27008 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations

Code, the notice of proposed rulemaking

preceding these regulations was

submitted to the Small Business

Administration for comment on its

impact on small business.

Drafting Information. The principal author

of these regulations is Vincent G. Surabian,

Office of the Assistant Chief Counsel (Income

Tax & Accounting). However, other

personnel from the IRS and Treasury

Department participated in their

development.

List of Subjects

26 CFR Part 31

Employment taxes, Income taxes,

Penalties, Pensions, Railroad retirement,

Reporting and recordkeeping

requirements, Social security,

Unemployment compensation.

26 CFR Part 602

Reporting and recordkeeping

requirements.

Adoption of Amendments to the

Regulations

Accordingly, 26 CFR parts 31 and 602

are amended as follows:

PART 31—EMPLOYMENT TAXES AND

COLLECTION OF INCOME TAX AT

SOURCE

Paragraph 1. The authority citation

for part 31 is amended by removing the

citation for ‘‘Section 31.6011(a)–4T’’ as

follows:

Authority: 26 U.S.C. 7805 * * *.

Par 2. Section 31.6011(a)–4 is

amended by revising paragraph (b) to

read as follows:

§ 31.6011(a)–4 Returns of income tax

withheld.

* * * * *

(b) Withheld from nonpayroll

payments. Every person required to

withhold tax from nonpayroll payments

for calendar year 1994 must make a

return for calendar year 1994 and for

any subsequent calendar year in which

the person is required to withhold such

tax until the person makes a final return

in accordance with § 31.6011(a)–6.

Every person not required to withhold

tax from nonpayroll payments for

calendar year 1994 must make a return

for the first calendar year after 1994 in

which the person is required to

withhold such tax and for any

subsequent calendar year in which the

person is required to withhold such tax

until the person makes a final return in

accordance with § 31.6011(a)–6. Form

945, Annual Return of Withheld Federal

Income Tax, is the form prescribed for

making the return required under this

paragraph (b). Nonpayroll payments

are—

(1) Certain gambling winnings subject

to withholding under section 3402(q);

(2) Retirement pay for services in the

Armed Forces of the United States

subject to withholding under section

3402;

(3) Certain annuities as described in

section 3402(o)(1)(B);

(4) Pensions, annuities, IRAs, and

certain other deferred income subject to

withholding under section 3405; and

(5) Reportable payments subject to

backup withholding under section 3406.

* * * * *

§ 31.6011(a)–4T [Removed]

Par. 3. Section 31.6011(a)–4T is

removed.

PART 602—OMB CONTROL NUMBERS

UNDER THE PAPERWORK

REDUCTION ACT

Par. 4. The authority citation for part

602 continues to read as follows:

Authority: 26 U.S.C. 7805.

§ 602.101 [Amended]

Par. 5. Section 602.101, paragraph (c)

is amended in the table by removing the

entry ‘‘31.6011(a)–4T....1545–1413’’.

Margaret Milner Richardson,

Commissioner of Internal Revenue.

Approved: April 5, 1996.

Leslie Samuels,

Assistant Secretary of the Treasury.

[FR Doc. 96–13398 Filed 5–29–96; 8:45 am]

BILLING CODE 4830–01–P

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.

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
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations 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 usedays 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.
27010 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations

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 longterm 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-fromshore 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.
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations 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
27012 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations

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, foreignflagged 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
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations 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-ofpark 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 ongoing 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
27014 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations

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.
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations 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 NPSapproved 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 yearround 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 nonpropulsive 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
27016 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations

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 § 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.; § 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:

§ 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.
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations 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:

Type of vessel

Allowable

vessel

use days

per day

Total

entries

allowed

Total vessel use

days

allowed

Period covered by

limitation

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.

1See 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.
27018 Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations

(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 usedays. 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 onequarter 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°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°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 11⁄2 nautical

miles, southeast from the mouth of

Lituya Bay; or the surf line along the

outer coast, for a distance of 11⁄2

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
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 / Rules and Regulations 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°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°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°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°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°59.2′W.

longitude (an imaginary line running

approximately due north and south

through the charted (5) obstruction

located approximately 21⁄4 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° true to an imaginary point located

one nautical mile due east of the

easternmost point of Strawberry Island,

then at a bearing of 345° true to the

northernmost point of Flapjack Island,

then at a bearing of 81° 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°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°12.0′W longitude (an imaginary line

running approximately due north from

the point of land on the south shore of

Wachusett Inlet approximately 21⁄4

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 §§ 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 § 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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[ID–1–1–5528a; FRL–5449–2]

Approval and Promulgation of State

Implementation Plans: Idaho

AGENCY: Environmental Protection

Agency.

ACTION: Direct final rule.

SUMMARY: The Environmental Protection

Agency (EPA) approves the State

Implementation Plan submitted by the

State of Idaho for the purpose of

bringing about the attainment of the

National Ambient Air Quality Standards

(NAAQS) for particulate matter with an

aerodynamic diameter less than or equal