Glacier Bay National Park, Alaska: Vessel Management Plan Regulations

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024-AC05

Glacier Bay National Park, Alaska: Vessel Management Plan

Regulations

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service (NPS) is revising the regulations,

including vessel quotas, that were established to protect the

endangered humpback whale and other resources within Glacier Bay

National Park and Preserve. The regulations authorize a modest increase

in cruise ship, charter boat and private boat use, to be offset by

specific mitigation measures. The regulations do not authorize an

increase in the maximum number of motor vessels permitted to use the

bay on any given day.

Subject to the existing maximum daily limit of two cruise ships per

day, the regulations authorize an immediate 30-percent increase in

cruise ship traffic during the 1996 and 1997 summer seasons (June 1

through August 31). Additionally, but contingent upon the completion of

studies demonstrating that a further increase in cruise ship traffic

would be consistent with protection of the values and purposes of

Glacier Bay National Park and Preserve, the regulations could allow up

to an additional 42-percent increase (i.e., a total increase of 72%

from existing 1995 levels) in cruise ship traffic beginning with the

1998 summer season. For each summer season thereafter, the regulations

authorize the NPS to adjust the number of cruise ship entries, subject

to the maximum daily limit of two vessels, based on available

scientific and other information and applicable authorities. NPS has

also revised current restrictions on seasonal entries and use-days for

charter and private boats to authorize an 8-percent increase in charter

boat traffic and a 15 percent increase in private boat traffic

beginning with the 1996 summer season.

The regulations also extend and codify park compendium vessel

regulations for the protection of park resource values. Several

additional measures, such as the requirement for air, water and

underwater noise pollution minimization plans from cruise ships,

mitigate the potential resource impacts associated with the increase in

vessel traffic. Finally, to protect park resource values and maintain

opportunities for the safe use of kayaks, the regulations close six

specified areas to motor vessels for varying periods.

EFFECTIVE DATE: This rule is effective on May 30, 1996.

FOR FURTHER INFORMATION CONTACT: Russ Wilson, Alaska Desk Officer,

National Park Service, P.O. Box 37127, Washington, D.C. 20013-7127.

Telephone 202-208-4874.

SUPPLEMENTARY INFORMATION:

Public Participation on the Proposed Rule

The National Park Service published proposed rules as well as a

Notice of Availability of the Vessel Management Plan/Environmental

Assessment (VMP/EA) on June 5, 1995 (60 FR 29523). The 60 day period

for public comment closed on August 4, 1995, but was subsequently

reopened from August 10, 1995 (60 FR 40798), until August 25, 1995, to

accommodate several commenters who had requested an

[[Page 27009]]

extension. NPS received 427 timely comments. NPS held six open houses/

public hearings on the VMP/EA and proposed regulations in Anchorage,

Juneau, Gustavus, Hoonah, Pelican, and Elfin Cove. All meetings were

taped and transcriptions of the tapes and written comments accepted at

the hearings have been placed in the park file. The National Park

Service has carefully considered each of these comments and has adopted

several suggestions made by the commenters. Below is a summary of the

comments and NPS's responses.

Summary of Comments and Decision

The NPS requested comments on the six alternatives considered in

the VMP/EA. The alternatives included an array of vessel management

options and provided varying levels of protection for sensitive

resources.

Alternative 1 (no action) would not change existing vessel

management. Vessel management would continue in accordance with

existing regulations and the park compendium.

Alternative 2 would maintain existing levels of vessel entries

for cruise ships, tour boats, and charter and private boats into

Glacier Bay, while maximizing wilderness recreation opportunities

through the seasonal closure of five designated wilderness waters to

motor vessels.

Alternative 3 would increase seasonal vessel entry quotas for

cruise ships by 30 percent, for charter boats by 8 percent and use

days for private boats by 34 percent. Tour boat quotas would not

change. The seasonal closure of five designated wilderness waters to

motor vessels would enhance wilderness recreation opportunities.

Alternative 4 would optimize resource protection and wilderness

recreation in Glacier Bay. Seasonal vessel entries would be reduced

for cruise ships (-14%), tour boats (-22%), charter boats (-17%),

and private boats (-17%). The seasonal closure of five designated

wilderness waters to motor vessels would enhance wilderness

recreation opportunities.

Alternative 5 (original proposed action) would optimize visitor-

use opportunities in Glacier Bay by raising seasonal cruise ship

entry quotas by 72 percent; the daily limit of two ships per day

would continue. Daily limits of three tour boats, six charter boats

and 25 private boats would continue. Seasonal entries and use-days

for tour boats, charter boats, and private boats would not change

from existing levels. In the preamble to the proposed regulations,

however, the NPS also solicited comments on including an 8 percent

increase in seasonal entries and use-days for charter vessels and a

15 percent increase in seasonal entries and use-days for private

vessels. The seasonal closure of five designated wilderness waters

to motor vessels would enhance wilderness recreation opportunities.

Alternative 6 would provide additional opportunities for

motorized recreation. Seasonal vessel entries would be increased for

cruise ships (72%), charter boats (8%) and private boats (15%). Tour

boat seasonal use-days would not change. The seasonal closure of

five designated wilderness waters to motor vessels would enhance

wilderness recreation opportunities.

The majority of commenters (about 85%) were opposed to Alternative

5, which included a 72-percent increase in cruise ship entries.

Commenters were concerned that air quality, water quality, biological

resources and visitor experience would be compromised by cruise ship

increases. The majority of commenters (about 85%) favored Alternative

4, which proposed increased resource protection, additional wilderness

recreation and decreased vessel entries. The majority of commenters

(about 90%) wrote to support the proposed vessel closures or other

proposed mitigation measures.

Based on public comment received on the VMP/EA and the accompanying

regulations, the NPS has modified Alternative 5's (the proposed action)

vessel quotas, vessel operating requirements and special-use area

closures and restrictions. The modified action responds to the public's

concern for the Glacier Bay environment and a more appropriate balance

of vessel use by reducing the proposed cruise ship quota increase,

while accommodating additional opportunities for visitor use of the

park. The modified alternative includes modest increases for private

and charter vessels, providing additional opportunities for visitor use

of the park and the different types of visitor experiences that these

vessels provide. Because most charter vessels are locally based, the

increase in charter vessel use will also provide direct economic

benefits to local communities.

Under the modified alternative, in 1996, seasonal entry quotas for

cruise ships will increase by 30 percent; however, the daily limit of

two ships per day will continue. On or before October 1, 1997, the

superintendent of Glacier Bay National Park and Preserve is required to

determine, with the approval of the NPS director, whether studies have

been completed and sufficient scientific and other information have

been developed to support an increase in cruise ship entries for the

1998 summer season (June 1 through August 31). This determination

requires a finding that any seasonal increase in cruise ship entries

would be consistent with protection of the values and purposes of

Glacier Bay National Park and Preserve. Any increase would remain

subject to the maximum daily limit of two vessels. NPS would publish a

determination to increase cruise ship entries in the Federal Register,

with an opportunity for public comment. By October 1 of 1998, and of

each year thereafter, the superintendent must determine, with the

approval of the director, the appropriate number of cruise ship entries

for the following summer season (June 1 through August 31), based on

available scientific and other information and applicable authorities

and subject to the maximum daily limit of two vessels. NPS would

publish any determination to revise cruise ship entries (either to

increase or decrease) in the Federal Register, with an opportunity for

public comment.

The daily limit of three tour boats per day will not change. Daily

limits of six charter boats and 25 private boats will continue. The NPS

is modifying current restrictions on seasonal entries and use-days for

charter and private boats to provide an 8-percent increase in seasonal

entries and use-days for charter boats and a 15-percent increase in

seasonal entries and use-days for private vessels. However, NPS

recognizes that, because of the maneuverability of these smaller

vessels and the challenge of achieving compliance with protective

regulations, the increase in traffic from these vessels could result in

impacts to park resources. Consequently, the private and charter vessel

increases are authorized contingent upon the continued success of

mitigation measures such as an educational orientation program for

small vessel operators, favorable results from the compliance

monitoring program, continued research on potential impacts to park

resources, and--fundamental to all these measures--adequate resources

for implementation. NPS intends to evaluate the small vessel programs

annually.

Vessel operating requirements and the special-use area closures and

restrictions included with this alternative will provide additional

protection for sensitive resource values and increase the range and

quality of visitor experience opportunities. The modified proposed

action includes mitigating measures to further reduce the magnitude of

effects of vessel and visitor use. These include an orientation/

educational program; air, water, and underwater noise pollution control

strategies; and an expanded park research, inventory and monitoring

program. This combination of measures will facilitate monitoring and

mitigate potential environmental effects resulting from increased

vessel quotas.

[[Page 27010]]

Analysis of Comments

Research

All comments received that pertain to research stressed the need

for additional research and monitoring of vessel traffic impacts to

Glacier Bay. Several of these comments suggested that the study area

include adjacent Icy Strait waters.

The NPS is formulating a comprehensive research, inventory and

monitoring plan to assess the effects of vessel traffic on the values

and purposes of Glacier Bay National Park and Preserve. The park's

research, inventory and monitoring program will focus on obtaining

baseline information on the coastal resources and physical

characteristics of Glacier Bay; identifying and understanding the

effects of vessel traffic on air quality, marine mammals, birds,

visitor-use enjoyment and the economy of the region; and determining

whether management strategies and mitigation measures are effectively

protecting park purposes and values.

Beginning in 1996, NPS will expand research emphases. In addition

to ongoing humpback whale and harbor seal monitoring, NPS studies will

focus on behavioral changes of marine mammals in relation to vessels,

and the relationship between critical prey species and marine mammal

and bird populations and distribution. NPS will also develop protocols

for monitoring vessel traffic distribution. These studies may encompass

areas beyond the boundaries of the park, including Icy Strait waters,

in cooperation with state and federal agencies. NPS management policy

directs that parks having migratory species will ensure the

preservation of their populations and their habitats inside the park

and will cooperate whenever possible with others to ensure the

preservation of their habitats outside the park. Management actions may

include monitoring of those species outside the park to develop data

for other agencies, such as the U.S. Fish and Wildlife Service and

National Marine Fisheries Service. See, Management Policies, U.S.

Department of the Interior, National Park Service, Chapter 4:7,

Management of Migratory Animals (1988).

Research will also emphasize the use of new technologies to monitor

underwater noise and air pollution emissions in partnership with other

agencies, non-profit environmental organizations, universities and

possibly the military. This type of research direction has cruise ship

and tour boat operator support.

In addition to expanding studies in 1996, NPS will develop a

research, inventory and monitoring program for the park within one

year. It will stipulate research and protection actions NPS will

undertake to ensure that environmental effects do not exceed acceptable

levels. This program will enhance the scientific basis for future

adjustments in vessel quotas. NPS will make an annual report, detailing

efforts, funding levels and personnel allocated to VMP actions

available to the public.

One commenter noted that, in implementing the VMP requirement that

cruise ships assess the short and long-term impacts of their activities

on Glacier Bay resources through a research and monitoring program, it

would be inappropriate for each cruise ship to assess the impact of

only its activities, as a single cruise ship may be able to conclude

that the impacts of its specific operation were negligible even though

cumulative impacts may not be. Additionally, if each cruise ship

performs its own assessment, NPS could well receive inconsistent

studies based on different methodologies and assumptions. The final

rule clarifies that, as the commenter suggested, these assessments will

be performed pursuant to a comprehensive NPS research, inventory and

monitoring plan. Several commenters expressed concern that motor vessel

closures would disrupt or hamper research. However, NPS can allow

approved research activities pursuant to the administrative exception

contained in the regulations.

Humpback Whales and Whale Waters

Numerous commenters suggested that all five areas proposed as whale

waters in Alternative 3 should receive that designation to provide

maximum protection for whales in these key habitats. On the other hand,

a few commenters thought NPS should impose whale water restrictions

only when whales are present because the restrictions are a hardship on

motor vessel users. One commenter objected that the proposed

regulations would not retain the requirement that NPS consult with

other federal and state agencies and the public before designating

whale waters in Glacier Bay.

The final regulations designate four of the five areas considered

for designation as seasonal whale waters on a permanent basis. The

final regulations also allow the superintendent to designate any area

of Glacier Bay as temporary whale waters if whales concentrate in that

area. Whale waters restrictions that limit vessels to one mile from

shore or mid-channel will become effective for lower bay waters on May

15, as proposed. This is two weeks earlier than currently imposed.

Implementing a mid-channel course earlier in the spring leaves near-

shore habitat unoccupied by boats so that whales may move into the park

through the narrow mouth of the bay with less disturbance. However, the

NPS believes that imposing a speed limit automatically in mid-May, a

measure which was more objectionable to boater/commenters than was the

mid-channel (one mile from shore) requirement, could result in a loss

of credibility and, therefore, reduced compliance if boaters do not see

whales in the area. The NPS believes that the public will be better

served if these speed restrictions can be imposed promptly when they

are needed, and lifted when they are not. This approach requires that

the superintendent have the flexibility to act quickly, as this

rulemaking provides.

One commenter expressed concern that expanding whale waters, along

with the mid-channel and one-mile-from-shore restriction for vessels,

would preclude people from seeing wildlife along the shorelines. The

NPS acknowledges that, while in whale waters, the regulations would

prohibit a vessel within a mile from shore from motoring parallel to

the shore. However, motor vessels may travel perpendicularly (by the

most direct line) to shore through whale waters to view or photograph

wildlife (other than whales) or land on an otherwise unrestricted shore

to camp or participate in any other park activity.

Seals

One comment suggested closing Johns Hopkins Inlet during seal

pupping from an imaginary line from Jaw Point to Topeka Glacier and

south. The NPS has adopted a line running due west from Jaw Point that

closes virtually the same area and still provides a view of Johns

Hopkins Glacier. Additionally, Johns Hopkins Inlet (south of the line

running due west of Jaw Point) will remain closed to cruise ships from

July 1 through August 31, to protect significant concentrations of

molting harbor seals from disturbance by the increase in cruise ship

traffic.

Sea Birds

In response to comments, including one from the U.S. Fish and

Wildlife Service (FWS) that direct observations by FWS biologists at

Glacier Bay and elsewhere indicate that a 100-foot closed area around

seabird nesting colonies is inadequate to prevent disturbance to birds

at nesting colonies, NPS has instead adopted a 100-yard closure, except

at the southern one-half of South Marble Island where a 50-yard closure

will apply.

[[Page 27011]]

Many visitors on tour boats in Glacier Bay National Park consider

viewing birds at the South Marble Island a highlight of their trip.

This bird viewing has caused no apparent changes in the bird population

on this island. The excitement people feel on seeing a puffin,

kittiwake, or pigeon guillemot can, however, change the way they feel

about birds and the places where they can be found. This change can

translate into conservation and resource protection for parks where

similar wildlife exists. Prior to 1991, there was no restriction on

approaching the South Marble Island birds; subsequently, NPS

established a 100-foot distance. There have been no apparent changes to

the bird population on this island. With this rulemaking, NPS is

establishing a 50-yard distance for South Marble Island to provide the

birds additional protection but still accommodate the visitor's ability

to view the birds.

Air Quality

Most of the comments received concerning air quality expressed

concern that the NPS was not doing enough to ensure good air quality at

Glacier Bay. In order to protect the air quality of Glacier Bay

National Park and Preserve, the NPS has taken four significant steps:

(1) the NPS has adopted marine vessel visible emission standards; (2)

the NPS will require every cruise ship to prepare and abide by an NPS-

approved pollution minimization plan to assure that, to the fullest

extent possible, cruise ship companies permitted to travel within the

park apply the industry's best approaches toward pollution

minimization; (3) the NPS will consider a cruise ship company's

demonstrated ability to minimize pollution as a strongly weighted

preference for entry permits subject to competitive allocation; and (4)

the NPS has dropped a competitive preference that favored a cruise ship

company whose route of travel included both the Tarr Inlet and Johns

Hopkins Inlet. With regard to this last step, only a Tarr Inlet stop

will receive preference, thereby ensuring that park visitors aboard the

ship have an opportunity to see superlative sights in Glacier Bay

without the ship's slowing down and turning an additional time, a

maneuver that tends to increase stack emissions and concentrate them in

one area. The NPS will increase its efforts to monitor and study air

quality as part of its comprehensive research program and will amend

the standards if amendments are required to protect the values and

purposes of Glacier Bay National Park and Preserve.

One commenter pointed out that just prior to the publication of the

proposed regulations, the State of Alaska revised its air quality

regulations by relaxing the opacity standards for vessels in ports.

Since neither the state nor the NPS considers Glacier Bay a ``port,''

the regulations which the NPS adopts today are substantially the same

as current state regulations applicable to Glacier Bay. If the State of

Alaska adopts more restrictive (i.e., protective of park environmental

values) laws and regulations concerning visible emissions, NPS will

incorporate such provisions in these regulations.

Water Pollution Control Strategies

In response to comments, NPS will implement pollution control

strategies to mitigate the increase in vessel traffic with the

additional resource protection requirement that cruise ships develop

oil spill vessel response plans (VRP). Cruise ship operators must

submit VRP for review and approval prior to conducting operations in

Glacier Bay National Park. The VRP must meet planning and response

standards similar to those identified in U.S. Coast Guard regulations

for tank ships (33 CFR Part 155). The VRP will in part develop

alternate response strategies for most probable and worst case spill

scenarios, and will identify personnel, equipment and other spill

response resources that can be timely deployed in response to a spill

event. Recent cruise ship groundings in Alaska that resulted in oil

spills have highlighted the need for advance planning and preparation,

particularly since there is no pollution response contractor in

Southeast Alaska that can provide a reasonably timely response to a

spill event. The NPS will work with the cruise ship industry to develop

VRPs that protect park resources while providing flexibility to the

industry to meet established planning and response standards and

criteria.

Underwater Noise Reduction

To mitigate the effects of underwater noise in Glacier Bay, the NPS

will require every cruise ship to prepare and abide by an NPS-approved

underwater noise pollution minimization plan. The NPS will also

consider a cruise ship company's demonstrated ability to minimize

underwater noise pollution as a strongly weighted preference for entry

permits subject to competitive allocation. Several cruise ship industry

commenters were critical of the NPS proposal that competitively

allocates entry permits, granting a preference to vessels that can

demonstrate minimization of air and underwater noise pollution. These

commenters questioned whether a sufficient scientific link exists, for

example, between underwater noise and humpback whales or other marine

mammals. They also questioned the ability of the industry to respond

where there are no established standards. However, another commenter

suggested that NPS should use competitive allocation of entry permits

to challenge companies to devise effective strategies to minimize their

impacts.

Ensuring air and water quality in national parks is fundamental to

the congressionally mandated mission of the NPS to conserve scenery,

natural objects and wildlife ``unimpaired.'' Air quality studies of

cruise ships in Glacier Bay demonstrate an obvious air pollution

impact. See, Vequist, Frequency of Cruise Ship Stack Emissions in

Glacier Bay (NPS VMP/EA p. 3-22). The NPS also believes that studies

have established a sufficient scientific connection concerning vessel

noise and changes in whale behavior to warrant a preference for quiet-

running ships. See, NMFS Biological Opinion, February 19, 1993 (NPS

VMP/EA Appendix D, p. 10-12). For the most part, NPS has established a

goal and left industry the flexibility and incentive to figure out the

best and most economic way to achieve it.

Cruise Ship, Tour Vessel and Charter Vessel Definitions

The regulations amend the existing definition, which is based

solely on the United States System of classification (100 gross tons,

U.S. System), by adopting an additional definition of vessel categories

which references the International Convention System. United States

(U.S.)-flagged vessels are classified under the U.S. System, foreign-

flagged vessels under the International Convention System. Since all of

the cruise ships and some of the tour boats operating in Glacier Bay

National Park are foreign-flagged vessels, the regulations will now

reference both tonnage systems in the definitions. Although the

different systems are not directly comparable, NPS intends the two

measures in the definition to be roughly equivalent and to maintain the

status quo.

One cruise ship company asked that the 2,000 gross tons (GT)

threshold tonnage (International Convention System) demarcating the

line between tour vessels and cruise ships be raised to 20,000 GT. This

recommendation, however, would substantially change the current

demarcation between cruise ships and tour vessels and consequently

allow substantial increases in the size of

[[Page 27012]]

tour vessels. The potential environmental consequences of this change

have not been studied. More information on certain environmental

impacts may become available in the future, as a result of recently

initiated vessel acoustics studies with Cornell University and similar

research which the park hopes to undertake with the U.S. Navy. Until

then, the NPS believes that the 2,000 GT limit (International

Convention System) should not be increased until there are specific

findings, based on research, monitoring and other relevant information,

that adverse consequences would not result.

In response to a comment, NPS has modified the definition of

``charter vessel'' slightly to allow use of a charter vessel to provide

scheduled kayak and camper drop-off and pick-up service. Due in part to

size, and in part to keeping continuity in tour presentations, tour

vessels can only provide ferry service to a limited number of

locations. By allowing charter vessels to augment this service, the NPS

hopes to better disperse kayak and shore-based recreational impacts.

In response to another comment, NPS has modified the definition of

``tour vessel'' in the proposed regulation to remain similar to the

existing regulations, with respect to including smaller vessels

operating on a regularly scheduled route. Omission of this portion of

the existing regulations from the proposed regulation was an error.

Continued omission would have the unintended effect of excluding tour

vessels operating under current NPS concession permits. The NPS will

continue to determine that a proposed visitor service is both necessary

and appropriate prior to permitting any smaller vessel as a tour boat.

Cruise Ship Entries

Public comment was overwhelmingly (approximately 90 percent)

opposed to an immediate 72-percent increase in cruise ship traffic. As

one commenter noted, a modest increase in cruise ship traffic is more

consistent with the 1993 NMFS Biological Opinion, which urges the NPS

to take a conservative approach in vessel increases. This rulemaking

adopts such an approach. The several mitigation measures--including

air, water and underwater noise pollution mitigation plans; closures of

areas to motorized use; increased efforts to educate the visiting

public and increased enforcement actions; plus the commitment to a

focused research plan for the bay--should help protect against

potential impacts of the vessel increases. The NPS is additionally

mindful of its obligation to reduce entries should the additional

traffic affect humpback whales, Steller sea lions, other wildlife, or

any other values or purposes of Glacier Bay National Park and Preserve.

NPS management policies concerning public use state that, although

restrictions on recreational use should be limited to the minimum

necessary to protect visitor safety and enjoyment, such restrictions

may be required--

when, in the judgment of the superintendent [a use or activity's]

occurrence, continuation, or expansion would result in the

derogation of the values or purposes for which the park was

established, interfere significantly with the enjoyment of park

resources and values by other visitors or be inconsistent with the

park's enabling legislation or proclamation.

Management Policies, U.S. Department of the Interior, National Park

Service, Chapter 8:2, Management of Recreational Use (1988).

This rulemaking requires vessels increases to be considered and

implemented incrementally, as suggested by several commenters. With

respect to the modest increases in vessel traffic authorized by this

final rule for the 1996 and 1997 summer seasons, the NPS believes that

the rule provides sufficient mitigation and other protective measures

to assure protection of Glacier Bay resources and values. However, with

respect to any future increases beginning in 1998, the NPS will examine

research, inventory and monitoring results from the planned new studies

in addition to existing scientific knowledge, and determine in the

context of applicable authorities (e.g., 16 U.S.C. 1, et seq.) whether

further increases are appropriate. In this regard, NPS Management

Policies direct that to the extent practicable, NPS should base its

public use limits on the results of scientific research and other

available support data. When, as here, that use has the potential to

impact park purposes and values, including a threatened species and an

endangered species--and virtually all conceivable mitigation measures

have been implemented--a finding to expand a public use would require

specific findings of no adverse impact to those resources based on

research, inventory, monitoring, and other relevant information. If

circumstances arise where scientific and other information is lacking,

ambiguous, or inconclusive, the superintendent must err on the side of

protecting resources. This rulemaking ensures that the NPS has the

discretion to adjust cruise ship entries should an adjustment be

advisable or required to protect the park's resources and values.

Several commenters noted that additional entries into Glacier Bay

may lead to cruise ship companies dropping other Alaska ports from

their schedule to the detriment of the economy in those communities.

The NPS acknowledges that there may be some schedule changes; however,

by adopting a more modest increase in entries at the present time and

allowing for potential incremental increases later, disruption should

be minimal as the industry and ports adjust.

A number of commenters also noted critically that cruise ships are

generally foreign-built, foreign-owned, foreign-flagged vessels, and

employ mostly foreign crew. Although this observation is true, the NPS

has focused this rule on its statutory mission, i.e., assuring

protection of park resources and values and providing for their

enjoyment so as to ``leave them unimpaired for the enjoyment of future

generations.'' 16 U.S.C. 1.

Other comments suggested that the cruise ship evaluation process

should include not only environmental criteria, but criteria concerning

whether people are traveling on a ship for reasons that relate to the

park (as opposed to other unrelated activities). In the process of

competitively awarding cruise ship entries, the NPS has and will

continue to consider the extent to which a company's cruise itinerary

and on-board passenger activities focus on park purposes.

One commenter wrote to suggest that the park should recover more

substantial fees from cruise ship companies. Under present law, the

franchise fees collected from concessionaires at national parks

generally go to the U.S. Treasury. The NPS supports legislative

proposals pending before Congress that would direct increased

concessionaire and admission fee revenues directly to the parks for

investment in their long-term care.

Tour, Charter and Private Vessel Entries

Commenters' suggestions ranged from calls for no additional entries

in these categories to calls for increases. Over the last three summer

seasons, Glacier Bay park staff have had to turn away an increasing

number of private boaters, with the trend expected to continue. The

final rule establishes a 15-percent increase in private vessel seasonal

entries and use-days which will accommodate more visitor-use

opportunities in early June and late August, periods when the daily-use

limit of 25 private vessels has not been filled in the past. The final

rule also establishes a modest increase in charter vessel seasonal

entries and use-days (8-percent). This action improves visitor

[[Page 27013]]

opportunities for this type of park experience, and at the same time

tends to benefit the economies of local communities. As with other

vessel categories the final rule does not increase the daily limit of

charter vessels permitted in Glacier Bay (i.e., six per day). The

regulations that NPS published as part of the proposed rule included

the respective 8- and 15-percent increases in seasonal entries and use-

days. Therefore, this final rule retains the seasonal entry and use-day

increases in charter and private vessels, as published in the proposed

rule.

Tour boat companies, in particular, suggested that tour boats

should receive more entries. Several suggested that some of the entries

that NPS proposed for cruise ships should instead go to tour boats. NPS

believes that increased opportunities for people to visit the bay can

best be provided by modest increases in entries and use-days within the

existing vessel-per-day limits. Generally, the increased traffic will

occur on the shoulder seasons, not in mid-summer. Tour boats are

currently operating at the maximum allowed number of three vessels per

day during the summer season.

Commercial Fishing Vessels

Commenters were divided on the issue of how and whether commercial

fishing vessels should be managed in Glacier Bay. NPS published

proposed regulations concerning commercial fishing in Glacier Bay

National Park on August 5, 1991 (50 FR 37202). NPS is reviewing the

larger issue of the future of commercial fishing within Glacier Bay

National Park in a separate effort that may result in additional

regulations. The seasonal motor vessel closures included within today's

rulemaking will apply to commercial fishing vessels, as well as all

other types of motorized vessels and seaplanes. However, this rule

continues the exemption that commercial fishing vessels actually

engaged in commercial fishing have from the seasonal entry and daily

use limits that apply to other vessel types.

Kayaks

Comments ranged from increasing kayak use to limiting it. Some

commenters felt that NPS needs more data on kayak use, so that resource

impacts from associated uses such as on-shore camping could receive

more detailed consideration in the VMP/EA. NPS is establishing a

backcountry monitoring program to establish levels of use and assess

impacts. NPS will also continue to restrict camping in certain

shoreline areas as necessary to limit camper impacts on bears and other

resources. One commenter suggested that safety concerns based on the

potential impacts of vessel wakes on kayaks had been exaggerated. For

several reasons, however, NPS believes that the safety concerns are

real, particularly in the cold and remote waters of Glacier Bay. One

commenter suggested that NPS should require kayakers visiting Glacier

Bay to attend an educational program on the use of the bay. NPS

currently provides a kayaker/camper orientation program, which NPS

plans to continue, improve, and perhaps make mandatory at some future

date if such a requirement can reduce resource impacts and improve

visitor safety.

Concession Boats

One commenter suggested that NPS should not allocate entry permits

to charter vessels based in Bartlett Cove that operate sport fishing

charters in Icy Strait waters outside the park; rather this commenter

thought that such vessels should be encouraged to operate out of

Gustavus. NPS believes that this comment has merit. To ensure that

Bartlett Cove serves as a base for in-park activities (and not as a

base for out-of-park sport fishing), NPS will assess vessels that exit

the bay an additional entry upon return. Additionally, NPS will require

Bartlett Cove-based charters to submit a park-based operations plan. As

the commenter notes, out-of-park activities can better be served from

Gustavus. This serves both the park (by reducing traffic through much

of the lower bay whale waters) and the park visitor (by providing

incentive for use of limited charter entries within the park). Local

community economies may also benefit from visitors seeking charter

sport fishing opportunities out of the park.

Bareboat Charters

As commonly used, ``bareboat charter'' means chartering a vessel

without master (captain) or crew. Comments ranged from one that

suggested prohibition of bareboat charters, except by companies

registered by park management and familiar with park management

principles, to one of support for bareboat rentals. One commenter

suggested that the bareboat charters should not take permits from the

pool of permits available to private citizens wishing to enter the park

with their own boats. The NPS has reconsidered its position on bareboat

charters. Basing another commercial service in Bartlett Cove would

increase congestion at the already over-taxed facility. If the demand

exists for a bareboat operation, commercial services could be more

appropriately based out of Gustavus. NPS would require bareboat

charters wanting access to the park to acquire an entry permit (and

attend the orientation program), as would any other private boater.

NPS Boats

Several commenters wrote to suggest that NPS consider its own

vessel use when proposing to restrict private motorized vessel access.

One commenter stated that the VMP/EA did not analyze the potential

increase in government vessel operations resulting from additional

monitoring, research, resource protection and incident responses

associated with this rulemaking. NPS examined its own vessel activities

as part of the VMP/EA (see, p. 4.7-1). The NPS anticipates only a

slight increase in its own vessel traffic as a result of the modest

increase in other traffic authorized by this rulemaking. That increase

will consist primarily of naturalist transfers to and from the

additional cruise ships as the ships enter and exit the bay, and

increased research activities. Other commenters were concerned that

closures to motorized vessels, including research vessels during the

summer season, would severely handicap on-going scientific studies in

Glacier Bay. NPS may approve research activities for closed areas

pursuant to the administrative exception contained in these

regulations.

Wildlife Protection/Wilderness Waters

Generally, support for and opposition to wilderness water closures

was equally divided. Commenters sometimes supported particular closures

but not others. Specific comments concerning Dundas Bay opposed the

proposed closure. Dundas Bay will remain open to motor vessels, in part

to allow Elfin Cove residents motorized access to sheltered park

waters. In response to commenters, NPS would like to assure the public

that it has drawn virtually all of the closure boundaries to allow

access to anchorages at the mouths of the various areas. Wildlife

protection/wilderness water closures will take effect annually on May 1

(as in the proposed rule).

East Arm Waters

Generally, support for and opposition to east arm water closures to

motorized vessels was equally divided. However, some commenters from

both ``camps'' preferred a closure higher up the east arm. NPS has

adopted this modification, which allows more motor vessel access to the

east arm and its anchorages. It

[[Page 27014]]

provides kayakers with solitude, wilderness recreation and access to

tidewater glaciers without motorized vessel disturbance without having

to undertake a multi-day trip. The closure also mitigates a safety

concern associated with kayaker susceptibility to being overturned by

vessel wakes. Another comment that the NPS has adopted suggested

splitting the summer season and alternating closures in some areas.

This suggestion readily lent itself to the upper east arm: June 1

through July 15, the park will close Muir Inlet waters north of the

McBride Glacier to motor vessels and seaplane landings, and July 16

through August 31, the park will close Wachusett Inlet (except the

first anchorage) to motor vessels and seaplane landings. The

alternating motor vessel closures in the east arm will allow, both

visitors using motors and visitors seeking quiet, summertime access to

an east arm tidewater glacier and the natural resources of Muir or

Wachusett Inlets on a time sharing basis. Furthermore, alternating the

closures allows the east arm to continue to serve as a motor vessel

destination, thereby dispersing vessel use generally and reducing

vessel crowding in the west arm.

Bartlett Cove Access

Two commenters suggested alternative entry demarcation lines to the

current line at the mouth of Glacier Bay (Point Carolus-to- Point

Gustavus). The suggestions would leave access to Bartlett Cove

unrestricted. The adoption of these suggestions would result in an

unpredictable increase in vessel traffic throughout the area of the

park that attracts the highest concentration of whales, i.e., lower bay

whale waters. Therefore, NPS cannot adopt either of these suggestions.

Until additional monitoring and studies have been completed and

information has been developed on the interaction of vessels and whales

that supports specific findings of no adverse impact, NPS cannot

authorize increased access to Bartlett Cove.

Orientation Program

One commenter suggested that NPS waive the orientation program on

repeat visits. The proposed and final regulations give the

superintendent discretion to waive the program.

Other Restrictions

In response to comments, NPS has modified the superintendent's

discretionary closure authority. NPS previously determined and still

recognizes the need to provide temporary and intermittent

administrative remedies to protect whales through imposition of public-

use limits, whale-water designations, and other operating restrictions.

See, 50 FR 19880, 19881-82 (May 10, 1985). The environmentally safe

implementation and maintenance of the increased public-use levels

authorized in this rulemaking require that the superintendent have the

necessary authority to modify public use levels and establish vessel

restrictions in response to changing conditions in order to protect all

the park's resources. The final rule authorizes the superintendent to

impose such conditions separately or as permit requirements to ensure

the least possible impact to park resources, as whale and other

wildlife feeding, breeding, and molting sites shift to new areas in the

dynamic sea and landscape of the rebounding bay.

Section-by-Section Analysis

Section 13.65(b)(1) of the regulations defines various types of

vessels and other terms used in this section. The rule retains most of

the definitions without significant revision from the existing

regulations. However, there are exceptions:

The rule revises the terms ``cruise ship,'' ``charter vessel'' and

``tour vessel.'' In addition to some technical revisions, the proposed

definitions include a measurement standard based on the rules of the

International Convention on Tonnage Measurements of Ships, 1969.

Congress has provided for recognition of these rules that are generally

used to measure and certify foreign hull vessels. See, Omnibus Budget

Reconciliation Act of 1986, Title V--Maritime Programs, Part J--

Measurement of Vessels, P.L. 99-509, 100 Stat. 1919 (codified as

amended in scattered sections of 46 U.S.C.). The NPS has adopted a

definition of cruise ship that includes a vessel with an International

Tonnage Certificate at or exceeding 2,000 tons gross (that carries

passengers for hire). The rule defines a vessel with an International

Tonnage Certificate less than 2,000 tons gross (that carries passengers

for hire) as a tour vessel or a charter vessel. The rule also retains

the existing standards, based on the U.S. method for measuring vessels.

The rule modifies the term ``charter vessel'' to allow scheduled camper

or kayak drop-off and pick-up service. The rule expands the terms

``operate'' and ``operating'' to include the actual or constructive

possession of a vessel. NPS has done this to enable enforcement action

against vessels violating permit or closed-water restrictions when the

vessel is not underway at the time of the violation. The rule adopts

definitions for two new terms as a means to retain, clarify, and codify

both restricted and permitted activities that were authorized and

implemented under the existing 13.65(b)(2)(iii) whale-waters

regulations. The first, ``speed through the water,'' is analogous in

aeronautical terms to ``airspeed,'' as opposed to ``ground speed.'' NPS

has measured and enforced whale-water speed limits in this manner to

prevent collisions between vessels moving rapidly ``up-current'' and

whales or other marine mammals that are drifting ``down'' in the tidal

current. These speed limits also lower the level of underwater noise by

limiting high engine revolutions that can disrupt whale feeding

activities. The rule defines the term ``transit'' to allow vessels to

approach perpendicularly and land on an otherwise unrestricted shore

within designated whale waters in order to view or photograph wildlife

(except whales), camp or participate in any other park activity. The

rule deletes the term ``whale season'' and includes the dates on which

closures or restrictions begin and end as part of the regulation.

Section 13.65(b)(2) of the regulations authorizes a 30-percent

increase in cruise ship traffic during the 1996 and 1997 summer seasons

(June 1 through August 31). However, there would be no increase in the

maximum number of cruise ships permitted to use the bay on any given

day (two). Rather, this increase in traffic will be absorbed by

distributing the additional entries throughout the summer season.

Additionally, but contingent upon the completion of studies

demonstrating that a further increase in cruise ship traffic would be

consistent with protection of the values and purposes of Glacier Bay

National Park and Preserve, the regulations could allow up to an

additional 42-percent increase (from existing 1995 levels) in cruise

ship traffic beginning with the 1998 summer season. For each summer

season thereafter, the regulations authorize the NPS to adjust the

number of cruise ship entries, subject to the maximum daily limit of

two vessels, based on available scientific and other information and

applicable authorities. In determining whether to authorize future

increases in cruise ship entries, NPS must err on the side of

protecting park resources and values, particularly where the scientific

information is lacking, ambiguous, or inconclusive. NPS will publish

any future adjustment to cruise ship traffic within the scope of these

regulations in the ``Notice'' section of the Federal Register, with

opportunity for comment.

[[Page 27015]]

The rule revises current restrictions on seasonal entries and use-days

for charter and private boats to authorize an 8-percent increase in

charter boat traffic and a 15-percent increase in private boat traffic

beginning with the 1996 summer season.

This section also provides for reinitiation of consultation with

NMFS to ensure that the potential vessel traffic contemplated by these

regulations does not affect endangered or threatened species,

particularly in Glacier Bay National Park and Preserve. The section

also requires the director of the NPS to reduce vessel entry and use

levels if necessary to protect the values and purposes of Glacier Bay

National Park and Preserve.

Section 13.65(b)(2)(A) requires cruise ships to prepare, and abide

by, an NPS-approved air, water and underwater noise pollution

minimization plan to be permitted to enter Glacier Bay. Section

13.65(b)(2)(B) clarifies that each cruise ship company's assessment of

the impacts of its activities on Glacier Bay resources must correspond

to the NPS research, inventory and monitoring plan. Section 13.65(b)(2)

also incorporates the permit requirements of section 13.65(b)(3) of the

existing regulations, with minor modifications. Paragraph (b)(2)(i)(B)

generally requires private motor vessels entering the bay through the

mouth to stop at the Bartlett Cove Ranger Station for orientation

before proceeding up bay. Vessels that have previously visited the bay

may receive a waiver. Paragraph (b)(2)(ii)(E) requires concessioner

vessels to notify the Bartlett Cove Ranger Station within the 48 hours

prior to, or immediately upon, entry to the bay. Paragraph

(b)(2)(iii(C) allows private vessels to launch a motorized skiff or

tender after anchoring. Paragraph (b)(2)(iv) prohibits permit and

operating violations and clarifies the superintendent's authority to

revoke or deny a permit based on a violation.

Section 13.65(b)(3) of the regulations retains the existing

prohibitions on operating a vessel within one-quarter nautical mile of

a whale, and on pursuing or attempting to pursue a whale. It also

retains the superintendent's authority to designate temporary whale

waters and establish vessel use and speed restrictions. The regulations

identify, and designate as whale waters, areas in which seasonal

restrictions have applied on a recurring basis. The regulations codify

the restrictions that were implemented pursuant to section 13.65(b)(2)

of the existing regulations, i.e., mid-channel transit through these

waters, and in the case of lower bay waters, speeds not to exceed 20

knots.

As whales have been known to arrive at the mouth of Glacier Bay in

May, the 20-knot speed limit and the requirement that vessels in

transit stay one nautical mile off-shore become effective in the

designated lower bay whale waters each year on May 15. This earlier

date ensures that whales arriving at the mouth of Glacier Bay in late

spring are able to pass with minimal disturbance through the narrow

entrance to Glacier Bay to access feeding areas. When whales are

present, the superintendent will impose a 10-knot speed limit

((b)(3)(v)(A)(2)). The rule also establishes a speed restriction to

mitigate mortality and stress of breeding and molting harbor seals

resulting from large vessel wakes in the narrow confines of the Johns

Hopkins Inlet (paragraph (B)).

Seasonal closures and operating restrictions concerning the Spider

Island group and Johns Hopkins Inlet that appear in paragraphs

(b)(3)(vi) (C)-(F) will also protect the park's large concentration of

breeding harbor seals. Except for the continuing Johns Hopkins Inlet

cruise ship closure, the park has previously enforced these

restrictions as park compendium regulations. Paragraphs (b)(3)(vi) (A)-

(B) afford year-round protection to Steller sea lions and their haul-

outs, and nesting sea bird colonies are protected seasonally and

through year-round vessel landing and foot traffic closure of colonial

nesting islands. Park compendium regulations previously protected these

small islands seasonally. Continuing these restrictions year-round will

reduce impacts to vegetation that is important to nesting birds and

will otherwise protect this sensitive nesting habitat from trampling.

These closures are consistent with NMFS and FWS recommendations.

Paragraph (b)(3)(vi)(G) advises park visitors that the distances

established by this rulemaking to be maintained between visitors and

wildlife are minimum distances; 36 CFR 2.2 (wildlife protection)

requires that greater distances be maintained from wildlife if it is

likely that wildlife may be disturbed or frightened.

Seasonal water (area) closures for motor vessels protect nesting

sea birds as well as molting and feeding waterfowl (paragraphs

(b)(3)(vii)(A) (1)-(4)). These closures also protect harbor seal haul-

outs associated with pupping and molting activities (paragraph (4)).

NPS previously proposed similar closures for these areas (48 FR 14978,

April 6, 1983). That rulemaking also recognized the importance of

sheltering the unique concentrations of marine mammals and birds in

these areas from motorized disruption during the critical months of

feeding, breeding, nesting and rearing of young. With the exception of

Rendu Inlet, these areas contain, or are approached through, shallow

areas that are hazardous to navigate in motor vessels.

Paragraphs (b)(3)(vii) (B)-(C) adopt alternating motor vessel

closures for the waters of the Muir Inlet north of McBride Glacier

(June 1 through July 15) and the Wachusett Inlet (July 16 through

August 31). NPS adopts these closures to prevent detriment to park

resource values, including the opportunity for kayaking, camping, and

engaging in other backcountry use away from the noise and intrusion of

motor vessel traffic. Motor vessels can use these areas on a time-

sharing basis. As discussed above, the NPS believes that the closures

adopted in paragraphs (b)(3)(vi) and (b)(3)(vii)(A) are necessary to

protect the natural resource values of Glacier Bay; and the closures

adopted in paragraphs (b)(3)(vii) (B)-(C) are necessary to protect the

visitor experience and recreational resource values of Glacier Bay. All

closures are promulgated in accordance with ANILCA Section 1110(a) to

prevent detriment to the resource values of Glacier Bay National Park

and Preserve, including its wildlife and other natural resources as

well as its opportunities for quiet and solitude.

To provide quiet at popular anchorages, section 13.65(b)(3)(viii)

restricts generator and other non-propulsive motor use during the

evening hours of summer.

Section 13.65(b)(3)(ix) clarifies the duties, responsibilities, and

authority of the superintendent to regulate public use in response to

changing conditions.

Section 13.65(b)(4) of the regulations adopts restrictions on

marine vessel air pollution (stack) emissions.

NPS is addressing section 13.65(b)(5)-(6) of the existing

regulations, Restricted Commercial Fishing Harvest, separately (see,

proposed rules at 56 FR 37262 (August 5, 1991)); commercial fishing is

not considered as part of this rulemaking. However, the seasonal

closure of water areas to vessels ((b)(3)(vi) and (b)(3)(vii)) also

applies to commercial fishing boats.

Drafting Information

The primary authors of this rulemaking are Russel J. Wilson, Alaska

Field Office, National Park Service, and Molly N. Ross, Office of the

Assistant Secretary for Fish and Wildlife and Parks, Department of the

Interior, Washington, D.C. Glen Yankus, NPS Alaska System Support

Office, and

[[Page 27016]]

Randy King, Kevin Apgar and Mary Beth Moss, Glacier Bay National Park

and Preserve also made significant contributions.

Administrative Procedures Act

In accordance with the Administrative Procedures Act (5 U.S.C.

553(d)(3)), the NPS has determined that publishing this rule 30 days

prior to the rule becoming effective would delay effective

implementation of this plan for the rapidly approaching summer season.

This would be contrary to the public interest and the protection of

park resources. Approximately 45 days were lost during the preparation

of this plan due to the government shutdown. Wildlife protection

provisions contained in the regulations are intended to take effect on

May 1, and vessel traffic permit provisions apply as of June 1. NPS

requires some lead time in order to inform the public and handle permit

scheduling. Since NPS believes that all elements of this rule are

inextricably linked--e.g., the increases in vessel traffic must be

balanced by the environmental protections--NPS has decided to invoke

the ``good cause'' exception and make the entire rule effective upon

publication. Therefore, under the ``good cause'' exception of the

Administrative Procedures Act (5 U.S.C. 553(d)(3)), and as discussed

above, it has been determined that this rulemaking is excepted from the

30 day delay in effective date, and shall become effective on the date

published in the Federal Register.

Paperwork Reduction Act

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.), the information collection requirements contained in this

final rule at Sec. 13.65(b)(2), have been approved by the Office of

Management and Budget and assigned clearance number 1024-0026. This

information is being collected to solicit information that is necessary

for the Superintendent to issue motor vessel permits. The public is

being asked to provide this information in order for the park to track

the number of permits issued and to whom they are issued. Should the

park need to contact the permittees, a mechanism will be in place to

allow them to do so.

Additionally, cruise ships, tour vessels and charter vessels will

be issued permits in accordance with NPS concession authorizations. To

obtain or renew an entry permit, cruise ship companies will prepare

and, after approval, implement a pollution minimization plan to assure,

to the fullest extent possible, that any ship permitted to travel

within Glacier Bay will apply the industry's best approaches toward

vessel oil-spill response planning and prevention and minimization of

air, water and underwater noise pollution while operating in Glacier

Bay. Such plan will be submitted to the superintendent, who may approve

or disapprove the plan.

The information will be used to grant administrative benefits and

there is an obligation to respond.

Compliance With Other Laws

This final rule has been reviewed under Executive Order 12866. The

Department of the Interior certifies that this document will not have a

significant economic effect on a substantial number of small entities

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

This regulation was subject to National Environmental Policy Act

compliance and an Environmental Assessment (EA) was completed. Based on

the information contained in the EA, a Finding of No Significant Impact

(FONSI) was determined.

List of Subjects in 36 CFR Part 13

Alaska, National parks, Reporting and recordkeeping requirements.

In consideration of the foregoing, the NPS amends 36 CFR Chapter I

as follows:

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

1. The authority citation for part 13 is revised 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.

Subpart C--Special Regulations--Specific Park Areas in Alaska

2. Section 13.65 is amended by revising the heading of paragraph

(b) and paragraphs (b)(1) through (b)(4) to read as follows:

Sec. 13.65 Glacier Bay National Park and Preserve.

* * * * *

(b) Resource protection and vessel management--(1) Definitions. As

used in this section:

Charter vessel means any motor vessel under 100 tons gross (U.S.

System) or 2,000 tons gross (International Convention System) that is

rated to carry up to 49 passengers, and is available for hire on an

unscheduled basis; except a charter vessel used to provide a scheduled

camper or kayak drop off service.

Commercial fishing vessel means any motor vessel conducting fishing

activities under the appropriate commercial fishing licenses as

required and defined by the State of Alaska.

Cruise ship means any motor vessel at or over 100 tons gross (U.S.

System) or 2,000 tons gross (International Convention System) carrying

passengers for hire.

Entry means each time a motor vessel passes the mouth of Glacier

Bay into the bay; each time a private vessel activates or extends a

permit; each time a motor vessel based at or launched from Bartlett

Cove leaves the dock area on the way into Glacier Bay, except a private

vessel based at Bartlett Cove that is gaining access or egress to or

from outside Glacier Bay; the first time a local private vessel uses a

day of the seven use-day permit; or each time a motor vessel is

launched from another vessel within Glacier Bay, except a motor vessel

singularly launched from a permitted motor vessel and operated only

while the permitted vessel remains at anchor, or a motor vessel

launched and operated from a permitted motor vessel while that vessel

is not under way and in accordance with a concession agreement.

Glacier Bay means all marine waters contiguous with Glacier Bay,

lying north of an imaginary line between Point Gustavus and Point

Carolus.

Motor vessel means any vessel, other than a seaplane, propelled or

capable of being propelled by machinery (including steam), whether or

not such machinery is the principal source of power, except a skiff or

tender under tow or carried on board another vessel.

Operate or Operating includes the actual or constructive possession

of a vessel or motor vessel.

Private vessel means any motor vessel used for recreation that is

not engaged in commercial transport of passengers, commercial fishing

or official government business.

Pursue means to alter the course or speed of a vessel or a seaplane

in a manner that results in retaining a vessel, or a seaplane operating

on the water, at a distance less than one-half nautical mile from a

whale.

Speed through the water means the speed that a vessel moves through

the water (which itself may be moving); as distinguished from ``speed

over the ground.''

Tour vessel means any motor vessel under 100 tons gross (U.S.

System) or 2,000 tons gross (International Convention System) that is

rated to carry more than 49 passengers, or any smaller vessel that

conducts tours or provides transportation at regularly scheduled times

along a regularly scheduled route.

[[Page 27017]]

Transit means to operate a motor vessel under power and

continuously so as to accomplish one-half nautical mile of littoral

(i.e., along the shore) travel.

Vessel includes every type or description of craft used as a means

of transportation on the water, including a buoyant device permitting

or capable of free flotation and a seaplane while operating on the

water.

Vessel use-day means any continuous period of time that a motor

vessel is in Glacier Bay between the hours of 12 midnight on one day to

12 midnight the next day.

Whale means any humpback whale (Megaptera novaeangliae).

Whale waters means any portion of Glacier Bay, designated by the

superintendent, having a high probability of whale occupancy, based

upon recent sighting and/or past patterns of occurrence.

(2) Permits. The superintendent will issue permits for private

motor vessels in accordance with this part and for cruise ships, tour

vessels, and charter vessels in accordance with National Park Service

concession authorizations and this part.

(i) Private vessel permits and conditions. Each private motor

vessel must have a permit to enter Glacier Bay June 1 through August

31.

(A) The superintendent may establish conditions regulating how

permits can be obtained, whom a vessel operator must contact when

entering or leaving Glacier Bay, designated anchorages, the maximum

length of stay in Glacier Bay, and other appropriate conditions.

(B) June 1 through August 31, upon entering Glacier Bay through the

mouth, the operator of a private motor vessel must report directly to

the Bartlett Cove Ranger Station for orientation.

(1) Failing to report as required is prohibited.

(2) The superintendent may waive this requirement before or upon

entry.

(ii) Commercial vessel permits and conditions. Each commercially

operated motor vessel must have the required permit(s) to enter Glacier

Bay.

(A) To obtain or renew an entry permit, a cruise ship company must

submit and, after approval, implement a pollution minimization plan.

The plan must ensure, to the fullest extent possible, that any ship

permitted to travel within Glacier Bay will apply the industry's best

approaches toward vessel oil-spill response planning and prevention and

minimization of air and underwater noise pollution while operating in

Glacier Bay. The superintendent will approve or disapprove the plan.

(B) Each cruise ship company must assess the impacts of its

activities on Glacier Bay resources pursuant to the NPS research,

inventory and monitoring plan as specified in the applicable concession

permit.

(C) The superintendent at any time may impose operating conditions

to prevent or mitigate air pollution, water pollution, underwater noise

pollution or other effects of cruise ship operation.

(D) The superintendent will immediately suspend the entry permit(s)

of any cruise ship that fails to submit, implement or comply with a

pollution minimization plan or additional operating condition.

(E) A commercial vessel, except a commercial fishing vessel, is

prohibited from entering Glacier Bay unless the operator notifies the

Bartlett Cove Ranger Station of the vessel's entry immediately upon

entry or within the 48 hours before entry.

(F) Off-boat activity from a commercial vessel is prohibited,

unless the superintendent allows it under conditions that the

superintendent establishes.

(iii) Exceptions from entry permit requirement. A permit is not

required to enter Glacier Bay when:

(A) A motor vessel is engaged in official business of the state or

federal government.

(B) A private motor vessel based at Bartlett Cove is transiting

between Bartlett Cove and waters outside Glacier Bay, or is operated in

Bartlett Cove in waters bounded by the public and administrative docks.

(C) A motor vessel is singularly launched from a permitted motor

vessel and operated only while the permitted motor vessel remains at

anchor, or a motor vessel is launched and operated in accordance with a

concession agreement from a permitted motor vessel while that vessel is

not underway.

(D) A commercial fishing vessel otherwise permitted under all

applicable authorities is actually engaged in commercial fishing within

Glacier Bay.

(E) The superintendent grants a vessel safe harbor at Bartlett

Cove.

(iv) Prohibitions. (A) Operating a motor vessel in Glacier Bay

without a required permit is prohibited.

(B) Violating a term or condition of a permit or an operating

condition or restriction issued or imposed pursuant to this chapter is

prohibited.

(C) The superintendent may immediately suspend or revoke a permit

or deny a future permit request as a result of a violation of a

provision of this chapter.

(v) Restrictions on vessel entry. The superintendent will allow

vessel entry in accordance with the following table:

----------------------------------------------------------------------------------------------------------------

Allowable Total

vessel Total vessel

Type of vessel use days entries use days Period covered by limitation

per day allowed allowed

----------------------------------------------------------------------------------------------------------------

Cruise ship.................................. 2 (\1\) (\1\) Year round.

Tour vessel.................................. 3 ......... ......... Year round.

Charter vessel............................... 6 312 552 June 1-Aug. 31.

Private vessel............................... 25 468 1,971 June 1-Aug. 31.

----------------------------------------------------------------------------------------------------------------

\1\ See paragraphs (b)(2)(v) (A) through (C) of this section.

(A) By October 1, 1996, the superintendent will reinitiate

consultation with the National Marine Fisheries Service (NMFS) and

request a biological opinion under section 7 of the Endangered Species

Act. The superintendent will request that NMFS assess and analyze any

effects of vessel traffic authorized by this section, on the endangered

and threatened species that occur in or use Glacier Bay National Park

and Preserve.

(1) Based on this biological opinion, applicable authority, and any

other relevant information, the director shall reduce the vessel entry

and use levels for any or all categories of vessels in this section

effective for the 1998 season or any year thereafter, if required to

assure protection of the values and purposes of Glacier Bay National

Park and Preserve.

[[Page 27018]]

(2) The director will publish a document in the Federal Register on

any revision in the number of seasonal entries and use days under this

paragraph (b)(2)(v), with an opportunity for public comment.

(B) By October 1, 1997, the superintendent will determine, with the

director's approval, whether studies have been completed and sufficient

scientific and other information has been developed to support an

increase in cruise ship entries for the 1998 summer season (June 1

through August 31) while assuring protection of the values and purposes

of Glacier Bay National Park and Preserve. Any increase will be subject

to the maximum daily limit of two vessel use-days. If the

superintendent recommends an increase, the superintendent will publish

a document of the increase in the Federal Register with an opportunity

for public comments.

(C) By October 1 of each year (beginning in 1998), the

superintendent will determine, with the director's approval, the number

of cruise ship entries for the following summer season (June 1 through

August 31). This determination will be based upon available scientific

and other information and applicable authorities. The number will be

subject to the maximum daily limit of two vessel use-days. The

superintendent will publish a document of any revision in seasonal

entries in the Federal Register with an opportunity for public comment.

(D) Nothing in this paragraph will be construed to prevent the

superintendent from taking any action at any time to assure protection

of the values and purposes of Glacier Bay National Park and Preserve.

(3) Operating restrictions. (i) Operating a vessel within one-

quarter nautical mile of a whale is prohibited, except for a commercial

fishing vessel actually trolling or setting or pulling long lines or

crab pots as otherwise authorized by the superintendent.

(ii) The operator of a vessel accidentally positioned within one-

quarter nautical mile of a whale shall immediately slow the vessel to

ten knots or less, without shifting into reverse unless impact is

likely. The operator shall then direct or maintain the vessel on as

steady a course as possible away from the whale until at least one-

quarter nautical mile of separation is established. Failure to take

such action is prohibited.

(iii) Pursuing or attempting to pursue a whale is prohibited.

(iv) Whale water restrictions. (A) May 15 through August 31, the

following Glacier Bay waters are designated as whale waters.

(1) Lower bay waters, defined as waters north of an imaginary line

drawn from Point Carolus to Point Gustavus; and south of an imaginary

line drawn from the northernmost point of Lars Island across the

northernmost point of Strawberry Island to the point where it

intersects the line that defines the Beardslee Island group, as

described in paragraph (b)(3)(vii)(A)(4) of this section, and following

that line south and west to the Bartlett Cove shore.

(2) [Reserved]

(B) June 1 through August 31, the following Glacier Bay waters are

designated as whale waters.

(1) Whidbey Passage waters, defined as waters north of an imaginary

line drawn from the northernmost point of Lars Island to the

northernmost point of Strawberry Island; west of imaginary lines drawn

from the northernmost point of Strawberry Island to the southernmost

point of Willoughby Island, the northernmost point of Willoughby Island

(proper) to the southernmost point of Francis Island, the northernmost

point of Francis Island to the southernmost point of Drake Island; and

south of the northernmost point of Drake Island to the northernmost

point of the Marble Mountain peninsula.

(2) East Arm Entrance waters, defined as waters north of an

imaginary line drawn from the southernmost point of Sebree Island to

the northernmost point of Sturgess Island, and from there to the

westernmost point of the unnamed island south of Puffin Island (that

comprises the south shore of North Sandy Cove); and south of an

imaginary line drawn from Caroline Point across the northernmost point

of Garforth Island to shore.

(3) Russell Island Passage waters, defined as waters enclosed by

imaginary lines drawn from: the easternmost point of Russell Island due

east to shore, and from the westernmost point of Russell Island due

north to shore.

(C) The superintendent may designate temporary whale waters and

impose motor vessel speed restrictions in whale waters. Maps of

temporary whale waters and notice of vessel speed restrictions imposed

pursuant to this paragraph (b)(3)(iv)(C) shall be made available to the

public at park offices at Bartlett Cove and Juneau, Alaska, and shall

be submitted to the U.S. Coast Guard for publication as a ``Notice to

Mariners.''

(D) Violation of a whale water restriction is prohibited. The

following restrictions apply in designated whale waters:

(1) Except on vessels actually fishing as otherwise authorized the

superintendent or vessels operating solely under sail, while in

transit, operators of motor vessels over 18 feet in length will in all

cases where the width of the water permits, maintain a distance of at

least one nautical mile from shore, and, in narrower areas will

navigate in mid-channel: Provided, however, that unless other

restrictions apply, operators may perpendicularly approach or land on

shore (i.e., by the most direct line to shore) through designated whale

waters.

(2) Motor vessel speed limits established by the superintendent

pursuant to paragraph (b)(3)(iv)(C) of this section.

(v) Speed restrictions. (A) May 15 through August 31, in the waters

of the lower bay as defined in paragraph (b)(3)(iv)(A)(1) of this

section, the following are prohibited:

(1) Operating a motor vessel at more than 20 knots speed through

the water; or

(2) Operating a motor vessel at more than 10 knots speed through

the water, when the superintendent has designated a maximum speed of 10

knots (due to the presence of whales).

(B) July 1 through August 31, operating a motor vessel on Johns

Hopkins Inlet south of 58 deg.54.2'N. latitude (an imaginary line

running approximately due west from Jaw Point) at more than 10 knots

speed through the water is prohibited.

(vi) Closed waters, islands and other areas. The following are

prohibited:

(A) Operating a vessel or otherwise approaching within 100 yards of

South Marble Island; or Flapjack Island; or any of the three small

unnamed islets approximately one nautical mile southeast of Flapjack

Island; or Eider Island; or Boulder Island; or Geikie Rock; or Lone

Island; or the northern three-fourths of Leland Island (north of

58 deg.39.1'N. latitude; or any of the four small unnamed islands

located approximately one nautical mile north (one island), and 1.5

nautical miles east (three islands) of the easternmost point of Russell

Island; or Graves Rocks (on the outer coast); or Cormorant Rock, or any

adjacent rock, including all of the near-shore rocks located along the

outer coast, for a distance of 1\1/2\ nautical miles, southeast from

the mouth of Lituya Bay; or the surf line along the outer coast, for a

distance of 1\1/2\ nautical miles northwest of the mouth of the glacial

river at Cape Fairweather.

(B) Operating a vessel or otherwise approaching within 100 yards of

a Steller (northern) sea lion (Eumetopias jubatus) hauled-out on land

or a rock or

[[Page 27019]]

a nesting seabird colony: Provided, however, that vessels may approach

within 50 yards of that part of South Marble Island lying south of

58 deg.38.6'N. latitude (approximately the southern one-half of South

Marble Island) to view seabirds.

(C) May 1 through August 31, operating a vessel, or otherwise

approaching within \1/4\ nautical mile of, Spider Island or any of the

four small islets lying immediately west of Spider Island.

(D) May 1 through August 31, operating a cruise ship on Johns

Hopkins Inlet waters south of 58 deg.54.2'N. latitude (an imaginary

line running approximately due west from Jaw Point).

(E) May 1 through June 30, operating a vessel or a seaplane on

Johns Hopkins Inlet waters south of 58 deg.54.2'N. latitude (an

imaginary line running approximately due west from Jaw Point).

(F) July 1 through August 31, operating a vessel or a seaplane on

Johns Hopkins Inlet waters south of 58 deg.54.2'N. latitude (an

imaginary line running approximately due west from Jaw Point), within

\1/4\ nautical mile of a seal hauled out on ice; except when safe

navigation requires, and then with due care to maintain the \1/4\

nautical mile distance from concentrations of seals.

(G) Restrictions imposed in this paragraph (b)(3)(vi) are minimum

distances. Park visitors are advised that protection of park wildlife

may require that visitors maintain greater distances from wildlife.

See, 36 CFR 2.2 (Wildlife protection).

(vii) Closed waters, motor vessels and seaplanes. (A) May 1 through

September 15, operating a motor vessel or a seaplane on the following

water is prohibited:

(1) Adams Inlet, east of 135 deg.59.2'W. longitude (an imaginary

line running approximately due north and south through the charted (5)

obstruction located approximately 2\1/4\ nautical miles east of Pt.

George).

(2) Rendu Inlet, north of the wilderness boundary at the mouth of

the inlet.

(3) Hugh Miller complex, including Scidmore Bay and Charpentier

Inlet, west of the wilderness boundary at the mouth of the Hugh Miller

Inlet.

(4) Waters within the Beardslee Island group (except the Beardslee

Entrance), that is defined by an imaginary line running due west from

shore to the easternmost point of Lester Island, then along the south

shore of Lester Island to its western end, then to the southernmost

point of Young Island, then north along the west shore and east along

the north shore of Young Island to its northernmost point, then at a

bearing of 15 deg. true to an imaginary point located one nautical mile

due east of the easternmost point of Strawberry Island, then at a

bearing of 345 deg. true to the northernmost point of Flapjack Island,

then at a bearing of 81 deg. true to the northernmost point of the

unnamed island immediately to the east of Flapjack Island, then

southeasterly to the northernmost point of the next unnamed island,

then southeasterly along the (Beartrack Cove) shore of that island to

its easternmost point, then due east to shore.

(B) June 1 through July 15, operating a motor vessel or a seaplane

on the waters of Muir Inlet north of 59 deg.02.7'N. latitude (an

imaginary line running approximately due west from the point of land on

the east shore approximately 1 nautical mile north of the McBride

Glacier) is prohibited.

(C) July 16 through August 31, operating a motor vessel or a

seaplane on the waters of Wachusett Inlet west of 136 deg.12.0'W

longitude (an imaginary line running approximately due north from the

point of land on the south shore of Wachusett Inlet approximately 2\1/

4\ nautical miles west of Rowlee Point) is prohibited.

(viii) Noise restrictions. June 1 through August 31, except on

vessels in transit or as otherwise permitted by the superintendent, the

use of generators or other non-propulsive motors (except a windless) is

prohibited from 10:00 p.m. until 6:00 a.m. in Reid Inlet, Blue Mouse

Cove and North Sandy Cove.

(ix) Other restrictions. Notwithstanding any other provision of

this part, due to the rapidly emerging and changing ecosystems of, and

for the protection of wildlife in Glacier Bay National Park and

Preserve, including but not limited to whales, seals, sea lions,

nesting birds and molting waterfowl:

(A) Pursuant to Secs. 1.5 and 1.6 of this chapter, the

superintendent may establish, designate, implement and enforce

restrictions and public use limits and terminate such restrictions and

public use limits.

(B) The public shall be notified of restrictions or public use

limits imposed under this paragraph (b)(3)(ix) and the termination or

relaxation of such, in accordance with Sec. 1.7 of this chapter, and by

submission to the U.S. Coast Guard for publication as a ``Notice to

Mariners,'' where appropriate.

(C) The superintendent shall make rules for the safe and equitable

use of Bartlett Cove waters and for park docks. The public shall be

notified of these rules by the posting of a sign or a copy of the rules

at the dock. Failure to obey a sign or posted rule is prohibited.

(x) Closed waters and islands within Glacier Bay as described in

paragraphs (b)(3) (iv) through (vii) of this section are described as

depicted on NOAA Chart #17318 GLACIER BAY (4th Ed., Mar. 6/93)

available to the public at park offices at Bartlett Cove and Juneau,

Alaska.

(xi) Paragraphs (b)(3) (i) through (iii) of this section do not

apply to a vessel being used in connection with federally permitted

whale research or monitoring; other closures and restrictions in this

paragraph (b)(3) do not apply to authorized persons conducting

emergency or law enforcement operations, research or resource

management, park administration/supply, or other necessary patrols.

(4) Marine vessel visible emission standards. Visible emissions

from a marine vessel, excluding condensed water vapor, may not result

in a reduction of visibility through the exhaust effluent of greater

than 20 percent for a period or periods aggregating more than:

(i) Three minutes in any one hour while underway, at berth, or at

anchor; or

(ii) Six minutes in any one hour during initial startup of diesel-

driven vessels; or

(iii) 12 minutes in one hour while anchoring, berthing, getting

underway or maneuvering in Bartlett Cove.

* * * * *

Dated: April 22, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 96-13210 Filed 5-29-96; 8:45 am]

BILLING CODE 4310-70-P