HomeMy WebLinkAboutGLBA Re-Proposed Commercial Fishing Rule 1999I • ..
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t . -.:J ' . ."i . ·""J .... r = ....,~ .. .-, \ ·. '; . ;~\ ! ! ! ~ .. \ \ ; ; ·. ! ' ' \ TONY KNOWLES, GOVERNOR
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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modifl~d or superseded by the 1998 Act, and how NPS intends to proceed with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