[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Proposed Rules]
[Pages 41854-41875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19703]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 13
RIN 1024-AB99
Glacier Bay National Park, Alaska; Commercial Fishing Regulations
AGENCY: National Park Service, (NPS), Interior.
ACTION: Re-Proposed rule.
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SUMMARY: This re-proposed rule satisfies the requirement in Pub. L.
106-31 for the Secretary of Interior to provide 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,
[[Page 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 Monument was established by presidential
proclamation dated February 26, 1925. 43 Stat. 1988. The monument was
established to protect a number of tidewater and other glaciers, and a
variety of post glacial forest and other vegetative covering, and also
to provide opportunities for scientific study of glacial activity and
post glacial biological succession. The early monument included marine
waters within Glacier Bay north of a line running approximately from
Geikie Inlet on the west side of the bay to the northern extent of the
Beardslee Islands on the east side of the bay. The monument was
expanded by a second presidential proclamation on 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 of future generations.'' Id.
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 1a-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.'' Id. 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 1a-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
[[Page 41856]]
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 (July 3, 1962).
In 1966, NPS revised its fishing regulations so as to prohibit
commercial fishing activities in Glacier Bay National Monument.
Although the 1966 NPS regulations, unlike previous versions, only
prohibited fishing ``for merchandise and profit'' in 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 Secs. 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
[[Page 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 fall 1995 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 April 16, 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 DOI 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 April 1998, 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
[[Page 41858]]
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, April 16, 1997) until January 15, 1999, modify the draft
regulations to conform to [section 123's] language and publish the
changes in the final regulations.'' 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
April 16, 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
[[Page 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 100 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 (ATA), 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 of this 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
[[Page 41860]]
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% of the 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 ATA 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, ATA, 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
[[Page 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, ATA and numerous individuals supported
criteria that would allow any individual holding a Commercial Entry
Permit (including T series, B series, S05, S15, 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 criteria 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 10-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.
[[Page 41862]]
A base period of less than 7 to 10-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 of longer 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,
[[Page 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 the 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 ATA 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
[[Page 41864]]
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 CACFA, 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 ATA 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. ATA 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 ATA
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. ATA 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
ATA 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
[[Page 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 CACFA 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
[[Page 41866]]
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 including 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.
[[Page 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 commercial 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. ATA 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
[[Page 41868]]
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
[[Page 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 ATA 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 developed 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, ATA, 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
[[Page 41870]]
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 NEPA 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)(1) 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)(5)(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)(5)(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)(5)(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
[[Page 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 deg. 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
[[Page 41872]]
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
[[Page 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 $12.1M.
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
[[Page 41874]]
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. O. 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
[[Page 41875]]
reserving paragraphs (b)(5) and (b)(6) to read as follows:
Sec. 13.65 Glacier Bay National Park and Preserve.
(a) Commercial Fishing--(1) 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 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.
(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 reasons
for the denial in writing within 15 days of the decision. Any applicant
adversely affected by the 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 set forth in
writing the basis for the decision. A copy of the decision will be
forwarded promptly to the applicant and will constitute final agency
action.
(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 deg.50'N latitude is closed to all commercial fishing, with
exception of trolling for king salmon during the period October 1
through April 30, 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 deg.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; 8:45 am]
BILLING CODE 4310-70-P
