment period on the 1997 proposed rule and 1998 EA was reopened and extended until February 1, 1999 {63 FR 68666, December 11, 1998; 64 FR 1573, January 11, 1999). The 1,400 persons who had provided comment by December 1998 were mailed a copy of the Federal Register extension and invited to provide additional public comment in light of the new legislation. A second Federal Register notice {63 FR 68668, December 11, 1998) describing application procedures for the Dungeness crab commercial fishery compensation program authorized by the Act was published and distributed concurrently with the extension of the public comment deadline. On May 21, 1999 new legislation passed by Congress amending section 123 of the Act was signed into law. This legislation, section 501 of the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-31), modified the Dungeness crab fishery compensation program and created a new compensation program for fishermen. processors, crewmembers, communities and others adversely affected by restrictions on commercial fishing activities in the park. Twenty-six million dollars were appropriated for compensation programs under section 501; this is in addition to $5,000,000 in compensation Congress had previously appropriated for qualifying Dungeness crab fishermen under section 123 of the 1998 Act. Section 501 also established delayed implementation dates for the non-wilderness closures in Glacier Bay proper relative to ongoing halibut and salmon commercial fisheries in 1999. Finally, section 501 required the Secretary of the Interior to publish this rule, provide a forty-five day public comment period, and then publish a final rule no later than September 30, 1999. The prohibition on commercial fishing in designated wilderness was not affected by the amendments found in section 501. This rule implements the requirements of section 123, as amended, and establishes eligibility requirements and application procedures for qualifying fishermen to obtain a special use permit for lifetime access to the three commercial fisheries authorized to continue in Glacier Bay proper. Many ideas described in the 1997 proposed rule and the other four alternatives in the 1998 EA were resolved by the section 123 of the Act. Simultaneously with the publication of this rule, NPS intends to accelerate and expand its collaboration with the State of Alaska to develop a fisheries management plan for the park as contemplated by section 123 of the Act. Analysis of Public Comments Comment Period This rule reflects an extensive and lengthy public involvement process that began with the publication of the 1997 proposed rule on April16, 1997 and ended with the close of the public comment period on the proposed rule and 1998 EA on February 1, 1999. The comment period for the proposed rule was extended four times and the comment period for the EA was extended three times over the course of twenty-one months to insure adequate opportunities for public involvement. NPS held seven public hearings during the month of May in the previously noted communities. Each public hearing was preceded by a two- hour open house question and answer period. NPS also established an Internet website that allowed the public to access information regarding the proposed rule and the EA. and provide public comment. The NPS recorded testimony at public hearings from 66 individuals and received 1,557 written public comments. Written comments included surface mail, faxes and electronic mail. NPS staff read all written public comments, reviewed the transcripts of public hearings. and prepared a summary document of substantive comments. Overview of Public Comment The majority (75%) of the 66 individuals testifying at the public hearings {6 hearings were held in Southeast Alaskan communities and 1 in Seattle) supported the continuation of commercial fishing in Glacier Bay National Park. The remaining individuals commenting at public hearings supported some form of commercial fishing phase-out. Slightly more than one-third {570) of the written comments indicated support for the NPS's preferred alternative and/or the proposed regulations. A few (25) commenters simply urged NPS to support a fair process to end commercial fishing. One hundred thirty- four individuals supported the preferred alternative and proposed regulations with a shorter phase-out period and 72 individuals wrote in support of a general, non-specific phase-out of Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41859 commercial fishing in park waters. A few individuals (14) supported Alternative Five that reflects the 1991 proposed regulations. Many comments were received (136) supporting Alternative Two that would close all fisheries immediately. Eleven percent (177 individuals) of commenters wrote letters that did not identify support for a particular alternative, but expressed general opposition to commercial fishing. Comments that supported reducing or eliminating commercial fishing in park waters indicated that commercial resource extraction is inappropriate in a National Park and expressed concern about potential impacts to the park's unique marine ecosystem and visitor experiences. Many noted that park waters should be managed for scientific study and public enjoyment. Ninety-seven individuals signed a petition supporting ongoing commercial fishing in park waters. An additional 432 individuals (28%) signed form letters and 132 commenters wrote general letters of support for ongoing commercial fishing. Commenters supporting ongoing commercial fisheries indicated that the fisheries were currently well managed by the State and were not negatively affecting park resources or visitors. Most commenters supporting commercial fishing stated that fishery closures would severely impact fishermen, their families, and local communities in Southeast Alaska. NPS Response: Congress passed the Act in October 1998, toward the end of what had already been an extended public involvement and comment period on the 1997 proposed rule and 1998 EA. Congress, in passing the Act, resolved a number of issues that had previously been presented for public comment. The new law contained comprehensive statutory requirements regarding management of commercial fisheries in the marine waters of the park. Congress further expanded and clarified the law in the amendment passed on May 21, 1999. This rule largely implements the requirements of the Act, as amended. All public comments have been analyzed, but many of them have been overridden by the enactment of legislation. General Comments Numerous commenters expressed surprise that commercial fishing had been occurring in Glacier Bay National Park; most of these individuals indicated that they believed commercial fishing was inappropriate and/or incompatible with the NPS mission as defined in the Organic Act. Many individuals noted that National Parks were "special places" where activities should be managed differently than elsewhere. Several commenters noted that commercial ventures of any kind are inappropriate in national parks and several mentioned that National Parks and the resources contained therein belong to all Americans and should not be harvested for private profit. Several commenters noted that most Alaskan waters were open to commercial fishing and recommended that Glacier Bay be set aside as one small closed area. Many commenters indicated that NPS should not allow commercial fishing until there was incontrovertible evidence that such activities would not harm park resources. On the other hand, NPS received many comments noting that commercial fishing had occurred for more than 1 00 years in park waters with no evidence of resource or visitor impacts. Several individuals noted that commercial fishing is allowed in other National Parks, so it could be allowed in Glacier Bay. Many individuals felt that other activities taking place in Glacier Bay including cruise ship traffic likely resulted in far more impact than commercial fishing. jurisdiction The State, the Alaska Trollers Association (AT A), the Citizens Advisory Commission on Federal Areas (CACFA), Petersburg Vessel Owners Association (PVOA), and others said that the State rather than NPS holds jurisdiction over the marine waters of Glacier Bay. The State offered that the Submerged Lands Act, the Alaska Statehood Act and the Alaska Constitution all indicated that 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." They further noted, however, that "the Act overcomes some of our jurisdictional concern" because it clarifies that NPS may act as provided in the legislation as long as they work directly with the State to address issues. NPS Response: We acknowledge a legal disagreement with the State of Alaska and others who share the State's view over issues of ownership and jurisdiction with respect to the marine waters of the park. The establishment of Glacier Bay National Monument in 1925, and its 1939 expansion to include the current marine boundaries, predate Alaska statehood by decades. Congress has recognized the park's marine boundaries and waters-and described the Secretary of the Interior's authority and responsibility to manage these marine waters for the purposes of the park-in several federal laws, the most recent example being passage of section 123 of the Act, as amended. Court cases on similar jurisdictional issues in Alaska and elsewhere clearly support the federal view. Importantly, this is the only national park area in Alaska that includes marine waters, and it is the largest marine area included in our National Park System. We concur with the State of Alaska's conclusion in its comments that the 1998 Act, as amended, should serve to resolve or redress many of the jurisdictional concerns and issues between the federal government and State of Alaska. The Act outlines appropriate roles and authorities for both the federal government and state with respect to management of commercial fisheries in the park. It provides both a requirement and an important opportunity for ongoing cooperation and collaboration between the state and federal government in the implementation of a jointly developed fisheries management plan. We will strive, working together with the State, to provide public opportunity to participate in the development of the fisheries management plan independent ofthis rulemaking. We believe that the best long-term remedy for jurisdictional issues is an effective state/federal cooperative relationship that outlines and respects individual and collective agency roles and responsibilities, keeps lines of communication open, incorporates opportunities for public involvement in decision making processes, and, ultimately, serves to implement the letter and spirit of the Act, as amended. This is where we intend to devote our energies. Economic Issues Many commenters-both those in support of and opposed to ongoing commercial fisheries in Glacier Bay- expressed concern that fishery closures would severely affect numerous individuals and communities. Commenters stated that commercial fishing is the largest employer in Southeast Alaska, that most private sector income in Southeast is derived from the seafood industry, and that the value of fisheries trickles throughout Southeast Alaska and the State. Many commenters mentioned that local fishing villages owe their existence to commercial fishing and depend on raw fish taxes. Commenters opposed to ongoing commercial fishing often cited their concern regarding economic impacts as a reason for recommending a gradual phase-out of commercial fishing. These individuals felt that a 41860 Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules phase-out would allow individuals and communities a transition period, thus reducing economic impacts. Several commenters said that previous actions or issues were already negatively impacting fishermen's economics (including the IFQ program, low prices for halibut and salmon, state closures of fisheries) and expressed concern that Glacier Bay closures represented an additional economic burden. Many commenters stated that closures would affect not only permit holders but also deckhands, vessel owners, processors and other local business. Several commenters felt that closing Glacier Bay to commercial fishing would devalue fishing permits and IFQ shares. NPS received numerous comments expressing concern for individual communities and/or businesses or individuals. For example, the cities of Petersburg, Wrangell, Coffman Cove and Pelican wrote comments stating that their communities would be severely impacted by fisheries closures. Individual commenters expressed concern that the community of Pelican could not survive if park waters were closed. One commenter recommended that NPS set up a Glacier Bay Economic Disaster Fund for communities such as Pelican that have a history of raw fish tax revenues from resources harvested in Glacier Bay. NPS Response: We expect that the Act, as amended, and the '' grandfathering'' eligibility criteria described in this rule, will significantly reduce economic impacts to fishermen, communities, and others associated with the commercial fishing industry in Glacier Bay. Specifically, the Act authorizes existing commercial fisheries to continue in outer waters where well over 80% of the harvest from park waters occur: we support continuation of these locally important commercial fisheries. Additional harvest will continue in most of Glacier Bay proper during the life tenancy period of qualifying fishermen, supporting fishermen and communities for many years to come. Only about 18% ofthe park's marine waters (wilderness and non-wilderness) will be immediately closed to commercial fishing pursuant to the closure schedules set forth in the Act, as amended; these closed waters have historically accounted for less than 10% of total commercial harvest in the park. Within Southeast Alaska, Glacier Bay proper has historically accounted for only 2-4% of the commercial halibut harvest; approximately 7-12% of commercial Tanner crab harvest; and an indeterminate, but presumably small percentage of the salmon harvest. We expect that some portion of the revenue previously harvested in the closed areas of the park will be recovered in Icy Strait and/or other Southeast waters: this is particularly likely in the halibut fishery with its individual quota system and eight month fishing season. Some fishermen not meeting the ''grandfather'' eligibility criteria for Glacier Bay proper will be displaced. However, these fishermen presumably have not established a regular or sustained dependence on Glacier Bay fisheries and are already fishing and established elsewhere. Moreover, the various compensation packages outlined in the Act, as amended, should alleviate economic impacts to Dungeness crabbers who commercially fished in designated wilderness as well as others directly and substantially dependent upon various fisheries in Glacier Bay proper. We recognize that wilderness water closures and eventual phase-out of commercial fishing in Glacier Bay proper-as required by Congress-will have an adverse effect on some individuals and communities. However, it is important to note, as several commenters stated, that other external factors including changes in state regulations, establishment of the IFQ system for halibut, and international market forces have also affected fisheries-related incomes in Southeast Alaska. For example, declining fish tax revenues in recent years in small communities such as Hoonah and Pelican have not been the result of any commercial fishing changes within the park. Congress has appropriated a total of $31,000,000 through the 1998 Act and its 1999 amendment to mitigate economic impacts to fishermen, crewmembers, processors, communities and others adversely affected by restrictions on commercial fishing within Glacier Bay. The State and the AT A were concerned that NPS has not made economic information compiled by an NPS paid contractor available to the public or included it in the 1998 Environmental Assessment analysis. NPS Response: Data used in the economic analysis presented in the 1998 EA as well as in the Regulatory Flexibility Analysis described below, came from landing information provided by the State of Alaska Commercial Fishery Entry Commission. We therefore believe that the data is readily available to the public at large. Moreover, by publishing this document as a rule with an additional 45-day public comment period, we will be providing the public with and additional opportunity to review and comment on the economic data associated with this rule. Regulatory Flexibility Act Many commenters including the Alaska State Legislature, AT A, PVOA, and the State felt that the certification of "no significant economic impact" under the Regulatory Flexibility Act was unfounded, that NPS had inaccurately analyzed the effects of the proposed regulation on small business entities and communities, and that NPS should complete a regulatory flexibility analysis pursuant to the Regulatory Flexibility Act. The State believed that NPS certification of no significant impact was deficient because it did not include an adequate factual basis, did not provide any analysis to support the conclusion, and did not include public input on its assumption and conclusions. The State offered that the findings of this analysis must be made available for public review and comment before proceeding with a final rule. NPS Response: NPS and the Department of Interior have responded to these comments by completing a Regulatory Flexibility Act analyses of different eligibility criteria under consideration for participation in the three Glacier Bay fisheries authorized by section 123 (a)(2) of the Act. Congress, in passing the Act, as amended, resolved various issues about commercial fishing in the park and precluded most decisions by the Secretary of the Interior except the grandfather eligibility criteria. Accordingly, the Regulatory Flexibility Act analysis has focused only on these eligibility criteria. The analysis reviewed the effects of the Department's decision regarding eligibility criteria on the small businesses, organizations and communities in the Glacier Bay area. The analysis is summarized in this preamble. Grandfather Eligibility Requirements for Continued Fishing in Glacier Bay Proper NPS received numerous general comments that ongoing fisheries should be limited to those individuals with a "history" of fishing in Glacier Bay or "dependent on" Glacier Bay fisheries. The Wilderness Society and many individuals wrote in support of the proposed 6 of 10-year eligibility requirements and asked NPS not to relax this requirement. The Wilderness Society further stated that NPS bears the burden of proving that criteria selected will not result in resource impacts during the phase-out period. While NPCA did not specify criteria, they offered that ''two days or several months of fishing in the Bay over a period of a Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41861 decade should not be considered adequate for demonstrating historical dependence." A few individuals recommended stringent criteria including: only individuals who fished prior to 1990 should be allowed to continue, only individuals with a familial history of 100+ years of fishing should be allowed to continue, and only individuals older than 50 years should be allowed to continue. One commenter felt that fishing six years was not a serious enough commitment to be entitled to continue fishing. Conversely, numerous other commenters recommended more liberal eligibility criteria. The State, AT A and numerous individuals supported criteria that would allow any individual holding a Commercial Entry Permit (including T series, B series, SOS, SIS, and K series permits) with a history of fishing the waters of Glacier Bay to continue. A few individuals supported criteria that would allow any fishermen with a permit for a fishery that occurs in the Bay to fish there. Several individuals suggested that NPS use fishermen's catch history (percentage of landings) from Glacier Bay rather than number of years as a base for eligibility criteria. Several commenters believed that NPS should use different criteria for different fisheries. One commenter recommended that 3 of 5 years be used to determine eligibility for the Tanner crab fishery because this fishery had only recently become commercially valuable. Several individuals commented that their children and grandchildren should be eligible to continue fishing. One commenter recommended that grandfather rights should be 100% transferable with no expiration date, but NPS should be able to buy this right as well as the associated limited entry permit. Many commenters felt that stringent criteria (including the proposed 6/10 years) would be unfair and difficult to implement. Individuals stated that ,fishermen typically "lumped" fish landings on a fish ticket, reporting landing locations based on where they caught most fish on a given trip. In these cases, fish tickets would not necessarily reflect fishing effort in Glacier Bay, One commenter indicated that fish ticket information was frequently changed by the processor and was therefore not accurate. Several individuals were concerned that the 6 of 10-year cr:iteria would eliminate many young fishermen who often have very limited experience fishing elsewhere and large investments to support. A few individuals said that some fisheries were closed during the 1 0-year period being considered, so perhaps no fishermen could qualify for those fisheries. A few individuals felt that strict criteria would displace many fishermen out of Glacier Bay proper, resulting in crowding in Icy Strait which could effect both commercial and recreational catch there. One commenter said that stringent criteria would lower the number of fishermen qualifying resulting in a "bonanza" for remaining fishermen. One commenter stated that the proposed criteria would reward individuals who reported landings for 2 permit holders on a given boat (typical when a crewmember wishes to qualify for an upcoming limited entry fishery and must report landings to do so). Commenters indicated that lenient criteria would not increase fishing pressure on Glacier Bay because individual fishermen have typical fishing locations and would be unlikely to shift into the Bay if they had not fished there previously. One commenter felt that the number of permits reporting landings in the park had remained stable in past years and would not be expected to increase in the future. Many individuals stated that the criteria did not address the needs of crewmembers or individuals that leased vessels to permit holders. A few individuals said that crew (in particular family members) invested considerable time in learning how to fish a particular location assuming they would "inherit" that location in the future. One commenter stated that he often obtained crew jobs because of his knowledge of Glacier Bay and noted that he would not have that opportunity if the fishing fleet were reduced. One commenter stated that he would not meet strict eligibility criteria because he had been leasing a permit. One commenter offered that other limited entry processes have considered the number of years as a crewmember, boat owner or gear owner in determining eligibility for a particular fishery. A few commenters, including the Petersburg Vessel Owners Association, felt that NPS should determine how many fishermen and/or how much harvest was acceptable and then set criteria for eligibility rather than letting these numbers be a "fallout" from the criteria. One commenter recommended that NPS use "good standing", as a means of determining eligibility by allowing only those individuals whom had never been cited for resource or permit violations. Another commenter recommended that continued eligibility should depend on continued compliance with Glacier Bay and state regulations. The State commented that eligible fishermen should be able to continue using the vessel and crew of the permittee's choice. NPS Response: Section 123 (a) (2) of the Act authorizes the Secretary of the Interior to establish eligibility criteria to determine which fishermen will be issued a non-transferable lifetime access permit to continue to fish in those waters of Glacier Bay proper which were left open for grandfathered commercial fishing under the Act. The Secretary of the Interior has now selected eligibility criteria intended to allow those fishermen with a sufficient reoccurring history of participation in the authorized Glacier Bay fisheries to continue fishing for their lifetimes. The 1997 NPS proposed regulations outlined criteria that would have permitted only those individuals who had fished 6 of the last 10 years in Glacier Bay proper to continue fishing. However, based on public comment and the Regulatory Flexibility Analysis, we believe that the criteria described in the 1997 proposed rule would have adversely affected the economic well being of an unacceptably high number of fishermen as well as local communities. This rule would allow continued access to Glacier Bay proper to those fishermen who have fished in Glacier Bay proper in one of the three authorized commercial fisheries as follows: For the halibut fishery, 2 years of participation would be required in Glacier Bay proper during the 7-year period, 1992-1998. For the salmon and Tanner crab fisheries, 3 years of participation would be required in Glacier Bay proper during the 10-year period, 1989-1998. The 7-year qualifying period-as further explained below-for halibut is based, in large part, on the establishment of a unique statistical sub-area for Glacier Bay proper in 1992. Use of this qualifying period will assist fishermen in documenting a history of fishing within Glacier Bay proper. A 10-year qualifying period is used for the Tanner crab and salmon fisheries. These longer qualifying periods (of 7 and 10 years, respectively) are intended to provide a better opportunity for fishermen with a variable but reoccurring history of participation in these fisheries in Glacier Bay proper to qualify for the lifetime access permits. Essentially, these criteria require fishermen to have fished in Glacier Bay proper for approximately 30% of the years during the 7 and 10-year base periods to qualify for continued lifetime access to an authorized fishery. We believe that these criteria reflect a reasonable and balanced approach on appropriate eligibility criteria for lifetime access to the authorized Glacier Bay proper commercial fisheries. 41862 Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules A base period of less than 7 to 1 0- years was considered too short in duration and would not, at least in the case of the Pacific halibut fishery, allow for recent and dynamic changes in the character of the fisheries. We did not consider longer qualifying periods because participation in the three authorized fisheries has only recently stabilized. These fisheries have all become limited entry fisheries in recent times; fewer permit transfers have occurred in recent years. Recent permit holders are most likely to still be fishing and have a current economic reliance on a Glacier Bay proper fishery. The 2 out of 7 -year criteria for the Pacific halibut fishery takes into consideration a recent change in statistical area configuration-the 1992 creation of a separate regulatory sub- area (184) specific to Glacier Bay proper-and allows fishermen to more accurately document their participation in the fishery within Glacier Bay. Before 1992, Glacier Bay was part of regulatory area 182, a larger reporting area combined with Icy Strait. Therefore, it would be difficult for fishermen to document commercial halibut harvest from Glacier Bay proper prior to 1992. This 7 -year qualifying period accommodates changes in the commercial halibut fishery since 1995 when it became a limited entry fishery and the entire nature of the fishery changed with prolonged seasons and Individual Fishing Quotas. The 3 out of 10-year criteria for the Tanner crab fishery accommodates the recent increase in participation in this fishery within Glacier Bay proper from fewer than 10 vessels per year from 1984-1989, to 14-25 vessels per year since 1991. The Tanner crab pot fishery became a limited entry fishery during the latter part of the 1980s. The troll fishery for salmon in Glacier Bay proper is almost exclusively focused on king salmon during the winter commercial fishing season. Because there is no way to separate out Glacier Bay proper harvest from that occurring elsewhere within District 114, we will consider salmon landing reports from District 114 as indirect evidence of participation in the fishery within Glacier Bay proper, provided it is supported by additional corroborating documentation in making application for a lifetime access to the salmon troll fishery in Glacier Bay proper. The qualifying periods described in this rule are considerably longer than those typically used by the State of Alaska when establishing a limited entry fishery. For example, the Alaska Commercial Fisheries Entry Commission used preceding 5-year periods in recently establishing limited entry permit fisheries in Southeast Alaska for Dungeness crab and pot fished shrimp. Under Alaska State law, applicants for these limited entry fisheries were ranked and awarded permits according to their participation and economic dependence on the fisheries over the 5-year qualifying period. We decided in favor oflonger qualifying periods in interest of minimizing economic impacts to fishermen who have participated in the authorized fisheries in Glacier Bay proper. However, like the State of Alaska, we would require recent and multiple years of participation in a given fishery. We do not believe that a single occurrence of commercial fishing within Glacier Bay proper over the past 7 or 10-years demonstrates a sufficient sustained dependency on those park waters to warrant grandfathering such fishermen in for lifetime permits. A special use permit will be required to participate in any of the three Glacier Bay fisheries beginning in calendar.year 2000. The procedures for applying for and obtaining a special use permit, as well as the eligibility criteria, are described in this rule. Fishermen meeting the eligibility criteria may apply for a special use permit so long as they hold a valid permit for the fishery. The special use permit will be renewed on a 5-year cycle for the life time of each fisherman who continues to hold the necessary license for a Glacier Bay fishery, and is otherwise eligible to participate in the fishery. The special use permits are non-transferable under the Act. However, NPS may consider an emergency transfer of a permit in the event or temporary illness or disability, as otherwise authorized by the Commercial Fisheries Entry Commission. These are hardships of an unexpected and unforeseen nature, and a permit transfer would be limited to 1- year in duration. The Act is specific to permit holders and does not provide for individuals who own and lease vessels to Glacier Bay fishermen, or for crewmembers. While these individuals do not qualify, under the law, to receive a special use permit to fish in Glacier Bay, nothing in the Act affects the ability of a special use permit holder to continue to lease the vessel or hire the crew of their choice. Documentation of Eligibility Many commenters felt that fishermen should supply "evidence" or "definite proof" of fishing history, but only a few commenters addressed specifically what NPS should accept in terms of documentation of fishing history. One commenter indicated that the documentation process discussed in the proposed rule was "too easy." Another commenter indicated that evidence of historic fishing should include official ADFG landing tickets, ATA logbook data, ship's log data and a valid ADFG license. A few commenters, including the State, indicated that an affidavit of catch history should be sufficient. The State also recommended that NPS design a validity review and appeals program consistent with due process. Several individuals were concerned that documenting past fishing effort in Glacier Bay would be quite difficult because ADFG statistical areas do not match park boundaries and because fish tickets reflect only the area where the majority of a landing was harvested. ATA and the State felt that requiring documentation beyond an affidavit would be time consuming and expensive for both agencies and fishermen and would reduce the number of eligible fishermen. NPS Response: The Act requires individuals to establish their eligibility to participate in one or more of the three authorized Glacier Bay commercial fisheries. This rule would require that an individual hold a valid commercial fishing permit for the fishery in Glacier Bay, provide a sworn and notarized affidavit attesting to their history and participation in the fishery within Glacier Bay proper, and provide other available documentation that would assist in corroborating their participation in the fishery in Glacier Bay during qualifying years. We are requiring applicants to provide two types of corroborating documentation readily available from the State of Alaska: permit histories and landing reports. The permit history documents an individual's years as a permit holder in a fishery, and the landing report documents years and reported harvest locations for fishery landings by an individual. This required corroborating documentation-copy of a valid permit or license, affidavit, permit history, landing report-is less than that typically required by the State of Alaska or National Marine Fisheries Service (halibut) for similar limited entry programs. We encourage any other forms of corroborating documentation- for example, vessel logbook data or affidavits from other fishermen or processors-that can assist in establishing an applicant's history of participation in the fishery. We recognize the limitations of landing report data based on fish tickets. Although Alaska statute requires accurate reporting of fish harvest information by statistical area, Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41863 fishermen often lump catches from Glacier Bay and Icy Strait statistical areas, reporting them as Icy Strait landings on fish tickets. Moreover, no statistical reporting area exists specific to Glacier Bay for salmon. Because of this, for the salmon fishery we will consider landing reports from District 114-along with other corroborating documentation (this could be affidavits from crewmembers, other fishermen, processors, log books, etc) provided-as indirect evidence of participation in the fishery in Glacier Bay proper. Because both the halibut fishery (regulatory subarea 184) and the Tanner crab fishery (statistical areas 114-70-114- 77) do have reporting areas specific to Glacier Bay, we intend to require some form of additional corroborating documentation beyond the personal affidavit (see suggestions above for th~ salmon fishery) where landing data for these fisheries are inconclusive. In any event, landing reports must be from the reporting area immediately adjacent to Glacier Bay before they will be considered. In the case of halibut, this is regulatory subarea 182; in the case of Tanner crab, this is statistical area 114- 23. These approaches are intended to address concerns regarding the difficulty of attributing harvest to Glacier Bay proper from landing reports, most particularly for the salmon troll fishery. We intend to work closely with the Alaska Commercial Fisheries Entry Commission, the National Marine Fisheries Service and other knowledgeable sources to notify and identify permit owners who meet the eligibility criteria defined for the Glacier Bay commercial fisheries. Management Process for Ongoing Fisheries The State, the CACFA, the Alaska State Chamber of Commerce, the PVOA, the AT A and others requested that NPS clarify particular aspects of the Act. In particular, commenters asked NPS to clarify that ongoing fisheries would be managed by ADFG through the Alaska Board of Fisheries process. They asked for further clarification that NPS's role in joint management would be to contribute expertise in defining and protecting park purposes and values. The State requested that NPS develop specific criteria for the Secretary to use in recommending actions associated with ongoing fisheries. The State also suggested that subsequent rulemaking recognize the authority of the International Halibut Commission, National Marine Fisheries Service, North Pacific Fisheries Management Council, and the Salmon treaty with Canada in managing ongoing fisheries. The State indicated that an existing Master Memorandum of Understanding between NPS and ADFG commits the NPS "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" and requested that NPS reference this MMOU in subsequent rulemaking. They further requested that a written finding be prepared if state regulations appear to conflict with federal law. NPS Response: The scope and nature of the cooperative fisheries management program for Glacier Bay is beyond the subject matter of this rulemaking. Nevertheless, a few brief comments on the NPS/State cooperatively developed management program are in order. We have already begun collaborative discussions with the State of Alaska regarding the fisheries management program authorized under section 123(a)(1) of the Act. We recognize the fisheries management expertise of the State and the effectiveness of the established regulatory and public involvement process of the Alaska Board of Fisheries. We believe that the spirit and intent of the Act-indeed, its balance-envisions a cooperatively developed fisheries management plan and process that is respectful of and maintains the state and federal governments' traditional management roles. We expect the State to continue its role in the day to day management of the authorized commercial fisheries in the park, and that any changes to state managed fisheries will be implemented through the Alaska Board of Fisheries. We support the State's role and regulatory processes. We view the fisheries management plan as the primary vehicle for interagency and public agreement on fisheries management and research objectives in the park. As the planning and management processes are now envisioned, the State would contribute expertise in management of commercial fisheries and NPS will contribute expertise in park management, purposes and values. State and federal agencies, along with input from interested parties, could jointly develop appropriate marine research and assessment programs to improve understanding and management of park fisheries and the marine environment. Ultimately, the Secretary retains the authority and responsibility to protect park resources and values, especially with regards to new or expanded fisheries. Halibut fisheries in the park are managed by the International Pacific Halibut Commission under international treaty and may require separate cooperative planning and research efforts. Cooperative Development of Fisheries Management Plan Many commenters supported the cooperative development of a fisheries management plan. The Wilderness Society requested that NPS prepare an EIS as part of this planning process and ensure that the plan was in compliance with ANILCA and other applicable laws and compatible with park values and purposes. NPCA and numerous other commenters expressed general support for the joint management concept; NPCA recommended that the plan be produced with public involvement and suggested that an advisory committee representing various stakeholders guide the process. The State and others stated that "cooperative development of a management plan" was not synonymous with cooperative management. These commenters reiterated that ongoing fisheries should be managed using the existing state process rather than a cumbersome "dual management" process implied by co-management. One commenter felt that joint management would be difficult because NPS and ADFG biologists would not have similar escapement goals and might disagree about research needed. One commenter suggested that NPS fund an ADFG position because managing Glacier Bay fisheries would be expensive and it is unfair to use license fees for this management. The State requested that subsequent 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. NPS Response: We will work with the State of Alaska in developing a fisheries management plan for the park. The plan must be consistent with the requirements of the Act and all other applicable federal and state laws. We expect the State and NPS will continue their respective management roles, and do not foresee a duplicative management structure. Our general goals in the development of the fisheries management plan are to insure that fisheries subject to harvest are prudently managed, and that park areas and fish populations not subject to commercial harvest are protected. We will also work to insure that ongoing fisheries are managed in context with the park's purposes and values. And we will work to optimize opportunities for research and monitoring programs that 41864 Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules can improve understanding, management and conservation of fisheries and the marine system. We acknowledge the potential merits of creating an advisory committee comprised of a balanced representation of local, state and national interests that could assist in development of a fisheries management plan. The concept of an advisory committee warrants further discussion with the State, but is beyond the scope of this rule. Additional Closures Numerous commenters, including the Sierra Club recommended that commercial fishing be phased out of the park's outer fjords including the non- wilderness portion of Dundas Bay and the complex of small fjords from Cape Spencer to Lituya Bay. The State, the CACF A, the Alaska State Chamber of Commerce, the PVOA, and the ATA believe that the Act did not authorize any additional seasonal or area restrictions or closures including the closures of Lituya and Dundas bays or the closure of areas for research projects. NPS Response: This rule does not implement any additional closures or address restrictions on commercial fisheries beyond those imposed by Congress in passing the Act, as amended. We do not anticipate any additional closures or restrictions specific to commercial fishing in the outer waters of the park (outside Glacier Bay proper) at this point unless those restrictions or closures emerged through the normal course of events in the State's fisheries management administrative process. 15-Year Review for Outer Waters Several commenters stated that the Act did not allow for a 15-year review of outer water fisheries and requested that this language be omitted from future rulemaking language. NPS Response: We agree that the Act does not provide for a 15-year review of outer water fisheries. We do expect that ongoing fisheries will be routinely reviewed to determine whether fisheries management objectives are being met. This routine review should serve to resolve any issues or concerns that arise regarding the fisheries. Reference to a 15-year review, therefore, has been deleted from this rule. New or Expanding Fisheries A few commenters including the AT A expressed concern about NPS's definition of "new or expanding fisheries." Commenters felt that fisheries that have been closed for conservation reasons should not be considered "expanding fisheries" if they could be sustained in the future. AT A also indicated that this definition must not limit the number of boats or harvest levels permitted in a given area. One commenter offered that this definition must not include increased troll effort as it is unclear what past troll effort has been. The City of Pelican commented that recent changes in the groundfish fishery might result in reallocation or expansion of this fishery in Southeast Alaska and indicated that this quota should be allowed to be harvested. The State recommended that NPS avoid defining key fishery management guidelines in subsequent rulemaking such as the prohibition on "new or expanded fisheries" prior to working with the State. The State and AT A indicated that new and expanded fisheries are already limited under existing mechanisms and that NPS should defer to the Alaska Board of Fisheries "Management Plan for High Impact Expanding Fisheries." NPS Response: Issues associated with the prohibition in the Act on "any new or expanded fisheries" are largely beyond the scope of this rule and will be addressed in the State/Federal park fisheries management plan to be collaboratively developed with public input. Commercially Viable Fisheries ATA and the State objected to NPS's use of the term "commercially viable" for determining which fisheries would continue in park waters and requested that future rulemaking omit reference to continuation of these fisheries. AT A indicated that even small, seemingly unprofitable fisheries might be important to individuals who rely on diversification in several fisheries. NPS Response: These issues are beyond the scope of this rule and will be addressed in the subsequent State/ Federal fisheries management plan for the park. Permit and/or License Requirements AT A and the State opposed any permit or license system for ongoing fisheries in outer waters beyond those already implemented by the State, NMFS, or IPHC. NPS Response: We do not intend to implement a permit requirement for participation in commercial fisheries outside Glacier Bay, nor is one described in this rule. We do recognize a general need to obtain better harvest and effort data for fisheries in the park, but believe that there are other actions that should be fully explored in cooperation with fishermen and the State to obtain this data. Procedure Public Hearings Commenters raised several procedural concerns. Several commenters at public hearings felt that the hearings were not well advertised and that they took place during the commercial fishing season, which limited participation by fishermen. These individuals recommended that NPS hold additional public hearings in the fall. One commenter stated that the release of the EA and the hearing schedule conflicted with fishing season and would reduce the number of fishermen able to attend hearings and/or comment in writing. Two commenters requested in writing that additional public hearings be held in Port Alexander, Angoon, Petersburg, Wrangell, Craig and Ketchikan. Several individuals phoned in requests for public hearings in Wrangell and Petersburg. NPS Response: We advertised the local hearings extensively via news releases, public announcements on local radio stations, and flyers posted in local communities. Attendance at the seven hearings and two informal public information meetings was typical of, or greater than, attendance at most NPS hearings. Importantly, because of the many recent public workshops and working group meetings coordinated by the State and NPS, much local attention focused on this issue. We believe that most individuals in Southeast communities were aware that proposed regulations regarding commercial fishing had been published. The public comment period was repeatedly extended over the course of twenty-one months and provided significant opportunities for public input. We scheduled and held public hearings in 6 Southeast Alaskan communities and Seattle and held informal public information meetings upon request in Petersburg and Wrangell. NPS staff heard testimony at the formal hearings from 66 individuals and heard informal comments from many more individuals during informal open houses in these communities as well as at informal public meetings in Petersburg and Wrangell. NPS also received, and reviewed 1,557 written comments that expressed diverse views regarding the commercial fishing issue. We believe that this extensive public input is representative of the various interests and views regarding the issue of commercial fishing in the park. Rulemaking and NEPA Process Many commenters including the State, the Southeast Conference, the State Chamber of Commerce, the Pacific Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41865 States Marine Fisheries Commission, The CACFA. the State Legislature, Representative Gail Phillips, and the cities of Petersburg and Pelican, requested that NPS terminate the rulemaking effort and reissue a proposed rule that reflected the changes rendered by the Act and clarifies how NPS intends to proceed with implementation of the Act. The CACFA felt that NPS has a responsibility under the Administrative Procedures Act to first publish a proposed regulation and provide the public the opportunity to comment. The CACF A also felt that the 60-day extension period for public comment was ineffective because it took 51 days from the date the Act was signed until NPS issued the notice to reopen the comment period. NPS Response: Prior to Congress passing the Act in October 1998, the NPS public comment deadline on the EA and proposed rule was scheduled to run until November 15, 1998. Upon passage of the Act, the congressional managers of the legislation directed the NPS to "extend the public comment period on the pending regulations until January 15, 1999, modify the draft regulations to conform to [the Act's] language and publish the changes in the final regulations." Accordingly, we extended the public comment period until February 1 and mailed notice to the 1,400 individuals who had provided comment by December 1998. We responded by letter in December and January to the State of Alaska and the several others who requested a new rulemaking process following passage of the Act. These responses articulated yet other reasons why we were not then pursuing a new proposed rule to implement the Act, including the view that the Act was within the range of actions addressed and analyzed in the EA. and a concern about negating the efforts and ideas of the many individuals who had provided public comment to date. Notwithstanding the above history, after the close of the public comment period on February 1, 1999, Congress again enacted further directions and clarification language for management of commercial fishing activities within Glacier Bay National Park (section 501 of Pub. L. 106-31, May 21, 1999). Section 501 amended the October 1998 Act and required the Secretary of the Interior to publish an interim final rule without an effective date and a forty-five day public comment period. This rule responds to congressional requirements and the requests from the State of Alaska, fishermen. the Small Business Administration, and others for a new rule describing the Act, as amended. It also provides a Regulatory Flexibility Act analysis of eligibility criteria for the Glacier Bay lifetime access permits. We welcome additional public comments on all aspects of this rule. These commenters also felt that the EA should be redrafted because it does not reflect the current statutory regime, is based on the previously proposed rule, and does not accurately analyze the environmental and socio-economic effects of the alternatives. One commenter believed that the impacts of the Act were not covered in the EA. Moreover, these commenters suggested that the redrafted document should be prepared as a full Environmental Impact Statement (EIS). NPS Response: The Council on Environmental Quality regulations, which describe requirements for implementing the National Environmental Policy Act (40 CFR Parts 1500-1508). indicate that a federal agency will determine whether an EIS must initially be prepared based on agency-specific supplemental procedures. NPS staff reviewed agency- specific procedures and determined that an EIS was not initially required, as the effects of the proposed alternatives were not known to result in significant impacts upon the quality of the human environment. As a result, we proceeded with the preparation of an Environmental Assessment (EA). Had the EA analysis determined that the proposed action would result in a significant effect. a full EIS would have been prepared. Because the published EA included a broad range of alternatives, including an alternative in which all fisheries would continue and an alternative in which no fisheries would continue, the agency has essentially reviewed and displayed the effects of the full range of eligibility criteria. Any decisions regarding eligibility requirements were fully analyzed and are within the scope of the existing Environmental Assessment. We have developed an errata sheet to amend the EA based on past public comment and solicit public comment on the errata sheet as well as on the rule. Several commenters noted that the proposed rule and the EA falsely outlined the required "No Action" alternative as immediate closure of all fisheries. NPS Response: We recognize that the designation of the No Action alternative as an alternative that involved immediate closure of all park waters to fishing was confusing to the public because No Action alternatives typically reflect the status quo, which-from a fisherman's viewpoint-would be the continuation of commercial fishing throughout the park's marine waters. However, the No Action alternative- required in all EA or EIS processes- actually requires description and analysis of what would occur under the existing "status quo" of federal laws and regulations. This meant that the "No Action" alternative-given the existing NPS general regulatory prohibition on commercial fishing in the park and the statutory prohibition on commercial fishing in designated wilderness areas- actually described closure of all of the park's marine waters to commercial fishing. In any event, Congress has now twice enacted legislation since the original EA was prepared which further clarified the status of various fisheries in Glacier Bay National Park as a matter of federal statutory law. Resource Issues Almost all comments received in support of reducing or eliminating commercial fishing in park waters cited natural resource concerns. Numerous commenters indicated that the NPS is charged with maintaining naturally functioning ecosystems and should not allow commercial fishing because the agency has not proven that such activities do not harm park values. Commenters felt that commercial fishing could result in depletion of fish stocks with concurrent food web effects that might impact other parts of the marine ecosystem. Several individuals commented that commercial fishing activities might alter natural population dynamics even if stocks remained healthy. Numerous individuals cited examples of the effects of overfishing elsewhere in the United States and expressed concern that overharvests could occur in Glacier Bay. A number of commenters indicated that NPS should not allow specific fisheries such as purse seining or scallop dredging. Other.resource concerns expressed included potential bycatch effects, water pollution, marine mammal and gear entanglement, vessel-related impacts to the marine system, or impacts to specific species (harbor seals, sea otters. common murre, Kittlitz murrelet, glacier bear, tufted puffin) . On the other hand, almost all comments received from individuals in support of ongoing fisheries indicated that there was no evidence that commercial fisheries resulted in long- term biological harm. These individuals stated that park fisheries have been sustained for over 100 years with no observable biological harm. NPS Response: We acknowledge the State's expertise and experience in managing fisheries in Southeast Alaska, as well as the strong conservation ethic 41866 Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules of Alaskan fishermen. The State is charged with managing fisheries to maintain sustainable yield. The NPS must manage its lands and waters in a manner that leaves all resources unimpaired. Both of these management approaches are embraced by the Act, as amended, which essentially allows commercial fisheries to continue under the management regime of the State in the outer waters of the park, while establishing a more protective fisheries management regime within Glacier Bay proper. Many individuals felt that the resource impacts of other commercial ventures (i.e., cruise ships, other tourist operations) in Glacier Bay were likely far greater than commercial fishing impacts. A few individuals believed that logging and mining are precluded from National Parks because they do impact resources while commercial fishing does not. NPS Response: We analyzed the potential effects of vessel traffic, both commercial and personal, in the 1996 Vessel Management Environmental Assessment and Plan. Based on this assessment, we outlined strict vessel quotas, defined vessel operating conditions, and developed mitigation measures designed to ensure that park resources are not impaired by vessel traffic. Importantly, the NPS has a dual mandate to protect park resources while providing visitors the opportunity to see and learn about parks. Vessel access is the primary means by which the public visits Glacier Bay National Park. In general, commercial ventures associated with providing visitor services-such as cruise ship and tour boat operations and kayak concessions in Glacier Bay-are permitted in national parks, while other commercial ventures-in particular, those that remove resources from park areas for profit-are deemed inappropriate. Several commenters noted that most of the fish species harvested in Glacier Bay were migratory (salmon, halibut, lingcod) and consequently were not "park resources"; a few commenters indicated that 98% of the salmon caught in Glacier Bay were hatchery raised fish and were not park resources. NPS Response: Salmon, halibut and lingcod have been documented to range widely and may move in and out of park waters throughout their life span. However, National Parks consider fish and wildlife species to be park resources during their period of residence within park boundaries and manage them as such, regardless of their place of origin or primary area of residency. We do not believe that there are definitive research results available regarding the percentage of hatchery-raised fish using-or caught in-park waters. We have found no data to verify the claim that 98% of salmon caught in Glacier Bay are hatchery-raised; this figure appears to be a misinterpretation of coded wire tag data collected by ADFG. In any event, Congress has resolved the debate over whether salmon should be considered "park resources" by passing the Act, as amended, and assigning the Secretary of the Interior/NPS the responsibility of developing grandfather criteria for lifetime fishing permits in Glacier Bay proper and enforcing a winter king salmon trolling season as well. Cultural Issues Many commenters, both Native and non-Native, expressed concern about how the proposed regulations would affect Native fishing activities in park waters. Many commenters, including NPCA supported some form of ongoing Native fisheries including commercial, subsistence, and an undefined "Native fishery." These individuals cited several reasons for supporting ongoing Native fishing including: it is a basic Native right; the Tlingit people have harvested fish with limited impact to the environment; and it is important to preserve cultural traditions, maintain the economic viability of Native villages, and continue Native people's connection to resources. Several commenters remarked that commercial fishing and subsistence activities were tightly linked for Native peoples. These individuals felt that reducing opportunities for commercial fishing would reduce subsistence products available in Tlingit households. One commenter noted that Tlingit traditional fishing is protected by treaty. One commenter indicated that wilderness water closures eliminated access to waters traditionally used by the Hoonah hand-trolling fleet. A few individuals commented that they did not support ongoing Native fisheries because all people must learn to adapt to change. One commenter thought that fishery closures would protect the Tlingit homeland and therefore protect Native culture. The State expressed concern that Tlingit historical activities are being ignored and that the residents of other local communities have a cultural and historical dependence upon the Glacier Bay area. They further indicated that NPS's intention with regard to the proposed cultural fishery is unclear. NPS Response: This issue is generally beyond the scope of this rulemaking which concerns implementation of congressional requirements for commercial fishing activities within the park and the development of appropriate criteria for lifetime nontransferable fishing permits for Glacier Bay proper. That said, we recognize that the Tlingit people have fished the waters of Glacier Bay and Icy Strait for many generations and are intimately connected to both the fish resources and the park itself. Similarly, for over a century, non-Native peoples of Southeast Alaska have come to rely on the waters of the park for sustenance. We recognize that the park represents more than just an economic resource for these groups-it is a place of cultural identity. The Act provisions that authorize lifetime tenancy and continued fishing in outer waters will, to some extent, preserve both Native and non-Native cultural ties to most of Glacier Bay National Park. Moreover, nothing in these regulations or the Act preclude fishermen from participating in other authorized activities inoluding sport or personal use fisheries, or visiting and enjoying the park for other reasons. We cannot legally provide differential commercial fishing opportunities for Natives and/or local peoples and The Alaska National Interest Lands Conservation Act (ANILCA) does not authorize Title VIII subsistence activities in Glacier Bay National Park. However, we signed a Memorandum of Understanding with the Hoonah Indian Association (HIA). the federally recognized tribal government, in 1995 which commits NPS and HIA to work together on numerous issues of mutual concern regarding Glacier Bay National Park. We have initiated several ongoing projects and programs designed to maintain and strengthen Tlingit cultural ties to Glacier Bay and to perpetuate important cultural traditions. As part of this effort, we intend to pursue the development of a cultural fishery for the local Tlingit community in cooperation with the HIA and the State. This cultural fishery will allow the Tlingit people to maintain a cultural tradition established by their ancestors that they can pass on to future generations. Visitor Issues Many commenters expressed concern that commercial fishing activity, including vessel disturbance and potential ecosystem changes, could affect visitors' experience of Glacier Bay. Many of these individuals felt that commercial fishing vessels destroyed the solitude and serenity of park waters. Several past visitors cited specific instances of having been disturbed by commercial fishing vessels or gear. Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41867 On the other hand, many individuals in support of commercial fishing indicated that park visitors enjoyed seeing and learning about commercial fishing. These commenters cited specific examples of passengers on tour boats and cruise ships photographing commercial fishing vessels. Two kayak concessionaires in the park indicated that they had never received complaints from their clients about commercial fishing in park waters. Several commenters explained that many of the fisheries took place during a time period when few visitors were present (i.e., Tanner crab season in February) or in areas where few visitors were present (i.e., the outer coast). Several commenters felt that the presence of commercial fishing vessels enhanced visitor safety for boaters, kayakers, and airplane passengers. One commenter expressed concern that trolling activities were a navigational hazard, particularly in Glacier Bay. One commenter felt that commercial fishing was, in and of itself, a valid way to visit the park. Many commenters described their commercial fishing trips in Glacier Bay as an experience beyond simple economic gain. NPS Response: We recognize that park visitor opinion on commercial fishing. as with most issues, differs. For some park visitors. seeing and learning about commercial fishing is an important part of their experience in Glacier Bay. Others wish to have park experiences less influenced by human contact. The Act, as amended, attempts to balance this spectrum of visitor interests by authorizing ongoing fisheries in the park's outer waters while designating certain areas- including five wilderness water areas, and in Glacier Bay proper, the upper west arm, the upper east arm, and Geikie Inlet-as closed to commercial fishing. Some of these areas are already closed to motorized traffic under the park's 1996 Vessel Management Plan regulations. Congress also set in motion a process for limiting and phasing out commercial fishing in the rest of Glacier Bay proper through the use of grandfathered nontransferable lifetime permits to qualified fishermen in the three authorized commercial fisheries. We believe that this mixture of closed and open areas will provide diverse visitor experience opportunities; we anticipate few if any new visitor concerns regarding commercial fishing in Glacier Bay under this rule. Marine Reserve Numerous individuals supported the concept of providing a marine reserve in Glacier Bay where commercial fishing would be prohibited. Over 200 scientists signed a petition called "Protecting Marine Life in Glacier Bay National Park" which called for the closure of all commercial fishing in Glacier Bay and the establishment of a marine reserve. The Center for Marine Conservation, the Marine Conservation Biology Institute and several individual commenters cited benefits of protected zones including: they may serve as refugia when regional fisheries management fails; they provide a naturally functioning ecosystem for scientific study; they conserve marine species; they enhance non-consumptive uses of the park; and they benefit commercial, recreation, and subsistence fishing outside protected area. One commenter noted that Alaska has 150% more coastline than the rest of the United States, but only one small marine reserve. On the other hand, several commercial fishermen believed that the wilderness area closures would serve as adequate marine reserves. A few commenters indicated that there was little evidence that marine reserves were beneficial. One commenter indicated that outer coast waters were essentially "no-take" areas for much of the year as salmon trolling is limited to one week in July within one mile of shore. NPS Response: This issue is beyond the scope of this rule which implements congressional requirements for commeq::ial fishing activities in the park and deals with criteria for nontransferable lifetime fishing permits for Glacier Bay proper. Nevertheless, we acknowledge that interest in no-take marine reserves is growing worldwide. Researchers and managers note numerous benefits of areas where limited or no resource extraction takes place including: opportunities for research, preservation of marine species and naturally functioning ecosystems, preservation of biological and genetic diversity, enhanced non-consumptive activities, and potential benefits to fisheries outside the no-take area. The Act, as amended, went far toward establishing no-take marine reserves in Glacier Bay proper by closing several areas to all commercial fishing. Although sport and personal use fisheries continue to be authorized in these areas, very little participation is expected to occur in these areas. The wilderness waters of the Beardslee Islands, Adams Inlet, Hugh Miller Complex, and Rendu Inlet-and portions of Muir Inlet-are closed to motorized traffic during the visitor season and hence receive very little, if any, sport fishing pressure. As a result, the areas closed to commercial fishing by the Act will virtually be no-take areas by default. These areas will allow unparalleled opportunities-previously non-existent in Alaska and rare in northern latitudes worldwide-for researching the effects of marine reserves. The particular elements of a marine reserve research program for Glacier Bay proper will be developed cooperatively with the State of Alaska as required. Research Numerous commenters in support of reducing or eliminating commercial fishing in park waters indicated that as a national park, Glacier Bay could serve as an unfished control area, thus providing a unique baseline for future research. Several commenters indicated that one important value of "no-take" marine reserves was the opportunity to compare fished and unfished areas and apply this knowledge to the management of ongoing fisheries. Several commenters felt that NPS should monitor any ongoing fisheries carefully to ensure sustainability and compatibility with park values. A few commenters suggested specific studies including bycatch studies, stream colonization processes, and the effects of fishing on fish, marine mammals, birds, and benthic communities. Several commenters felt that the cooperatively developed fisheries management plan for Glacier Bay should outline cooperative research projects that would be coordinated with existing agencies and agreed to by a joint management board. A few commenters including NPCA recommended that NPS pursue additional funding to support ongoing research needs. The Alaska State Legislature recommended that NPS define what is meant by cooperative research and outline a peer review process and quality standards. The State indicated support for a cooperatively designed research program. Numerous commercial fishermen indicated that ongoing fisheries would not preclude research and would in fact support research because fishermen could provide valuable information on harvest. Several commenters opposed the Dungeness crab research project proposed in the 1997 draft regulations because it involved private profit from sale of crabs caught; other commenters opposed the halibut study outlined in the preamble of the proposed regulations because it would involve closing a valuable fishing area. AT A commented that they did not support additional closures beyond those described in the Act for research purposes. Several commenters expressed concern about the USGS BRD 41868 Federal Register /Vol. 64, No. 147 /Monday, August 2, 1999 /Proposed Rules crab and halibut studies, indicating that they may not be accurate and unbiased. PVOA believed that research at Glacier Bay would not be applicable to other areas of Southeast because park ecosystems were newly deglaciated and were therefore not representative of other Southeast ecosystems. NPS Response: We believe that the commercial fishing closures described in the Act, as amended, will provide unique opportunities to compare fished and unfished areas. The specific elements of a research program for Glacier Bay will be cooperatively developed with the State of Alaska as required by section 123{a)(1) of the Act. We look forward to developing a cooperative research program with ADFG and others and envision that, while each agency will likely pursue agency-specific research questions, cooperative studies will be designed to address questions of mutual interest. Development of a cooperative program will also benefit from the input of other stakeholders, in particular, local fishermen who remain fishing in Glacier Bay. We acknowledge that much important information can be gleaned from fishermen's logs as well as from fishermen's traditional knowledge. Importantly, we would like to work with ADFG, IPHC and fishermen to develop better harvest tracking mechanisms for the park. Phase-Out Period Most comments received discussed the phase-out of commercial fishing in Glacier Bay proper. Many individuals supported the preferred alternative's phase out period of 15 years. Many commenters supported a shorter phase- out period; recommendations included 7 years (including Sierra Club recommendation), 3-5 years, and 2-4 years. One commenter recommended a 30-year phase-out. Many individuals indicated that commercial fishing should be prohibited immediately in all park waters with no phase-out period. Commenters who supported a phase-out typically indicated that this time period would allow local communities to transition from fishing to a different economy and for fisherman to be retrained for other occupations while ultimately protecting the marine resource. Individuals who recommended a shorter or no phase-out period typically expressed concern that irreversible resource impacts could occur during the phase-out period and/ or fishing constituencies would work to overturn decisions regarding fishing closures during that period. The Wilderness Society stated that NPS must show that ongoing fisheries would not compromise resources during the phase-out. Conversely, many commenters recommended at least lifetime tenancy for fishermen with a history of fishing in Glacier Bay or no phase-out at all. Many of these individuals indicated a phase-out even for the period of their lifetime was unfair because it would preclude fishermen's children and grandchildren from "inheriting" the right to fish in Glacier Bay. NPS Response: The Act, as amended, grants qualifying fishermen a non- transferable permit for lifetime access to an authorized Glacier Bay proper commercial fishery. Thus, the question of the duration of any phase-out has now been resolved by Congress. We expect that this condition will result in gradual attrition from the commercial fisheries as fishermen retire. At some point in time {likely decades off), all commercial fishing in Glacier Bay proper will cease following the retirement of all fishermen qualified to continue to fish under section 123 of the Act, as amended. Life tenancy will allow individual fishermen with a sufficient history of fishing in Glacier Bay proper to continue harvesting fish and will provide a long time period for communities to make the transition to a different based economy. Displaced Fishermen NPS received many comments that expressed concern that fisheries closures would displace fishermen to other areas impacting the displaced fishermen, other fishermen already fishing those areas, and processors. The State disagreed with NPS's assumption as presented in the EA for the halibut and salmon fisheries that displaced fishermen can be redistributed to other areas without significant impact to their economic well being. Commenters indicated that displaced fishermen would potentially have to travel farther from their home port increasing travel costs (fuel, ice, insurance) and would be less productive in fishing new areas they weren't familiar with. Several commenters also indicated that fishermen already in the areas Glacier Bay fishermen were displaced to would be impacted because of increased fishing pressure. Several individuals indicated that concentrating fishermen could result in resource depletion in those areas and/or state mandated gear or harvest reductions to preclude resource depletion. A few individuals were concerned that increased concentration of fishermen in smaller areas could increase the risk of collision, entanglement, etc. Several commenters indicated that fishery closures in Glacier Bay would force small boats to fish outer waters, which they are not equipped to do. A few commenters felt that closures of outer waters could displace fishermen to the Gulf of Alaska exposing them to more severe weather with limited anchorages. A few commenters indicated that displaced Glacier Bay fishermen could impact subsistence, personal use or recreational fisheries if they were forced to move into areas used for these fisheries. NPS Response: We expect that few fishermen will be displaced outside of park waters because: (1) The Act, as amended, authorizes ongoing commercial fisheries in outer waters where well over 80% of historic harvest from the park has occurred; (2) the Act requires that any Dungeness crab fishermen compensated retire their limited entry permits (and pots) from the fishery; {3) the Act provides for life tenancy for qualifying fishermen in Glacier Bay; and (4) these regulations outline relatively lenient and inclusive eligibility criteria for the authorized fisheries in Glacier Bay proper. Compensation NPS received several general comments indicating that individuals and communities should be compensated for revenue lost due to fisheries closures. Several commenters recommended that all fishermen displaced from wilderness waters be compensated regardless of their fishery. A few individuals stated that deckhands/crewmembers should be compensated; one commenter recommended that crew should be compensated at the standard crew share of 10-12% of the permit holder's settlement. Several commenters indicated that processors should be compensated. The State provided a list of adversely affected entities who should be considered for compensation including commercial fishery entry permit holders, vessel owners, crewmembers. seafood processors, the State, communities and fishermen who have not historically made landings in Glacier Bay but will be impacted by increased competition or loss of opportunities. A few commenters recommended compensation strategies that included providing business opportunities for displaced fishermen, providing job training or education tuition, and unspecified financial compensation. One commenter felt that NPS should pay displaced fishermen an average of their gross yearly take for life and compensate fishermen's children and grandchildren similarly. The Alaska Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41869 State Legislature recommended that a bipartisan effort be initiated to seek additional compensation funds for deckhands and communities impacted by fishery closures. Several commenters indicated that compensation for displaced fishermen was inappropriate. These individuals offered that "nothing is guaranteed for life.'' Several individuals felt that the government should not financially compensate individuals who had been making a living from a public resource. One commenter indicated that the compensation package for Dungeness crabbers should be cut in half. A few individuals offered that the government should not compensate Dungeness crabbers because sea otters moving into crabbing areas would have eventually reduced crab harvest. Several commenters indicated that fishermen should compensate the American public for past use of public resources. NPS Response: In May 1999 Congress passed section 501 of the 1999 Emergency Supplemental Appropriations Act that significantly expanded federal compensation available for commercial fishermen, communities and others who are directly affected by fisheries closures within Glacier Bay. We are working closely with the State of Alaska to implement this additional $23 million compensation program as rapidly and as prudently as possible. The Act passed by Congress in October 1998, as amended, also authorized a compensation program specific to Dungeness crab commercial fishermen who fished in the Beardslee Island or Dundas Bay wilderness waters for at least 6 of 12 years during the period 1987-1998. We are currently administering this compensation program and several fishermen have received compensation. The State urged NPS to publish a formal rulemaking, which clarifies all aspect of the Dungeness crab buyout program. They further urged that an affidavit be sufficient to establish qualification for the buyout program. The State clarified that the State does not intend to participate actively in the permit relinquishment process whereby Dungeness crabbers would relinquish their Dungeness crab permit. Last, the State indicated that it was not clear how NPS intended to calculate fair market value of vessels and gear and urged NPS to be as lenient as possible. One commenter stated that the application period for Dungeness crab compensation process should be extended because all permit holders were not contacted. NPS Response: A formal rulemaking process to complete the Dungeness crab compensation program, as described by the Act, as amended, is neither required nor warranted. A new rulemaking on the Dungeness crab fishery would take months to complete and actually serve to delay compensation of qualifying fishermen. Moreover, the Act, as amended, imposes strict timeframes for completion of the compensation program. Fair market values for vessels, gear and permit, where needed, will be carefully determined with assistance of professional appraisers. Following passage of the 1998 Act, notice of the compensation program was provided to all 1,400 individuals who had provided comment or participated in workshops, described in extensive media coverage of the Act, and published in the Federal Register. More recently, as part of the May 1999 amendment to the Act, Congress changed the eligibility criteria and extended the application period for the Dungeness crab fishery compensation program. Notice of these changes was published in the Federal Register (64 FR 32888, June 18, 1999) and subsequently mailed to every permit holder in the Southeast Alaska Dungeness crab commercial fishery. Safety Several commenters expressed concern that smaller boats that typically fished Glacier Bay proper could not safely fish outer waters if they were displaced. A few commenters expressed concern that fishery closures on the outer coast would preclude use of the bays and protected anchorages during inclement weather. The AT A expressed concern that the ability of fishermen to seek safe harborage would be impacted if they had to receive permission from the superintendent for it. The State requested that the language providing for safe harborage in the 1997 rulemaking preamble be included in the body of subsequent rulemaking. NPS Response: We expect that relatively few fishermen will be displaced and little crowding will occur based on the conditions outlined in the Act (continued fishing in outer waters/ life tenancy for qualifying fishermen in Glacier Bay proper) and the relatively lenient and inclusive eligibility criteria described in this rule for the authorized Glacier Bay proper fisheries. Moreover, nothing in this rulemaking, existing park regulations, or the Act would affect the ability of fishermen or other vessel operators to seek safe harbor at any time within the park under hazardous weather or sea conditions, when experiencing mechanical problems, or in other exigent circumstances. Personal Use, Subsistence and Sport Fishing One commenter felt that NPS should continue to provide for personal use fisheries. Several commenters indicated that NPS should provide for subsistence fishing. Many commenters indicated that it was unfair to preclude commercial fishing while allowing guided sport fishing to continue. The State offered that NPS rulemaking should not restrict the State's ability to manage personal use fisheries. They further indicated that subsistence and personal use fisheries have occurred within park boundaries for many years and are not limited to residents of particular communities or areas. And they indicated that residents of Hoonah are authorized to participate in these fisheries in Glacier Bay, as are residents of other communities. NPS Response: Nothing in these regulations on grandfather criteria for lifetime permits for commercial fishing in Glacier Bay proper alters or supercedes existing authorities for personal use or sport fisheries. Existing personal use and sport fishing opportunities will continue consistent with NPS and non-conflicting state regulations. ANILCA specifically authorizes sport fishing in the park; ANILCA does not, however, authorize any Title VIII subsistence activities, including subsistence fishing, in Glacier Bay National Park. We have proposed to the State that all fisheries in Glacier Bay National Park-including authorized commercial, sport and personal use fisheries-be addressed in the cooperatively d~veloped fisheries management plan. Environmental Assessment While several commenters noted that portions of the Environmental Assessment were inaccurate, very few comments (with the exception of the State, AT A, PVOA and one individual commenter) provided specific details on which information and/or analysis was incomplete or inaccurate. Several commenters in support of ongoing fisheries felt that, in general, the EA overstated the impacts of commercial fishing on park resources and visitors and understated the effects of closures on fishermen and the local economy. NPS Response: We acknowledge that commenters provided valuable information with which to improve the analysis presented in the Commercial Fishing Environmental Assessment. Specific comments, particularly regarding economic effects have been incorporated within the context of the Regulatory Flexibility Analysis 41870 Federal Register /Vol. 64, No. 147 /Monday, August 2, 1999 /Proposed Rules presented below. Specific comments associated with biological issues will be addressed in the fisheries management plan. Notwithstanding these specific comments, we believe that the document, with an errata sheet, is balanced and fairly reflects the mix of potential effects associated with continued authorized commercial fishing activities and/or closures. A few commenters believed that the EA described potential impacts that were unlikely to occur and implied that commercial fishing vessels are the sole or main source of vessel effects on marine and terrestrial systems when in fact they are a minor component of vessel traffic in Glacier Bay. A few commenters offered that preparing separate environmental documents for commercial fishing, sport fishing, vessel management, new park infrastructure, etc. does not allow the public to see the "whole" picture or to understand the cumulative effects of these activities. NPS Response: One purpose of an Environmental Assessment is to outline all the potential social and biological effects of a proposed federal action. Consequently, the Commercial Fishing Environmental Assessment described the potential effects of commercial fishing on the human and biological environment in and near Glacier Bay National Park. We determined that the commercial fishing issue and associated analysis should be addressed separately from other related issues including vessel management (addressed in the 1996 Vessel Management Plan and Environmental Assessment) and other ongoing fisheries (which will be addressed in the cooperatively developed fisheries management plan). The cumulative impacts section of the Commercial Fishing Environmental Assessment was provided to assist the public in placing this issue within the context of other related park actions and programs. Moreover, many of the original issues addressed in the 1997 proposed rulemaking and its accompanying EA have now been definitively resolved by Congress in the Act, as amended, and are no longer discretionary Federal actions requiring the same scope of NEP A analysis as before. Section by Section Analysis The regulations in this section implement the statutory requirements of section 123 of the Omnibus Emergency and Supplemental Appropriations Act for FY 1999 (the "Act") (Pub. L. 105- 277), as amended by section 501 of the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-31). Where possible, the language used in this section of the regulations mirrors the language used in the Act, as amended. Section 13.65(a)(l) of the regulations provides definitions for the terms "commercial fishing", "Glacier Bay" and "outer waters." The definition for "commercial fishing" is the same as used for the park's vessel regulations in section 13.65(b) of Title 36 of the Code of Federal Regulations. The terms "Glacier Bay" and "outer waters" are used in these regulations to describe marine water areas of the park that are to be regulated differently under requirements of the Act, as amended. The definition for "Glacier Bay" mirrors the definition for "Glacier Bay Proper" that is provided in section 123(c) of the Act. This definition is essentially the same as that provided in the park's vessel management and resource protection regulations found at section 13.65(b)(1) of Title 36 of the Code of Federal Regulations. The term "outer waters" is used to describe all of the marine waters of the park outside of Glacier Bay proper. This includes areas of Icy Straits, Cross Sound, and coastal areas on the Gulf of Alaska running from Cape Spencer to Sea Otter Creek, beyond Cape Fairweather. Section 13.65(a)(2) of the regulations provides authorization for commercial fishing to continue in some of the non- wilderness marine waters of the park, as specifically provided for by the Act. The Act calls for the State of Alaska and the Secretary of the Interior to cooperatively develop a fisheries management plan for the regulation of commercial fisheries in the park. We anticipate that the fisheries management plan will reflect the requirements of the Act and other applicable federal and state laws, as well as international treaties, and serve to protect park values and purposes, prohibit new or expanded commercial fisheries, and provide opportunity for the study of marine resources. This authorization for commercial fishing supercedes the general regulatory prohibition on commercial fishing in the park found at 2.3(d)(4) of this chapter. The authorization does not, however, exempt commercial fishing activities from other park regulations and programs in place to protect park resources and visitor use opportunities. Commercial fishing activities are to be conducted and managed in concert with park purposes and values. Section 13.65 (a) (3) of the regulation reaffirms the statutory closure of marine wilderness waters as required by the Wilderness Act and restated by section 123(b) of the Act. Two recent federal court decisions have made clear the statutory prohibition on most commercial activities-including commercial fishing-in designated wilderness areas. Section 13.65(a)(4) of this regulation affirms that, consistent with the requirements of Section 123 (a) (1) of the Act, commercial fishing is authorized in the marine outer waters of the park subject to a cooperatively developed State/Federal park fisheries management plan and applicable federal and non-conflicting state laws and regulations. Section 13.65(a)(5) describes specific requirements and limitations on commercial fisheries in Glacier Bay proper, consistent with the Act, as amended. Section 13.65 (a)(S)(i) of the regulation limits Glacier Bay proper commercial fisheries to longlining for halibut, pot or ring net fishing for Tanner crab, and trolling for salmon. These are the only commercial fisheries authorized to continue in Glacier Bay proper. Section 13.65(a)(S)(ii) of the regulations limits participation in the authorized Glacier Bay proper commercial fisheries only to individuals who have a nontransferable lifetime special use permit for access to the fishery issued by the Superintendent. This section clarifies that the requirement for this lifetime special use permit is not currently scheduled to go into effect until January 1, 2000. The delayed implementation date is intended to provide adequate opportunity for the public to comment on this rule, to review those comments and make any adjustments to the rule as may be warranted, and to allow sufficient time for fishermen to apply for and receive the access permits before a permit requirement is put into effect. This section also makes clear that the permits are non-transferable-reflecting the language and requirements of the Act. However. if a temporary emergency transfer of a permit is approved by CFEC due to illness or disability of a temporary, unexpected and unforeseen nature, we will also consider issuing a temporary special use permit transfer for the period (generally, a year or less). Section 13.65(a)(S)(iii) describes how to apply for a special use permit for access. Subsection (A) restates the Act in requiring an applicant to possess a valid commercial fishing permit for the district or statistical area encompassing Glacier Bay proper. Subsection (B) outlines the specific eligibility requirements that must be met to obtain a special use permit for access to the Glacier Bay fisheries. These eligibility criteria have undergone a Regulatory Flexibility Act analysis, and have been determined to meet the goals of this regulation, while seeking to minimize Federal Register /Vol. 64, No. 147 /Monday, August 2, 1999 /Proposed Rules 41871 impacts to commercial fishermen and other affected small businesses to the extent consistent with the Act, as amended. A 12-month application period to obtain a special use permit for access is described; conclusion of the eligibility determinations by October 1, 2000 may be important to completion of the $23,000,000 compensation program authorized by Congress in the 1999 amendment to the Act. This subsection also outlines the specific type of documentation that an applicant must provide to the Superintendent to obtain an access permit. The Act requires fishermen to provide a sworn and notarized affidavit describing their particular history in one or more of the three authorized commercial fisheries. NPS will provide a simple affidavit form to applicants upon request. The Act also requires applicants to provide other available documentation that corroborates their history of participation in the fishery. Licensing and landing histories-two types of readily available corroborating documentation-are required by this regulation. A certified printout of a fisherman's licensing history in a fishery is available at no charge from the CFEC. The licensing history corroborates participation in the fishery during the qualifying years. Landing reports, documenting a fisherman's harvest activities in a specific commercial fishery by year and location, are available at no charge from the ADFG. A form is required from ADFG to obtain this information. We are aware of the limitations of some landing data-there is, for example, no separate statistical reporting unit for Glacier Bay for salmon trolling. Accordingly, we intend to consider salmon landing reports for District 114 as indirect evidence of participation in the Glacier Bay fishery; this indirect evidence must be supported by additional corroborating documentation. For the halibut and Tanner crab fisheries, because specific reporting areas are described for Glacier Bay, additional corroborating documentation will be required where landing data are not conclusive. In any event, landing reports must be for the reporting area immediately adjacent to Glacier Bay to be considered. Finally, subsection (C) describes the delivery address to apply for an access permit, and subsection (D) clarifies that the Superintendent will make a written determination and provide a copy to the applicant. Fishermen will be afforded opportunity to provide additional information, as warranted or needed. We anticipate that it could take 30 days or more to process and respond to an application, depending on the volume and completeness of the applications received. For this reason, fishermen are advised to apply at least 30 days in advance of anticipated fishing activities in Glacier Bay proper that will require a special use permit. Subsection 13.65(a)(5)(iv) describes special use permit denial and appeal procedures for an applicant. These procedures are similar to those in place for other NPS permit programs in Alaska. Subsection 13.65(a)(5)(v) makes clear that the special use permits for access to the Glacier Bay proper commercial fisheries are renewable for the lifetime of an access permit holder, provided they continue to hold a valid commercial fishing permit and are otherwise qualified to participate in the fishery. We expect to reissue the special use permits for access on a five-year cycle. This will provide a recurring opportunity to update the list of fishermen authorized to commercial fish in Glacier Bay. NPS will not charge a fee for these special use permits. No special use permits will be required to participate in commercial fisheries otherwise authorized in the marine waters of the park outside Glacier Bay. Section 13.65(a)(5)(vi) describes non- wilderness areas closed to commercial fishing within Glacier Bay proper, as required by the Act, as amended by section 501 of the 1999 Emergency Supplemental Appropriations Act (May 21, 1999). The 1999 amendment delays implementation of these non-wilderness closures during the 1999 fishing seasons with respect to the commercial halibut and salmon troll fisheries. Wilderness areas remained closed to all commercial fishing under the 1999 amendment, with no delay in implementation; these closures were put into effect by NPS on June 15, 1999. NPS will provide detailed maps and charts depicting these non-wilderness and wilderness closures to every fisherman who receives a special use permit for access to the three authorized Glacier Bay proper commercial fisheries. Subsection (A) describes the general closure of the west arm of Glacier Bay to commercial fishing, with the exception of trolling for king salmon during the State's winter season troll fishery. Subsection (B) implements the closure of Tarr Inlet, Johns Hopkins Inlet, Reid Inlet, and Geike Inlet to all commercial fisheries. These closures include the entirety of each of these inlets, as depicted on the maps and charts available from the Superintendent. Subsection (C) closes the east arm of Glacier Bay north of a line drawn across the mouth of the arm from Point Caroline through the southern point of Garforth Island to the east shore mainland. The Act provides an exception to this prohibition that allows trolling for king salmon during the State's winter troll fishery "south of a line drawn across Muir Inlet at the southernmost point of Adams Inlet.'' This line is described in this subsection as 58° 50'N latitude, a description more readily understood by commercial fishermen. Drafting Information The primary authors of this rule are Randy King, Chief Ranger, Glacier Bay National Park and Preserve; Mary Beth Moss, Chief of Resource Management, Glacier Bay National Park and Preserve; and Donald Barry, Assistant Secretary of the Interior for Fish and Wildlife and Parks. Other key contributors include Molly Ross, Special Assistant to the Assistant Secretary for Fish and Wildlife and Parks; Marvin Jensen and John Hiscock of the National Park Service. Compliance With Other Laws Regulatory Flexibility Act Under the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq., we have prepared an initial regulatory flexibility analysis on the expected impact of this rule on small business entities and have determined that the rule will have a significant economic effect on a substantial number of small entities. With this rule we are establishing eligibility requirements and application procedures for obtaining a special use permit for lifetime access to the three commercial fisheries authorized in Glacier Bay proper. At issue is the effect that fishing eligibility restrictions in Park waters would have on numerous individuals and several communities. Commercial fishing is one of the largest employers in Southeast Alaska. The majority of private sector income in the Southeast is derived from the seafood industry, and the economic effect of these fisheries extends throughout Southeast Alaska and the State. Local fishing village governments are supported by commercial fishing, and in some cases depend on raw fish taxes. Restricted eligibility would not only directly affect fishermen unable to meet the participation criteria, but is also likely to affect deckhands, vessel owners, processors, other local business that either directly or indirectly support and are supported by the commercial fishing industry, and village governments. In designing the eligibility criteria, we attempted to minimize the economic 41872 Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules impacts to fishermen, communities, and others associated with the commercial fishing industry. The Act authorizes existing commercial fisheries to continue in outer waters where it is estimated that over 80% of the harvest from Park waters occurs. Additional harvest will continue in most of Glacier Bay during the life tenancy period of qualifying fishermen, supporting fishermen and communities over the course of the current generation. About 18% of the Park's marine waters (wilderness and non-wilderness) will be closed immediately to commercial fishing. These closed waters have historically accounted for approximately 10% of total biomass harvested in the Park. Within Southeast Alaska, the Bay has historically accounted for only 2-4% of the commercial halibut harvest; approximately 7-12% of commercial Tanner crab harvest; and an indeterminate, but presumably small percentage of the salmon harvest. 1 We expect that some portion of the revenue previously harvested in the closed areas of the Park will be recovered in Cross Sound and Icy Strait and/or other Southeast waters. This is particularly likely for fishermen pursuing highly migratory species like halibut and salmon. The stocks of these species do not confine themselves to the Bay. They move throughout the local aquatic environment, and fishermen are used to pursuing them more widely. Halibut fishermen operate under an individual quota system and with a fairly lengthy (8-month) fishing season. They should be able to select time and fishing location to achieve their quotas, avoiding the excessive costs and competitive pressures created by derby fishing conditions. Despite the fact that salmon are less broadly distributed in space or in time than halibut, most displaced salmon trollers (power and hand) are likely to be able to recoup the harvest lost from Glacier Bay proper. However, small hand troll operators will probably encounter increased safety risks and other increased costs due to more exposed weather conditions and associated reduced access to migratory king salmon. The governing conditions are less accommodating for Tanner crab fishermen. Tanner crab fishing grounds are fully utilized with few, if any unexploited areas. Displaced Tanner fishermen are unlikely to recover their lost harvest. In addition, although fishermen who do not meet the eligibility criteria will be displaced or excluded from the Bay, the above statistical data on the distribution of harvests from Park waters suggests that most fishermen who operate in Park waters are not heavily dependent on Glacier Bay proper fisheries. The data indicate that most of these fishermen have been harvesting fish and earning revenues outside the Bay. Moreover, in the Act and amendments thereto, Congress provided for compensation to affected communities and individuals. Based largely on data collected by the Commercial Fisheries Entry Commission (CFEC) and two studies conducted by Jeff Hartman, Alaska Department of Fish and Game (Hartman 1998 and 1999), we estimate that the economic effects of the eligibility conditions established in the interim rule (direct, indirect, and induced) have a present value of $9.2M (1997$). • The estimate is inclusive, covering losses of income to fishing permit holders, vessel owners, crew members, seafood processing firms and their employees, local businesses and communities, and the State. The restrictions on fishing may also diminish property values (fishing vessels and gear; real estate and other investment capital), but no estimate was made of these losses. • The estimate is conservative. With unemployment in the local communities already higher than the State average, employment opportunities are limited. The NPS assumed that for many of the affected individuals the income losses would be perpetual. This and other assumptions explained below lead to an overestimate of the effects of the rule. The Commercial Fisheries Entry Commission (CFEC) maintains detailed, annual information on permit holders, including size, location, and value of catch (gross earnings). There are two problems with the harvest reporting system which preclude using these data alone to estimate the economic effects of limiting access to the fisheries in the Bay: • The earnings information is gross, not net. • The statistical areas for which data are reported frequently do not coincide with Park boundaries, making it difficult to apportion harvest to Park waters. Fortunately, in 1994, Hartman conducted an in-depth survey of permit holders, vessel owners, crews, and processing firms and their workers, collecting detailed cost information (Hartman 1998). This survey information allows one to estimate net income and profits for the various groups. In 1999, Hartman utilized the information and results of his 1994 survey in conjunction with decadal (1987-96) CFEC data on harvests size and value, location of catch, and permitee participation by venue to estimate the losses associated with phasing out commercial fishing at Glacier Bay (Hartman 1999). Hartman found that the present value of losses in income to the fishing industry and communities in Southeast Alaska ranged between $16M and $23M (1997$). These estimates do not include diminutions in the value of assets, but they do account for: • All regional income losses (direct, indirect, and induced), using a multiplier of 1.5. The relatively small multiplier reflects the extent to which the region is dependent upon imports. • Lost tax revenues to the State. Alaska levies a tax on commercial fishing businesses as well as a corporate income tax. The State shares the fishing tax with local communities based on location of landing. • Certain transactions cost and administration costs for the compensation program. Hartman estimates the present value of these costs at $4.3M. Over-compensation of firms and individuals ($3.4M) due to the difficulty of precisely identifying affected entities and the magnitude of their losses constitutes the largest component of the transactions costs. We are puzzled by the inclusion of these transactions and administration costs, especially the transaction costs. They are a transfer payment, not an income loss, and since Congress has funded the compensation program, this $3.4M constitutes an increase in regional income at the expense of taxpayers nationally. In our use of Hartman's analysis, we exclude these expenditures together with $200K for Dungeness crabbers. Losses sustained by Dungeness crabbers are due to the Act, not the promulgation of eligibility conditions for Tanner, halibut, and salmon fishermen. Excluding these costs leaves $670K in administrative expenses. The cost of administering the compensation program is a burden on the State and the NPS, but not a loss to the regional economies. Indeed, depending upon how the monies are disbursed, they may be a gain to the regional economies, especially since these expenses are likely to be covered by taxpayers nationally. Excluding all transactions and administration costs reduces the estimated regional income effects to $12-19M. We have confidence in Hartman's analysis, both because of the care with which it was designed and executed and because Congress based its $23M appropriation for compensation on this analysis. This latter is a strong Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41873 endorsement. Hartman's analysis of income losses is more comprehensive than that required of us, however. Hartman wanted to identify all impacts to the region from phasing out commercial fishing in the Bay. We are only responsible for estimating the impacts associated with the promulgation of eligibility conditions for participating in the Tanner, halibut, and salmon troll fisheries. Hartman's upper bound estimate for this subset is $12.iM. In conducting his analysis, Hartman adopted much more restrictive eligibility criteria than those selected by the Secretary, excluding fishermen with less than 6 years of participation in 10. Scaling back Hartman's results to exclude only those with less than 3 years of participation during the decade reduces the upper bound estimate of the present value of the income effects to $9.2M. At a discount rate of 3% in perpetuity this is an annual impact of $276K. Annualizing over 50 years gives an impact of $358K. We believe these to be conservative estimates of the economic effect of the eligibility criteria selected by the Secretary on small entities (individuals. firms, communities, and village governments) in Southeast Alaska. First, our estimate is based on Hartman's upper bound, which assumes among other things that most displaced fishermen never work again. Secondly, because CFEC statistical areas do not coincide with Park boundaries, the data overestimate lost harvest and income due to the eligibility criteria. Further, participation data for 1989-1998, the period used by the Secretary in selecting the eligibility criteria, indicate that fewer participants would be excluded from the Bay fisheries than data for the period 1987-1996, the period underlying Hartman's analysis. No effort was made to correct for these influences and refine our estimates further. We have placed a copy of the regulatory flexibility analysis on file in the Administrative Record at the address specified in the ADDRESSES section. Public comment is invited on the regulatory flexibility analysis. Regulatory Planning and Review This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866. a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, the environment, or other units of government. Jobs in local Alaska communities will be lost and a Federally funded compensation programs will mitigate the economic impacts on individuals and the communities. An economic analysis has been completed and is attached (See Regulatory Flexibility Act Section). With this rule we are establishing eligibility requirements and application procedures for obtaining a special use permit for lifetime access to three commercial fisheries authorized in Glacier Bay proper. b. This rule will not create inconsistencies with other agencies' actions. The Act calls for the Secretary and the State of Alaska (State) to cooperate in the development of a management plan· to regulate these ongoing commercial fisheries. Certain inlets or areas of inlets of Glacier Bay proper are either closed to all commercial fishing, or limited to trolling by qualifying fishermen for king salmon during the winter season. The Act confirms the statutory prohibition on commercial fishing within the Park's designated wilderness areas, and authorizes compensation for qualifying Dungeness crab fishermen who had fished in designated wilderness waters of the Beardslee Islands and Dundas Bay. c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule implements and establishes eligibility requirements and application procedures for obtaining a special use permit for lifetime access to three commercial fisheries authorized in Glacier Bay proper. d. This rule will not raise novel legal or policy issues. States and other Federal programs have used similar measures to compensate individuals to accomplish program initiatives. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under the Congressional review provisions of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule: a. Does not have an effect on the economy of $100 million or more, as demonstrated in the economic analysis (see Regulatory Flexibility Act Section). b. Will not cause an increase in costs or prices for consumers, individual industries, Federal, State or local governments entities, 'or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U .S.-based enterprises to compete with foreign-based enterprises (See Regulatory Flexibility Act Section). Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S. C. 1502 et seq.): a. This rule will not "significantly or uniquely" affect small governments. A Small Government Agency Plan is not required. This rule does not change the relationship between the NPS and small governments. (See Regulatory Flexibility Act Section) . b .. The Department has determined and certifies pursuant the Unfunded Mandates Reform Act, that this rule will not impose a cost of $100 million or more in any given year on local, State or tribal governments or private entities. Takings In accordance with Executive Order 12630, the rule does not have significant takings implications. No takings of personal property will occur as a result of this rule. Perceived takings due to job loss will be offset by the compensation program. This rule implements and establishes eligibility requirements and application procedures for obtaining a special use permit for lifetime access to three commercial fisheries authorized in Glacier Bay proper. (See Regulatory Flexibility Act Section). Federalism In accordance with Executive Order 12612, the rule does not have significant Federalism effects. The primary effect of this rule is to implement eligibility requirements and application procedures for obtaining a special use permit for lifetime access to three commercial fisheries authorized in waters of Glacier Bay National Park. Civil justice Reform The Department has determined that this rule meets the applicable standards provided in Section 3(a) and 3(b) (2) of Executive Order 12988. The rule does not unduly burden the judicial system. NPS drafted this rule in "Plain-English" to provide clear standards and to ensure that the rule is easily understood. We consulted with the Department of Interior's Office of the Solicitor during the drafting process. Paperwork Reduction Act This rule contains information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995. The collection of information contained in section 13.65 (a) (5) (iii) of this rule is for issuing a special use permit for lifetime access to three authorized commercial fisheries within Glacier Bay proper based upon sufficient historical participation. The 41874 Federal Register /Vol. 64, No. 147 /Monday, August 2, 1999 /Proposed Rules information collected will be used to determine who qualifies for the issuance of a special use permit for lifetime access. It is necessary for someone to apply to obtain a permit. Specifically, NPS needs the following information from an applicant to issue a special use permit for lifetime access to the salmon troll fishery, Tanner crab pot and ring net fishery, and halibut longline fishery authorized within Glacier Bay proper: (1) Full name, date of birth, mailing address and phone number. (2) A sworn and notarized personal affidavit attesting to the applicant's history of participation as a limited entry permit or license holder in one or more of the three authorized Glacier Bay fisheries during the qualifying years. (3) A copy of a current State or-in the case of halibut- International Pacific Halibut Commission commercial fishing permit card or license that is valid for the area including Glacier Bay proper. (4) Documentation of commercial landings within the statistical units or areas that include Glacier Bay proper during the qualifying period. (5) Any available corroborating information that can assist in a determination of eligibility for the lifetime access permits for the three authorized fisheries within Glacier Bay proper. NPS has submitted the necessary documentation to the Office of Management and Budget under 44 U.S.C. 3501 et seq., and received approval for the collection of this information for all areas covered by this rule under permit number 1024-0125. A document will be published in the Federal Register establishing an effective date for Sec. 13.65 (a)(5)(iii). 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, DC 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. National Environmental Policy Act An Environmental Assessment (EA) that described five alternatives for management of commercial fishing activities within the marine waters of Glacier Bay National Park was distributed for public comment on April 10, 1998. That document described the major issues associated with commercial fishing activities within the park as identified through public meetings, written comments and staff analysis, and examined the social and biological consequences of the five alternatives. The 1997 proposed regulations were described in Alternative 1, and represented the preferred alternative for purposes of the EA. Public comment on the proposed rule and EA were taken at the same time. Congress, in passing section 123 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999, clarified and limited the Secretary of the Interior's discretionary authority with respect to authorizing commercial fishing in the park. Thus, the Act required the Secretary to describe eligibility criteria for the lifetime access permits for Glacier Bay proper, closed certain named inlets and wilderness waters, and clarified that the outer marine waters of the park should remain open to commercial fishing under a cooperatively developed State/Federal fisheries management plan. Consistent with the requirements of the Act, as amended, we are providing a 45-day public comment period on this rule. All comments received on this rule will be considered prior to any decision under the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). By requiring completion of the final rule by September 30, 1999, the Act, as amended, does preclude any opportunity to prepare an EIS instead of an EA on this rulemaking. We have placed copies of the 1998 EA on file in the administrative record; copies of the EA may be obtained by contacting the park at the address or phone number listed under FOR FURTHER INFORMATION CONTACT. Clarity of the Rule Executive Order requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the rule? What else could we do to make this rule easier to understand? Please send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. You may also e- mail the comments to this address: exsec@ios.doi.gov. Public Comment Solicitation If you wish to comment you may mail comments to Tomie Lee, Superintendent, Glacier Bay National Park and Preserve, P. 0. Box 140, Gustavus, Alaska 99826. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety. List of Subjects in 36 CFR Part 13 Alaska, National Parks, Reporting and record keeping 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 is amended to read as follows: Authority: 16 U.S.C. 1. 3, 462(k), 3101 et seq.; Sec. 13.65 also issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197; Pub. L. 105- 277, 112 Stat. 2681, October 21, 1998; Pub. L. 106-31, 113 Stat. 57, May 21, 1999. 2. Section 13.65 is amended by adding paragraph (a) and removing and Federal Register/Val. 64, No. 147 /Monday, August 2, 1999/Proposed Rules 41875 reserving paragraphs (b) (5) and (b) (6) to read as follows: § 13.65 Glacier Bay National Park and Preserve. (a) Commercial Fishing-(!) Definitions. As used in this section: Commercial fishing means conducting fishing activities under the appropriate commercial fishing permits and licenses as required and defined by the state of Alaska. Glacier Bay means all marine waters within Glacier Bay, including coves and inlets, north of an imaginary line drawn from Point Gustavus to Point Carolus. Outer waters means all of the non- wilderness marine waters of the park located outside of Glacier Bay. (2) Authorization. Commercial fishing is authorized in the non-wilderness marine waters of the park in compliance with paragraph (a) of this section, and applicable federal and non-conflicting state laws and regulations. (3) Wilderness. Commercial fishing and associated buying and processing operations within designated wilderness are prohibited. Maps and charts showing designated wilderness areas are available from the Superintendent. (4) Outer waters. Commercial fishing is authorized within the marine outer waters of the park subject to a cooperatively developed State/Federal park fisheries management plan and applicable federal and non-conflicting state laws and regulations. (5) Glacier Bay. (i) Authorized fisheries. Commercial fisheries within Glacier Bay are limited only to longline fishing for halibut, pot or ring net fishing for Tanner crab. and trolling for salmon. All other commercial fisheries are prohibited. (ii) Limits on participation. After January 1, 2000, longlining for halibut, pot or ring net fishing for Tanner crab, or trolling for salmon in Glacier Bay is prohibited without a special use permit for access to the fishery issued by the Superintendent. The special use permit for access is non-transferable. (iii) Obtaining a special use permit. The special use permits for access to the three authorized Glacier Bay commercial fisheries are available to fishermen who-(A) Possess a valid commercial fishing permit for one or more of the three fisheries authorized in Glacier Bay; and, (B) Provide documentation to the Superintendent prior to October 1, 2000, which demonstrates that the individual participated as a permit holder in the Glacier Bay commercial halibut fishery for at least two years during the period 1992-1998, or, in the case of the Glacier Bay salmon or Tanner crab commercial fisheries, participated as a permit holder for at least three years during the period 1989-1998. The documentation provided must include: full name, date of birth, mailing address and phone number; a sworn and notarized personal affidavit attesting to the applicant's history of participation as a permit holder in one or more of the three authorized fisheries within Glacier Bay during the qualifying period; a copy of a current State of Alaska or, in the case of halibut, International Pacific Halibut Commission commercial fishing permit or license that is valid for the area including Glacier Bay; documentation of licensing history for the fishery during the qualifying period; documentation of commercial landings for ~he fishery during the qualifying penods and within the statistical unit or area that includes Glacier Bay or Icy Straits. Fishermen are requested to provide any additional corroborating documentation that might be available to assist in a timely determination of eligibility for the special use permits for access. (C) This information should be delivered to the Superintendent, Attn: Access Permit Program, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. (D) The Superintendent will make a written determination of eligibility for the special use permit for access based on information provided by the applicant. A copy of this written determination will be provided to the applicant. If additional information is required to make an eligibility determination, applicants will be notified in writing of that need and be afforded an opportunity to provide it. (iv) Special use permit denial and appeal procedures. If an applicant is determined not eligible for a special use permit for access, the Superintendent will provide the applicant with the forwarded promptly to the applicant and will constitute final agency action. (v) Special use permit renewal. A special use permit for access to an authorized Glacier Bay fishery will be renewed at 5-year intervals for the lifetime of a fisherman who continues to hold a valid commercial fishing permit or license and is otherwise eligible to participate in the fishery under federal and state law. (vi) Areas closed to fishing. Maps and charts showing marine areas of Glacier Bay_ closed to commercial fishing are available from the Superintendent. (A) After December 31, 1999 the west arm of Glacier Bay north of 58°50'N latitude is closed to all commercial fishing, with exception of trolling for king salmon during the period October 1 through April30, in compliance with state commercial fishing regulations. (B) After December 31, 1999 Tarr Inlet, Johns Hopkins Inlet, Reid Inlet and Geike Inlet are closed to all commercial fishing. (C) After December 31, 1999 the east arm of Glacier Bay, north of an imaginary line running from Point Caroline through the southern point of Garforth Island and extending to the east side of Muir Inlet, is closed to commercial fishing, with exception of trolling for king salmon south of 58°50'N latitude during the period October 1 through April 30, in compliance with state commercial fishing regulations. * (b) * * * (5) [Reserved] (6) [Reserved] * * * Dated: july 2, 1999. Donald J. Barry, * Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 99-19703 Filed 7-30-99; 8:45am] BILLING CODE 431 D-7D-P reasons for the denial in writing within 15 days of the decision. Any applicant ENVIRONMENTAL PROTECTION adversely affected by the AGENCY Superintendent's determination may appeal to the Regional Director, Alaska Region, within 180 days. Applicants must substantiate the basis of their disagreement with the Superintendent's determination. The Regional Director will provide an opportunity for an informal meeting to discuss the appeal within 30 days of receiving the applicant's appeal. Within 15 days of receipt of written materials and informal meeting, if requested, the Regional Director will affirm, reverse, or modify the Superintendent's determination and 40 CFR Part 300 [FRL-641 0-3] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List AGENCY: Environmental Protection Agency. ACTION: Notice of intent to delete the S_and Springs Petrochemical Complex Site from the National Priorities List" request for comments. ' set forth in writing the basis for the SUMMARY: The Environmental Protection decision. A copy ofthe decision will be Agency (EPA) Region 6 announces its