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Proposed Rule

Bighorn Canyon National Recreation Area, Personal Watercraft Use

Document Details

Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

National Park Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

The National Park Service (NPS) is proposing to designate areas where personal watercraft (PWC) may be used in Bighorn Canyon National Recreation Area, Montana and Wyoming. This proposed rule implements the provisions of the NPS general regulations authorizing park areas to allow the use of PWC by promulgating a special regulation. The NPS Management Policies 2001 directs individual parks to determine whether PWC use is appropriate for a specific park area based on an evaluation of that area's enabling legislation, resources and values, other visitor uses, and overall management objectives.

DATES:

Comments must be received by July 6, 2004.

ADDRESSES:

Comments on the proposed rule should be sent or hand delivered to Superintendent, Bighorn Canyon NRA, P.O. Box 7458, Fort Smith, MT 59035 or you may hand deliver your comments to the Headquarters at 5 Avenue B, Fort Smith, Montana. Comments may also be sent by e-mail to bica@den.nps.gov. If you comment by e-mail, please include “PWC rule” in the subject line and your name and return address in the body of your Internet message.

For additional information see “Public Participation” under SUPPLEMENTARY INFORMATION below.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Kym Hall, Special Assistant, National Park Service, 1849 C Street, NW., Room 3145, Washington, DC 20240. Phone: (202) 208-4206. E-mail: Kym_Hall@nps.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

Additional Alternatives

The information contained in this proposed rule supports implementation of the preferred alternative for Bighorn Canyon National Recreation Area (NRA) in the Environmental Assessment (EA) published June, 2003. The public should be aware that two other alternatives were presented in the EA, including a no-PWC alternative, and those alternatives should also be reviewed and considered when making comments on this proposed rule.

Personal Watercraft Regulation

On March 21, 2000, the National Park Service published a regulation (36 CFR 3.24) on the management of personal watercraft (PWC) use within all units of the national park system (65 FR 15077). This regulation prohibits PWC use in all national park units unless the NPS determines that this type of water-based recreational activity is appropriate for the specific park unit based on the legislation establishing that park, the park's resources and values, other visitor uses of the area, and overall management objectives. The regulation banned PWC use in all park units effective April 20, 2000, except 21 parks, lakeshores, seashores, and recreation areas. The regulation established a 2-year grace period following the final rule publication to provide these 21 park units time to consider whether PWC use should be permitted to continue.

Description of Bighorn Canyon National Recreation Area

Bighorn Canyon National Recreation Area was established by an act of Congress on October 15, 1966, following the construction of the Yellowtail Dam by the Bureau of Reclamation. This dam, named after the famous Crow chairman Robert Yellowtail, harnessed the waters of the Bighorn River and turned this variable stream into a lake. The most direct route to the southern end of Bighorn is via Montana State road 310 from Billings, Montana, or U.S. Highway 14A from Sheridan, Wyoming.

Bighorn Lake extends approximately 60 miles through Wyoming and Montana, 55 miles of which are held within Bighorn Canyon. The Recreation Area is composed of more than 70,000 acres of land and water, which straddles the northern Wyoming and southern Montana borders. There are two visitor centers and other developed facilities in Fort Smith, Montana, and near Lovell, Wyoming. The Afterbay Lake below the Yellowtail Dam is a good spot for trout fishing and wildlife viewing for ducks, geese, and other animals. The Bighorn River below the Afterbay Dam is a world class trout fishing area.

Purpose of Bighorn Canyon National Recreation Area

The purpose and significance statements listed below are from Bighorn Canyon's Strategic Plan and Master Plan. Bighorn Canyon National Recreation Area was established to:

1. Provide for public outdoor recreation use and enjoyment of Bighorn Lake (also referred to as Yellowtail Reservoir) and lands adjacent thereto within the boundary of the National Recreation Area on NPS lands.

2. Preserve the scenic, scientific, and historic features contributing to public enjoyment of such lands and waters.

3. To coordinate administration of the recreation area with the other purposes of the Yellowtail Reservoir project so that it will best provide for: (1) Public outdoor recreation benefits, (2) preservation of scenic, scientific, and historic features contributing to public enjoyment, and (3) management, utilization, and disposal of renewable natural resources that promotes or is compatible with and does not significantly impair public recreation or scenic, scientific, or historic, or features contributing to public enjoyment.

Significance of Bighorn Canyon National Recreation Area

Bighorn Canyon National Recreation Area is significant for the following reasons:

1. The outstanding scenic and recreational values of the 60-mile long, 12,700 acre Bighorn Lake.

2. The history of over 10,000 years of continuous human habitation. Start Printed Page 25044

3. The contribution the recreation area is making to the preservation of wild horses on the Pryor Mountain Wild Horse Range, of which one-third is located within the recreation area, as well as the preservation of a Bighorn sheep herd that repatriated the area in the early 1970s.

The 19,000 acre Yellowtail Wildlife Habitat, which preserves one of the best examples of a Cottonwood Riparian area remaining in the western United States.

Authority and Jurisdiction

Under the National Park Service's Organic Act of 1916 (Organic Act) (16 U.S.C. 1 et seq.) Congress granted the NPS broad authority to regulate the use of the Federal areas known as national parks. In addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the Secretary of the Interior, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks * * *”

16 U.S.C. 1a-1 states, “The authorization of activities shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established * * *”

As with the United States Coast Guard, NPS's regulatory authority over waters subject to the jurisdiction of the United States, including navigable waters and areas within their ordinary reach, is based upon the Property and Commerce Clauses of the U.S. Constitution. In regard to the NPS, Congress in 1976 directed the NPS to “promulgate and enforce regulations concerning boating and other activities on or relating to waters within areas of the National Park System, including waters subject to the jurisdiction of the United States * * *” (16 U.S.C. 1a-2(h)). In 1996 the NPS published a final rule (61 FR 35136, July 5, 1996) amending 36 CFR 1.2(a)(3) to clarify its authority to regulate activities within the National Park System boundaries occurring on waters subject to the jurisdiction of the United States.

PWC Use at Bighorn Canyon National Recreation Area

Personal watercraft use on Bighorn Lake began during the early 1990s. During 2001, personal watercraft comprised approximately 5% of the boat use on Bighorn Lake. Before the ban was imposed in November 2002, personal watercraft were allowed to operate throughout the national recreation area, but most personal watercraft use occurred at the north end of the lake in the vicinity of Ok-A-Beh Marina. The primary use season is mid-May through mid-September. During the other months the water is generally too cold for PWC use.

Bighorn Canyon has two marinas: Horseshoe Bend and Ok-A-Beh. Both provide gas, rental docks, food, and boater supplies, typically from Memorial Day through Labor Day. Personal watercraft (before the ban) and other watercraft could also enter the lake at Barry's Landing, which has a launching ramp but no marina. Primitive access to the lake is available at the causeway, and access to the Bighorn and Shoshone Rivers is available throughout the Yellowtail Wildlife Habitat. Watercraft may be launched at the Afterbay launch ramp and on the river at the Afterbay and Three-Mile access areas.

Personal watercraft (before the closure) and other watercraft are piloted over the main surface of the lake, along the lakeshore, and in coves and back bays. Boaters may camp at one of the national recreation area's 156 developed campsites or at one of nearly 30 primitive campsites.

No surveys have been conducted regarding the operating hours of personal watercraft at Bighorn Canyon National Recreation Area, though most personal watercraft probably operate between the hours of dawn to dusk. There are currently no State regulations regarding hours of operation in either Montana or Wyoming. Due to the narrowness of Bighorn Lake, most watercraft activity, including use of personal watercraft before the ban, occurs in the several wide sections of the lake, or watercraft traverse back and forth across the lake. Some thrill-seeking activity by personal watercraft users did occur.

Before the ban on PWC use, PWC use was such a small percentage of the overall boating use within Bighorn Canyon that accidents involving PWC operators varied greatly from year to year. Two accidents were recorded at Bighorn Canyon National Recreation Area during the 2000 and 2001 seasons. Both accidents were attributed to the operators' inexperience in operating personal watercraft, allowing them to run into other vessels. Statistics for other vessel accidents per year are similar.

Complaints regarding misuse of personal watercraft are infrequent, and the most commonly reported are wakes in the flat-wake zones near boat launch areas. Bighorn Canyon National Recreation Area has issued citations under Montana and Wyoming State law to personal watercraft users for acts such as wake jumping, under-age riding, and failing to wear flotation devices. The most common citation has been for under-age riding. Montana State law requires riders age 13 and 14 to have a certificate, and riders 12 and younger must be accompanied by an adult. Wyoming State law requires riders to be 16 years old.

Resource Protection and Public Use Issues

Bighorn Canyon National Recreation Area Environmental Assessment

The environmental assessment was available for public review and comment for the period June 9, 2003, through July 11, 2003. To request a copy of the document call 307-548-2251 or write Bighorn Canyon National Recreation Area, Attn: PWC EA, 20 Highway 14A East, Lovell, WY 82431. Requests may be e-mailed to Karen_Schwab@nps.gov. A copy of the Environmental Assessment may also be found at www.nps.gov/​bica/​EAPWC.pdf.

The purpose of the Environmental Assessment was to evaluate a range of alternatives and strategies for the management of PWC use at Bighorn Canyon to ensure the protection of park resources and values while offering recreational opportunities as provided for in the National Recreation Area's enabling legislation, purpose, mission, and goals. The assessment assumed alternatives would be implemented beginning in 2002 and considered a 10-year period, from 2002 to 2012. The assessment also compares each alternative to PWC use before November 7, 2002, when the service-wide closure took effect. In addition, the Environmental Assessment defines such terms as “negligible” and “adverse.” In this document, these terms are used to describe the environmental impact. Refer to the EA for complete definitions.

The environmental assessment evaluates three alternatives addressing the use of personal watercraft at Bighorn Canyon National Recreation Area:

Alternative A—By using a special regulation, the park would reinstate PWC use under those restrictions that applied to PWC use before November 7, 2002, as defined in the park's Superintendent's Compendium. Under this alternative, the following areas would be closed to PWC use:

1. Gated area south of Yellowtail Dam's west side to spillway entrance works, and Bighorn River from Yellowtail Dam to cable 3,500 feet north.

2. At Afterbay Dam—from fenced areas on west side of dam. Start Printed Page 25045

3. Afterbay Lake—Area between dam intake works and buoy/cable line 100 feet west.

4. Government docks as posted.

5. At Ok-A-Beh gas dock (customers excepted).

6. From Yellowtail Dam upstream to the log boom.

7. In addition, docking would be limited at courtesy docks at Ok-A-Beh, Barry's Landing, Horseshoe Bend, and at the Box Canyon Comfort Station Dock (exclusive of adjacent slips) to 15 minutes (official and concession vessels excepted). Crooked Creek Bay would be closed to towing of people and personal watercraft use. Also, Montana and Wyoming State laws would continue to apply to personal watercraft operators.

8. Alternative B—By using a special regulation, the park would manage PWC use by imposing management prescriptions in addition to those restrictions in effect before November 7, 2002. In addition to those areas closed to PWC use listed in alternative A, alternative B would include a closure of the Bighorn Lake and shoreline south of the area known as the South Narrows (legal description R94W, T57N at the SE corner of Section 6, the SW corner of Section 5, the NE corner of Section 7, and the NW corner of Section 8). Bighorn Canyon National Recreation Area would also install buoys to delineate this boundary and personal watercraft users would be required to stay north of this boundary. Under alternative B, Bighorn Canyon would also establish a PWC user education program implemented through vessel inspections, law enforcement contacts, and signing.

No-Action Alternative—Under the no-action alternative, the National Park Service would take no action to reinstate the use of personal watercraft at Bighorn Canyon National Recreation Area and no special rule would be promulgated to continue personal watercraft use. Under this alternative, NPS would continue the ban on personal watercraft use at Bighorn Canyon National Recreation Area begun in November 2002.

Alternative B is the park's preferred alternative because it would best fulfill the park responsibilities as trustee of the sensitive habitat; ensure safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attain a wider range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences.

As previously noted, NPS will consider the comments received on this proposal, as well as the comments received on the Environmental Assessment. In the final rule, the NPS will implement one of these alternatives as proposed, or choose a different alternative or combination of alternatives. Therefore, the public should review and consider the other alternatives contained in the Environmental Assessment when making comments on this proposed rule.

The following summarizes the predominant resource protection and public use issues associated with reinstating PWC use at Bighorn Canyon National Recreation Area. Each of these issues is analyzed in the Bighorn Canyon National Recreation Area, Personal Watercraft Use Environmental Assessment.

Water Quality

Most research on the effects of personal watercraft on water quality focuses on the impacts of two-stroke engines, and it is assumed that any impacts caused by these engines also apply to the personal watercraft powered by them. There is general agreement that two-stroke engines discharge a gas-oil mixture into the water. Fuel used in PWC engines contains many hydrocarbons, including benzene, toluene, ethylbenzene, and xylene (collectively referred to as BTEX) and polyaromatic hydrocarbons (PAH). PAH also are released from boat engines, including those in personal watercraft. These compounds are not found appreciably in the unburned fuel mixture, but rather are products of combustion. Discharges of these compounds—BTEX and PAH—have potential adverse effects on water quality.

A typical conventional (i.e., carbureted) two-stroke PWC engine discharges as much as 30% of the unburned fuel mixture directly into the water. At common fuel consumption rates, an average two-hour ride on a personal watercraft may discharge 3 gallons of fuel into the water. According to the California Air Resources Board, an average personal watercraft can discharge between 1.2 and 3.3 gallons of fuel during one hour at full throttle. However, hydrocarbon (HC) discharges to water are expected to decrease substantially over the next 10 years due to mandated improvements in engine technology from the Environmental Protection Agency (EPA).

Under this proposed rule, PWC use would be reinstated within Bighorn Canyon with some new restrictions. In addition to the areas that were closed to PWC use before the ban, the proposed rule would also close Bighorn Lake and its shoreline south of the area known as the South Narrows. The adverse impacts on water quality from this proposed rule would be the same as was the case before the ban. Closure of the South Narrows area to PWC use would not measurably change water quality impacts because in an average year the water levels in this area are generally below the elevation of launch facilities thus precluding the use of PWC in that area. PWC use under the proposed rule would have negligible adverse effects on water quality based on ecotoxicological threshold volumes. All pollutant loads in 2002 and 2012 from personal watercraft and other motorboats would be negligible and well below ecotoxicological benchmarks and criteria.

Adverse water quality impacts from PWC from benzo(a)pyrene, benzene, and MTBE based on human health (ingestion of water and fish) benchmarks would be negligible in both 2002 and 2012, based on water quality criteria set by the EPA, as well as water quality criteria for Wyoming and Montana. Cumulative adverse impacts from personal watercraft and other watercraft would be negligible for benzo(a)pyrene, benzene and MTBE. Therefore, the implementation of the proposed rule would not result in an impairment of the water quality resource.

Air Quality

PWC emit various compounds that pollute the air. In the two-stroke engines commonly used in PWC, the lubricating oil is used once and is expelled as part of the exhaust; and the combustion process results in emissions of air pollutants such as volatile organic compounds (VOC), nitrogen oxides (NOX), particulate matter (PM), and carbon monoxide (CO). PWC also emit fuel components such as benzene that are known to cause adverse health effects. Even though PWC engine exhaust is usually routed below the waterline, a portion of the exhaust gases go into the air. These air pollutants may adversely impact park visitor and employee health, as well as sensitive park resources.

For example, in the presence of sunlight VOC and NOX emissions combine to form ozone. Ozone causes respiratory problems in humans, including cough, airway irritation, and chest pain during inhalations. Ozone is also toxic to sensitive species of vegetation. It causes visible foliar injury, decreases plant growth, and increases plant susceptibility to insects and disease. Carbon monoxide can affect humans as well. It interferes with the Start Printed Page 25046oxygen carrying capacity of blood, resulting in lack of oxygen to tissues. NOX and PM emissions associated with PWC use can also degrade visibility. NOX can also contribute to acid deposition effects on plants, water, and soil. However, because emission estimates show that NOX from personal watercraft are minimal (less than 5 tons per year), acid deposition effects attributable to personal watercraft use are expected to be minimal.

Under the proposed rule the annual number of personal watercraft using Bighorn Lake would be essentially the same as before the ban (approximately 449 PWC per year). Additional management strategies in the proposed rule would not affect the number of PWC using Bighorn Lake in 2002 through 2012. Therefore, the emission levels and impacts of continued PWC use to air quality related values would be negligible adverse. In addition, cumulative adverse impacts on air quality related values at Bighorn Canyon National Recreation Area in both 2002 and 2012 would also be negligible.

This conclusion is based on calculated levels of pollutant emissions and the low SUM06 values (ozone levels). There are no observed visibility impacts or ozone-related plant injury in the recreation area. Therefore, implementation of the proposed rule would not result in an impairment of air quality related values.

Soundscapes

Historically, PWC use patterns in Bighorn Canyon are characterized by several people per PWC who take turns riding. Personal watercraft will return to the area where a group is picnicking/camping to rest or switch riders. From park staff observations, personal watercraft generally run at higher speeds (and higher noise levels) leaving the launch or picnic/camping areas than when personal watercraft are in open water. While in the Montana jurisdictional area (which is the majority of the proposed use area), PWC users must travel at flat wake speed when operating on a lake within 100 feet of a drifting, trolling, or anchored watercraft, persons in the water, or on a river within 50 feet of a dock, swimming raft, non-motorized boat, or anchored vessel. However, there are picnic and other shoreline use areas where PWC can operate closer to shore, if no swimmers are present. Users at the picnic areas or swimming areas at those locations are exposed to PWC noise as they come in and out of the shore area if allowed, and from the noise of several PWC that may be operating at high speeds in the vicinity. Currently, no Montana or Wyoming laws restrict PWC speed other than when in a flat wake area. The noise impact from a PWC coming into the shore area is dependent on the distance from shore that the operator slows down and at what speed they approach the shoreline. One PWC operating at 50 feet from shore at 40 mph would generate noise levels of approximately 78 dBA to a shoreline observer; at 20 mph, the noise level would be approximately 73 dBA. At a distance of 100 feet, the noise level would be approximately 6 dBA less than at a distance of 50 feet. The noise level from two identical watercraft would be 3 dBA higher than from a single vessel. With new designs of personal watercraft, engines may be quieter in the future.

The proposed rule would implement restrictions in addition to those in place before the closure. Specifically, PWC would not be allowed south of the area known as the South Narrows. The geographic restriction of the proposed rule would result in the elimination of PWC noise experienced by park visitors in the areas south of the South Narrows, including fishermen, shoreline, and near shoreline users of the swimming, picnic, and camping areas. Because PWC use is already limited in this area due to low water levels, beneficial impacts from a reduction of PWC noise would be negligible.

Overall, the types and levels of adverse impacts from PWC to the soundscape north of the South Narrows would be generally the same as before the ban, which would include short-term, minor to moderate adverse impacts at certain locations along the lake on days of higher PWC use. Minor adverse impacts would occur at times and places where use is infrequent and distanced from other park users, for example, as PWC users operated farther from shore. Moderate adverse impacts would occur at landings on the lake on days of relatively consistent PWC operation with more than one PWC operating at one time. Moderate adverse impacts would occur from highly concentrated PWC use in one area and in areas where PWC noise is magnified off the surrounding cliffs. Impacts would generally be short-term, although could periodically be longer-term at shoreline areas on the very high use days, where motorized noise may predominate off and on for most of the day.

Non-PWC noise sources in Bighorn Canyon include natural sounds such as waves or wind, other boats, and other visitor activities. Motorboats account for approximately 96% of all watercraft use on Bighorn Lake. Although some motorboats can generate maximum sound levels similar to PWC, the motorboats are generally not perceived to be as annoying due to their more typical steady rate of speed and direction. Further, at Bighorn Canyon, most are driven at slow speeds for fishing/trolling or sightseeing and create relatively low noise levels. The geographic restriction of this proposed rule would only slightly reduce cumulative noise impacts south of the South Narrows area compared to before the ban because PWC use is already limited in this area due to low water levels.

The proposed rule would result in a negligible to moderate adverse impact on the national recreation area soundscape. PWC impacts would be negligible south of the South Narrows due to geographic restriction of PWC in this area. Minor and moderate PWC noise impacts would occur in the areas of the national recreation area north of the South Narrows. Impacts would generally be short-term, although could periodically be longer-term at shoreline areas on the very high use days, where motorized noise may predominate off and on for most of the day. Cumulative noise impacts from personal watercraft, motorboats, and other visitors would be minor to moderate because these sounds would be heard occasionally throughout the day, and may predominate on busy days during the high use season. Therefore, implementation of the proposed rule would not result in an impairment of soundscape values.

Wildlife and Wildlife Habitat

Some research suggests that PWC use affects wildlife by causing interruption of normal activities, alarm or flight, avoidance or degradation of habitat, and effects on reproductive success. This is thought to be a result of the combination of PWC speed, noise, and ability to access sensitive areas, especially in shallow-water depths. Waterfowl and nesting birds are the most vulnerable to personal watercraft. Fleeing a disturbance created by personal watercraft may force birds to abandon eggs during crucial embryo development stages, prevent nest defense from predators, and contribute to stress and associated behavior changes. Impacts on sensitive species are documented under “Threatened, Endangered, or Special Concern Species.”

Under the proposed rule, PWC use would occur as before the ban, with additional restrictions. Restrictions on PWC use would include a closure of Bighorn Lake and shoreline south of the Start Printed Page 25047area known as the South Narrows. Buoys would be installed to delineate the boundary and PWC users would be required to stay north of this boundary. A user education program would also be implemented through vessel inspections, law enforcement contacts, and signing. Interactions between wildlife and human visitors would be limited because of the low abundance of wildlife within the PWC use areas and the lack of shoreline access.

The proposed rule would result in some beneficial impacts on wildlife as increased user awareness and a decreased area of PWC activity would reduce the likelihood of user and wildlife conflicts. The Yellowtail Wildlife Habitat area, typically an area of infrequent PWC use due to low water levels but with potential for use when water levels are sufficient, would be closed. Adverse impacts on fish and wildlife from PWC use on Bighorn Lake would remain negligible to minor, but would be less than those predicted without the additional restrictions. All wildlife impacts would be temporary and short term.

The cumulative effects of the proposed rule would be the same as before the ban. Adverse impacts on wildlife and wildlife habitat from visitor activities including PWC and boating use would be short-term and minor to moderate.

Therefore, when compared to before the ban, the reinstatement of PWC use with additional restrictions and education efforts would have beneficial impacts on wildlife due to the decreased noise and disturbance from PWC. Although reduced, impacts on wildlife and wildlife habitat from PWC use would remain adverse negligible to minor in 2002 and 2012, similar to before the ban. All wildlife impacts from personal watercraft would be temporary and short term. Cumulative adverse impacts from visitor activities would be minor to moderate which is the same as before the ban. Lake level fluctuations would also contribute to cumulative adverse impacts through minor to moderate levels of short to long-term habitat disturbance. Therefore, the implementation of the proposed rule would not result in impairment to wildlife or wildlife habitat.

Threatened, Endangered, or Special Concern Species

The same issues described for PWC use and general wildlife also pertain to special concern species. Potential impacts from personal watercraft include inducing flight and alarm responses, disrupting normal behaviors and causing stress, degrading habitat quality, and potentially affecting reproductive success. Special status species at the recreation area include Federal or State listed threatened, endangered, or candidate species. Additionally, some species at Bighorn Lake are designated by Wyoming and/or Montana as special concern species.

The Endangered Species Act (16 U.S.C 1531 et seq.) mandates that all Federal agencies consider the potential effects of their actions on species listed as threatened or endangered. If the National Park Service determines that an action may adversely affect a Federally listed species, consultation with the U.S. Fish and Wildlife Service is required to ensure that the action will not jeopardize the species' continued existence or result in the destruction or adverse modification of critical habitat.

Under this proposed rule, PWC use would occur as it did prior to the closure, with additional restrictions. Restrictions on PWC use would include a closure of Bighorn Lake and shoreline south of the area known as the South Narrows. Buoys would be installed to delineate the boundary and PWC users would be required to stay north of this boundary. A user education program will also be implemented through vessel inspections, law enforcement contacts, and signing.

The closure of the southernmost portion of Bighorn Lake would eliminate noise and disturbance from the infrequent use that occurs in this area when water levels are sufficient for PWC use. Special status species that are known to occur in this area such as the bald eagle and persistent sepal yellowcress would benefit from the closure and no effect on these species would be expected from PWC under the proposed rule. The establishment of a user education program would assist in lowering PWC accident frequency, as well as in increasing PWC user awareness of potential conflicts with wildlife. This would lead to a reduction in the potential for PWC-related effects on special status species relative to before the ban.

Under the proposed rule, cumulative impacts on special status species would be similar to before the ban and may affect, but would not likely adversely affect special status species or their habitat. Cumulative impacts would result from lake level fluctuations as well as visitor activities that are concentrated mostly in developed areas rather than in habitat for special status species.

Under the proposed rule, PWC use at Bighorn Lake may affect, but would not likely adversely affect, special status species including Rocky Mountain bighorn sheep, American peregrine falcon, Townsend's big-eared bat, or northern leopard frog. However, the potential for impacts on these species would be reduced relative to before the ban due to the decreased area of allowed PWC use and increased PWC user education efforts. Potential effects on the bald eagle and persistent sepal yellowcress would be eliminated by the closure of the area south of the South Narrows to PWC use and no effects from PWC would occur to these species under this proposed rule. There would be no PWC-caused effects on all other Federal or State listed species including the mountain plover, plains spadefoot toad, Hapeman's sullivantia, Lesica's bladderpod, sweetwater milkvetch, or rabbit buckwheat as was the case before the ban. All impacts on special status species would be temporary and short term. Cumulative impacts may affect but would not be likely to adversely affect special status species and would result from lake level fluctuations as well as visitor activities that are concentrated mostly in developed areas rather than in habitat for special status species. Therefore, the implementation of this proposed rule would not result in an impairment of threatened or endangered species.

Shoreline Vegetation

PWC are able to access areas that other types of watercraft may not, which may cause direct disturbance to vegetation. Indirect impact on shoreline vegetation may occur through trampling if operators disembark and engage in activities on shore. In addition, wakes created by personal watercraft may affect shorelines through erosion by wave action. The proposed rule aims to limit these disturbances to the shoreline areas.

Under the proposed rule, PWC use would occur as before the ban with additional restrictions. Restrictions on PWC use would include a closure of Bighorn Lake and shoreline south of the area known as the South Narrows. Buoys would be installed to delineate the boundary and PWC users would be required to stay north of this boundary. A user education program will also be implemented through vessel inspections, law enforcement contacts, and signing.

The closure of the area south of the South Narrows would have potential benefits to the wetland and riparian communities during times when water levels are sufficient for PWC access. In addition, the user education program would increase the awareness of visitors to the importance of these vegetation Start Printed Page 25048communities. Impacts from PWC use to shorelines and sensitive shoreline vegetation would remain negligible, adverse, and short-term.

Cumulative adverse impacts related to other watercraft and visitor activities would be the same as before the ban and would be negligible to minor. Impacts from water level fluctuations to shorelines and shoreline vegetation would continue to be minor to moderate.

Reduced PWC access would eliminate adverse impacts in the southern most portion of the national recreation area during times when there are sufficient water levels to provide access by PWC, resulting in beneficial impacts on sensitive shoreline vegetation. Cumulative adverse impacts from PWC and other watercraft use and visitor activities would remain negligible to minor, while impacts from lake level fluctuations would remain minor to moderate. Therefore, the implementation of this proposed rule would not result in an impairment of shoreline vegetation.

Visitor Experience

The proposed rule will minimize potential conflicts between PWC use and other park visitors. PWC use would be reinstated as before the ban, with some additional restrictions including a closure of Bighorn Lake and shoreline south of the area known as the South Narrows. Buoys would be installed to delineate the boundary, and PWC would be required to stay north of this boundary.

Impacts on PWC Users. The use restriction south of the South Narrows would have a negligible adverse impact on the experience of PWC users. This area is not popular with PWC users and the rest of the lake would still be open to PWC use; however, the restriction does eliminate the possibility of PWC use in this area. Overall, this proposed rule would have a long-term negligible adverse impact on PWC users at Bighorn Canyon.

Impacts on Other Boaters. Other boaters (motorized and non-motorized) would interact with PWC operators and experience impacts similar to before the ban. The PWC use restriction south of the South Narrows would benefit other boaters using this area, as there would be no potential for PWC to adversely impact their experience. Further, since this part of Bighorn Canyon has not historically had high PWC use, closure south of the South Narrows would not force a large number of PWC to other parts of the lake and shoreline, thereby impacting other boaters. Therefore, impacts on all boaters south of the South Narrows will be beneficial, and north of the South Narrows will be negligible adverse.

Impacts on Other Visitors. Campers, swimmers, water skiers, anglers, hikers, and other shoreline visitors to the lake would interact with PWC users and experience impacts similar to those that occurred before the ban on PWC use. Closure of the lake south of the South Narrows would not result in PWC users relocating to other parts of the lake since this was not a high PWC use area. Thus, impacts on other visitors would be similar to before the ban. Under the proposed rule, north of the South Narrows the impact would be negligible to minor adverse on the shoreline visitors and minor to moderate adverse on those seeking natural quiet. South of the South Narrows impacts would be beneficial to all visitors.

The cumulative impacts on visitor use and experience under the proposed rule would be the same as before the ban. Predictable cumulative impacts related to the use of personal watercraft, motorized boats, and other visitor activities would be negligible adverse over the short and long term. Designation of the closed area south of the South Narrows would have a negligible adverse impact on most PWC users since this area has not had high PWC use, and most of Bighorn Lake would still be open for use. Other boaters and all shoreline users would experience negligible adverse impacts north of the South Narrows and beneficial impacts south of the South Narrows. Cumulative effects of PWC use, other watercraft, and other visitors would result in long-term, negligible adverse impacts.

Visitor Conflict and Safety

The proposed rule will minimize or reduce the potential for PWC user accidents and the potential safety conflicts between PWC users and other water recreationists. Under the proposed rule PWC use would be reinstated as before the ban, with additional restrictions including a closure of Bighorn Lake and shoreline south of the area known as the South Narrows. Buoys would be installed to delineate this boundary, with PWC required to stay north of this boundary.

Personal Watercraft/Swimmer Conflicts. The greatest potential for conflict between PWC and swimmers is at the designated swim beaches at Horseshoe Bend and Ok-A-Beh. The area south of the South Narrows is not a high swim-use area, thus impacts on swimmers related to visitor safety and conflicts would be negligible adverse.

Personal Watercraft/Other Boat Conflicts. Impacts on other boaters would be similar to before the ban north of the South Narrows and would be negligible to minor adverse. South of the South Narrows, impacts on other boaters would be beneficial, due to closing this area to PWC use.

Personal Watercraft/Other Visitor Conflicts. Bighorn Lake and its shoreline are used by a variety of visitors, including, campers, anglers, and hikers; however, due to the steep topography of the shoreline, most activity is concentrated near developed areas. Shoreline areas that are popular with both PWC and other shoreline users include Horseshoe Bend and Ok-A-Beh. Since lakewide PWC use is expected to increase by one PWC per high-use day by 2012, conflicts and safety issues between PWC users and other visitors would be expected to increase minimally north of the South Narrows and would be negligible adverse. South of the South Narrows, impacts on safety and conflict issues related to all other visitors would be beneficial.

Cumulative impacts would be similar to before the ban. Predictable cumulative impacts related to the use of personal watercraft, motorized boats, and other visitor activities would be negligible adverse over the short and long term. Reinstated PWC use under the proposed rule would have beneficial impacts on visitor conflict and safety goals south of the South Narrows. North of the South Narrows impacts on visitor conflict and safety goals would be negligible adverse. Cumulative impacts related to visitor conflicts and safety would be negligible to minor adverse for all user groups in the short and long term, particularly near the high use areas.

The Proposed Rule

Under the proposed rule in § 7.92 the following areas would remain closed to PWC operations:

1. Gated area south of Yellowtail Dam's west side to spillway entrance works and Bighorn River from Yellowtail Dam to cable 3,500 feet north.

2. At Afterbay Dam from fenced areas on west side of dam up to the dam.

3. In Afterbay Lake, the area between dam intake works and buoy/cable line 100 feet west.

4. Government docks as posted.

5. At Ok-A-Beh, the gas dock except for customers.

6. From Yellowtail Dam upstream to the log boom.

7. Big Horn Lake and shoreline south of the area known as the South Narrows Start Printed Page 25049near the Yellowtail Wildlife Habitat Area.

Bighorn Canyon National Recreation Area would install buoys to delineate the south boundary. Personal watercraft users would be required to stay north of this boundary. Bighorn Canyon would establish a PWC user education program implemented through vessel inspections, law enforcement contacts, and signing. Additionally the park will develop maps of the park with all closures delineated and post these maps on the park's Web site. All applicable State of Montana and State of Wyoming laws would continue to apply to personal watercraft users. It should be noted that the water area south of the South Narrows is closed to all vessels. There is not enough water in that area of the lake to sustain vessel use at this time. Should the water levels rise in the future, the area would continue to remain closed to all vessels for wildlife habit management purposes.

Summary of Economic Impacts

Alternative A would permit PWC use as previously managed within the park before the November 7, 2002, ban, while Alternative B would permit PWC use with additional management strategies. Alternative B is the preferred alternative, and includes a closure of the reservoir and shoreline south of the area known as the South Narrows, and a PWC user education program implemented through vessel inspections, law enforcement contacts, and signing. Alternative C is the no-action alternative and represents the baseline conditions for this economic analysis. Under that alternative, the November 7, 2002, ban would be continued. All benefits and costs associated with Alternatives A and B are measured relative to that baseline.

The primary beneficiaries of Alternatives A and B would be the park visitors who use PWCs and the businesses that provide services to PWC users such as rental shops, restaurants, gas stations, and hotels. Additional beneficiaries include individuals who use PWCs outside the park due to the November 7, 2002, ban. Over a ten-year horizon from 2003 to 2012, the present value of benefits to PWC users is expected to range between $540,900 and $693,650, depending on the alternative analyzed and the discount rate used. The present value of benefits to businesses over the same timeframe is expected to range between $27,420 and $210,640. These benefit estimates are presented in Table 1. The amortized values per year of these benefits over the ten-year timeframe are presented in Table 2.

Table 1.—Present Value of Benefits for PWC Use in Bighorn Canyon National Recreation Area, 2003-2012

[2001 $] a

PWC usersBusinessesTotal
Alternative A:
Discounted at 3% b$693,650$36,980 to $210,640$730,630 to $904,290.
Discounted at 7% b$569,370$29,230 to $166,440$598,600 to $735,810.
Alternative B:
Discounted at 3% b$658,960$34,700 to $196,470$693,660 to $855,430.
Discounted at 7% b$540,900$27,420 to $155,240$568,320 to $696,140.
a Benefits were rounded to the nearest ten dollars, and may not sum to the indicated totals due to independent rounding.
b Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount rate when analyzing impacts to private consumption.

Table 2.—Amortized Total Benefits per Year for PWC Use in Bighorn Canyon National Recreation Area, 2003-2012

[2001 $]

Amortized total benefits per year a
Alternative A:
Discounted at 3% b$85,652 to $106,010.
Discounted at 7% b$85,227 to $104,763.
Alternative B:
Discounted at 3% b$81,318 to $100,282.
Discounted at 7% b$80,916 to $99,115.
a This is the present value of total benefits reported in Table 1 amortized over the ten-year analysis timeframe at the indicated discount rate.
b Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount rate when analyzing impacts to private consumption.

The primary group that would incur costs under Alternatives A and B would be the park visitors who do not use PWCs and whose park experiences would be negatively affected by PWC use within the park. At Bighorn Canyon National Recreation Area, non-PWC uses include boating, canoeing, fishing, and hiking. Additionally, the public could incur costs associated with impacts to aesthetics, ecosystem protection, human health and safety, congestion, nonuse values, and enforcement. However, these costs could not be quantified because of a lack of available data. Nevertheless, the magnitude of costs associated with PWC use would likely be greatest under Alternative A, and lower for Alternative B due to increasingly stringent restrictions on PWC use.

Because the costs of Alternatives A and B could not be quantified, the net benefits associated with those alternatives (benefits minus costs) also could not be quantified. However, from an economic perspective, the selection of Alternative B as the preferred alternative was considered reasonable even though the quantified benefits are smaller than under Alternative A. That is because the costs associated with non-PWC use, aesthetics, ecosystem protection, human health and safety, congestion, and nonuse values would likely be greater under Alternative A Start Printed Page 25050than under Alternative B. Quantification of those costs could reasonably result in Alternative B having the greatest level of net benefits.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

This document is not a significant rule and has not been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The National Park Service has completed the report entitled “Economic Analysis of Management Alternatives for Personal Watercraft in Bighorn Canyon National Recreation Area (MACTEC Engineering and Consulting, Inc., July 2003).

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies or controls. This rule is an agency specific rule.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues. This rule is one of the special regulations being issued for managing PWC use in National Park Units. The National Park Service published general regulations (36 CFR 3.24) in March 2000, requiring individual park areas to adopt special regulations to authorize PWC use. The implementation of the requirement of the general regulation continues to generate interest and discussion from the public concerning the overall effect of authorizing PWC use and National Park Service policy and park management but the specific effects of this rule are nominal.

Regulatory Flexibility Act

The Department of the Interior certifies that this rulemaking 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 certification is based on a report entitled “Economic Analysis of Management Alternatives for Personal Watercraft in Bighorn Canyon National Recreation Area” (MACTEC Engineering and Consulting, Inc., July 2003).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and does not impose any other requirements on other agencies, governments, or the private sector.

Takings (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas by allowing PWC use in specific areas of the park.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required.

National Environmental Policy Act

As a companion document to this NPRM, NPS has issued the Personal Watercraft Use Environmental Assessment for Bighorn Canyon National Recreation Area. The environmental assessment was available for public review and comment for the period June 9, 2003, through July 11, 2003. To request a copy of the document call 307-548-2251 or write Bighorn Canyon National Recreation Area, Attn: PWC EA, 20 Highway 14A East, Lovell, WY 82431. Requests may be e-mailed to Karen_Schwab@nps.gov. A copy of the environmental assessment may also be found at www.nps.gov/​bica/​EAPWC.pdf.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on Federally recognized Indian tribes and have determined that there are no potential effects.

Clarity of Rule

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to read if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example [§ 7.92 Bighorn Canyon Recreation Area]) (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, Start Printed Page 25051NW., Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov.

Drafting Information: The primary authors of this regulation are: Judy Shafer, Office of Policy and Regulations and Kym Hall, Special Assistant, Washington, DC.

Public Participation

Comments on the proposed rule should be sent to Superintendent, Bighorn Canyon NRA, P.O. Box 7458, Fort Smith, MT 59035 or you may hand deliver your comments to the Headquarters at 5 Avenue B, Fort Smith, Montana. Comments may also be sent by e-mail to bica@den.nps.gov. If you comment by e-mail, please include “PWC rule” in the subject line and your name and return address in the body of your Internet message.

Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials or organizations or businesses, available for public inspection in their entirety.

Start List of Subjects

List of Subjects in 36 CFR Part 7

End List of Subjects

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows:

Start Part

PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

1. The authority for Part 7 continues to read as follows:

Start Authority

Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under D.C. Code 8-137(1981) and D.C. Code 40-721 (1981).

End Authority

2. Amend § 7.92 by adding paragraph (d) to read as follows:

Bighorn Canyon National Recreation Area.
* * * * *

(d) Personal Watercraft (PWC). (1) PWC use is allowed in Bighorn Canyon National Recreation Area, except in the following areas:

(i) In the gated area south of Yellowtail Dam's west side to spillway entrance works and Bighorn River from Yellowtail Dam to cable 3,500 feet north.

(ii) At Afterbay Dam from fenced areas on west side of dam up to the dam.

(iii) In Afterbay Lake, the area between dam intake works and buoy/cable line 100 feet west.

(iv) At Government docks as posted.

(v) At the Ok-A-Beh gas dock, except for customers.

(vi) From Yellowtail Dam upstream to the log boom.

(vii) In Bighorn Lake and shoreline south of the area known as the South Narrows (legal description R94W, T57N at the SE corner of Section 6, the SW corner of Section 5, the NE corner of Section 7, and the NW corner of Section 8). Personal watercraft users are required to stay north of the boundary delineated by park installed buoys.

(2) The Superintendent may temporarily limit, restrict, or terminate access to the areas designated for PWC use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives.

Start Signature

Dated: April 19, 2004.

Paul Hoffman,

Deputy Assistant Secretary for Fish and Wildlife and Parks.

End Signature End Part End Supplemental Information

[FR Doc. 04-10140 Filed 5-4-04; 8:45 am]

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