National Park Service, Interior.
This rule designates areas where personal watercraft (PWC) may be used in Bighorn Canyon National Recreation Area, Montana and Wyoming. This rule implements the provisions of the National Park Service (NPS) general regulations authorizing park areas to allow the use of PWC by promulgating a special regulation. The NPS Management Policies 2001 require 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.
Effective June 1, 2005.
Mail inquiries to Superintendent, Bighorn Canyon NRA, P.O. Box 7458, Fort Smith, MT 59035 or e-mail to firstname.lastname@example.org.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Jerry Case, Regulations Program Manager, National Park Service, 1849 C Street, NW., Room 7241, Washington, DC 20240. Phone: (202) 208-4206. E-mail: Jerry_Case@nps.gov.End Further Info End Preamble Start Supplemental Information
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 allowed.
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 Canyon NRA 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 straddle 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. 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 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.
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.
4. 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. Start Printed Page 31346Constitution. 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 ban) 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.
Notice of Proposed Rulemaking and Environmental Assessment
On May 5, 2004, the National Park Service published a Notice of Proposed Rulemaking (NPRM) for the operation of PWC at Bighorn Canyon National Recreation Area (NRA) (69 FR 25043). The proposed rule for PWC use was based on alternative B in the Environmental Assessment (EA) prepared by NPS for Bighorn Canyon NRA. The EA was available for public review and comment from June 9, 2003, through July 11, 2003, and the NPRM was available for public comment from May 5, 2004, through July 6, 2004.
The purpose of the EA 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 compared each alternative to PWC use before November 7, 2002, when the service-wide closure took effect.
The EA evaluated three alternatives addressing the use of personal watercraft at Bighorn Canyon National Recreation Area. Alternative A reinstates PWC use under those restrictions that applied to PWC use before November 7, 2002, as defined in the park's Superintendent's Compendium. Alternative B manages 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 in alternative A, alternative B includes a closure of the Bighorn Lake and shoreline south of the area known as the South Narrows. 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. In addition to alternatives A and B, the National Park Service considered a no-action alternative that takes no action to reinstate the use of personal watercraft at Bighorn Canyon National Recreation Area. Under this alternative, NPS would continue the ban on personal watercraft use at Bighorn Canyon National Recreation Area begun in November 2002.
Based on the analysis, NPS determined that alternative B is the park's preferred alternative because it best fulfills the park responsibilities as trustee of the sensitive habitat; ensures safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attains a wider range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences. This final rule contains regulations to implement alternative B at Bighorn Canyon National Recreation Area.
Summary of Comments
A proposed rule was published for public comment on May 5, 2004, with the comment period lasting until July 6, 2004. The National Park Service received 2,550 timely written responses regarding the proposed regulation. Of the responses, 2,486 were form letters in 4 different formats, and 64 were separate letters. Of the 64 separate letters, 56 were from individuals, 5 from organizations, and 3 from government agencies. Within the following discussion, the term “commenter” refers to an individual, organization, or public Start Printed Page 31347agency that responded. The term “comments” refers to statements made by a commenter.
1. Bluewater Network stated that the Environmental Assessment (EA) failed to use the best data available and picked Alternative B without adequate scientific justification.
NPS Response: Where data was lacking, best professional judgment prevailed using assumptions and extrapolations from scientific literature, other park units where personal watercraft are used, and personal observations of park staff. The NPS believes that the EA is in full compliance with National Environmental Policy Act (NEPA) and that the Findings of No Significant Impacts (FONSI) shows Alternative B (continued PWC use with restrictions) as the Preferred Alternative and that decision has been adequately analyzed and explained.
2. Several commenters stated that allowing PWC use with additional restrictions violates the park's enabling legislation and NPS mandate to protect resources from harm.
NPS Response: NPS analysis of PWC use has found that the use is appropriate and consistent with the Bighorn Canyon National Recreation Area's enabling legislation. The authorizing legislation for Bighorn Canyon was considered when developing alternatives for the EA. The objective of the EA, as described in the “Purpose and Need” chapter, was derived from the enabling legislation for Bighorn Canyon. The recreation area's enabling legislation also states that the “Secretary shall administer Bighorn Canyon National Recreation Area for general purposes of public outdoor recreation.” The recreation area was established as a unit of the national park system. The goal of the national recreation area is to provide each visitor with an educational, enjoyable, safe and memorable experience.
As a result, the alternatives presented in the EA protect resources and values while providing recreational opportunities at Bighorn Canyon National Recreation Area. As required by NPS policies, the impacts associated with personal watercraft and other recreational uses are evaluated under each alternative to determine the potential for impairment to park resources. Implementation of Alternative B in the final rule will not result in impairment of park resources and values for which the Bighorn Canyon National Recreation Area was established.
3. One commenter stated the analysis did not adequately consult with and seek the expertise of various agencies, which appears to violate the NPS' PWC regulations.
NPS Response: The final PWC regulation published by the NPS in March 2000 indicates that we intend to seek the expertise of the U.S. Environmental Protection Agency (EPA), OSHA and other relevant agencies and literature when deciding whether to allow continued PWC use in units of the National Park System. The EA references EPA and OSHA regulations and studies throughout.
We sent out 68 letters to other Federal, State, local agencies including U.S. Fish and Wildlife, Wyoming Game and Fish Department, Montana Fish Wildlife and Parks, Bureau of Reclamation, Wyoming Department of Environmental Quality, Montana Department of Environmental Quality (the State agencies charged with application of EPA regulations in Wyoming and Montana), Bighorn National Forest, Gallatin National Forest, Bureau of Land Management, U.S. Environmental Protection Agency, U.S. Department of the Army Corps of Engineers, Wyoming State Historic Preservation Office, Montana State Historic Preservation Office, Crow Indian tribe, The Wilderness Society, American Watercraft Association, National Parks Conservation Association-Northern Rockies Regional Office, Zoo Montana Science and Conservation Center, Big Horn Mountain Country Coalition, State and Federal representatives and senators, and multiple Chambers of Commerce. We have met the requirements for consultation as well as the intent of the March 2000 PWC regulations.
4. Several commenters stated that the decision violates the Organic Act and will result in the impairment of resources.
NPS Response: The “Summary of Laws and Policies” section in the “Environmental Consequences” chapter of the PWC Use EA summarizes the three overarching laws that guide the National Park Service in making decisions concerning protection of park resources. These laws, as well as others, are also reflected in the NPS Management Policies. An explanation of how the National Park Service applied these laws and policies to analyze the effects of personal watercraft on Bighorn Canyon National Recreation Area resources and values can be found under “Impairment Analysis” in the “Methodology” section of that chapter.
An impairment to a particular park resource or park value must rise to the magnitude of a major impact, as defined by its context, duration, and intensity and must also affect the ability of the National Park Service to meet its mandates as established by Congress in the park's governing legislation. “Impairment” is clearly defined in the EA (page 83) and is the most severe of the five potential impact categories. The other impact categories starting with the least severe are: negligible, minor, moderate, and major. For each resource topic, the EA establishes thresholds or indicators of magnitude of impact. An impact approaching a “major” level of intensity is one indication that impairment could result. For each impact topic, when the intensity approached “major,” the park would consider mitigation measures to reduce the potential for “major” impacts, thus reducing the potential for impairment.
The National Park Service has determined that under the final rule implementing the preferred alternative, Alternative B, there will be no negative impacts on park resources or values, nor impairment of any park resources or values for which the Bighorn Canyon National Recreation Area was established.
5. Several commenters stated that the proposed restrictions under Alternative B discriminate against PWC because Alternative B regulates PWC use on Bighorn Lake more restrictively than other motorized vessels without any reasonable justification.
NPS Response: The EA was written in response to a lawsuit by Bluewater Network and the subsequent settlement agreement regarding the appropriateness of PWC use within the National Park System. The objective of the Environmental Assessment, as described in the “Purpose and Need” Chapter, was to evaluate a range of alternatives and strategies for the management of PWC use in order to ensure the protection of park resources and values, while offering recreational opportunities as provided in the enabling legislation, purpose, mission, and goals. A special analysis on the management of personal watercraft was provided under each alternative to meet the terms of the settlement agreement between the Bluewater Network and the NPS. The plan was designed to determine if PWC use, not motorized boat use in general, was consistent with the park's enabling legislation and management goals and objectives.
6. The U.S. EPA suggested that PWC in the NRA be limited to 4-stroke engines, which will be the best way to meet NPS management policies for protection of air, natural soundscapes, and for the use of motorized equipment. Start Printed Page 31348
NPS Response: Impacts on water and air from PWC use are discussed in the EA on pages 76 to 100, and are negligible to minor for Alternative B. Impacts on soundscapes, discussed on pages 100 to 108, are negligible to moderate for Alternative B. PWC use at Bighorn Canyon is small, and limiting the use to only 4-stroke engines would not appreciably affect air, water or soundscape resources.
Comments Regarding Air Quality
7. One commenter stated that the analysis failed to mention the impact of PWC permeation losses on local air quality.
NPS Response: Permeation losses of volatile organic compounds (VOCs) from personal watercraft were not included in the calculation of air quality impacts primarily because these losses are insignificant relative to emissions from operating watercraft. Using the permeation loss numbers in the comment (estimated to be half the total of 7 grams of losses per 24 hours from the fuel system), the permeation losses per hour are orders of magnitude less than emissions from operating personal watercraft. Therefore, including permeation losses would have no effect on the results of the air quality impact analyses. Also, permeation losses were not included because of numerous related unknown contributing factors such as the number of personal watercraft refueling at the reservoir and the location of refueling (inside or outside of the airshed).
8. One commenter stated that the use of air quality data from Cody, Wyoming, and Billings, Montana, some 50 miles and 90 miles from Bighorn Canyon NRA, in the analysis does not provide the best representation of air quality at the lake.
NPS Response: The Cody and Billings monitoring stations are the closest air quality monitoring sites to the study area. The data from these sites were discussed in the EA; however, these data were not used in the impact analysis. The analysis was based on the results of an EPA air emissions model, which used estimated PWC and boat usage at Bighorn Canyon NRA as inputs.
9. One commenter expressed concern that PWC emissions were declining faster than forecasted by the EPA. As the Sierra Report documents, in 2002, hydrocarbon (HC) and nitrogen oxides (NOX) emissions from the existing fleet of PWC were already 23% lower than they were before the EPA regulations became effective, and will achieve reductions greater than 80% by 2012.
NPS Response: The U.S. EPA's data incorporated into the 1996 Spark Ignition Marine Engine rule were used as the basis for the assessment of air quality, and not the Sierra Research data. It is agreed that these data show a greater rate of emissions reductions than the assumptions in the 1996 Rule and in the EPA's NONROAD Model, which was used to estimate emissions. However, the level of detail included in the Sierra Research report has not been carried into the EA for reasons of consistency and conformance with the model predictions. Most States use the EPA's NONROAD Model for estimating emissions from a broad array of mobile sources. To provide consistency with State programs and with the methods of analysis used for other similar NPS assessments, the NPS has elected not to base its analysis on focused research such as the Sierra Report for assessing PWC impacts.
It is agreed that the Sierra Research report provides data on “worst case” scenarios. However worst case or short-term scenarios were not analyzed for air quality impacts in this or other NPS EAs.
It is agreed that the relative quantity of HC and NOX are a very small proportion of the county based emissions and that this proportion will continue to be reduced over time. The EA takes this into consideration in the analysis.
California Air Resources Board (CARB) certified PWCs may be used, however the degree of certainty of overall use of this engine type nationwide is not well established. For consistency and conformity in approach, the NPS has elected to rely on the assumptions in the 1996 Spark Ignition Engine Rule which are consistent with the widely used NONROAD emissions estimation model. The outcome is that estimated emissions from combusted fuel may be in the conservative range, if compared to actual emissions.
10. Several commenters stated that research indicated that direct-injection 2-stroke engines are dirtier than 4-stroke engines.
NPS Response: It is agreed that two-stroke carbureted and two-stroke DI engines generally emit greater amounts of pollutants than four-stroke engines. Only 4 of the 20 PAHs included in the analyses were detected in water: naphthalene, 2-methylnaphthalene, fluorene, and acenaphthylene. Some pollutants (benzene, toluene, ethylbenzene, and xylene, collectively referred to as BTEX, and formaldehyde) were reported by CARB in the test tanks after 24 hours at approximately 50% the concentrations seen immediately following the test. No results for PAH concentrations after 24 hours were seen in the CARB (2001) results, but a discussion of sampling/analyses of PAHs in the six environmental compartments was presented.
EPA NONROAD model factors differ from those of CARB. As a result of the EPA rule requiring the manufacturing of cleaner PWC engines, the existing carbureted 2-stroke PWC will, over time, be replaced with PWC with less-polluting models. This replacement, with the anticipated resultant improvement in air quality, is parallel to that experienced in urban environments as the automobile fleet becomes cleaner over time.
Regarding the rate of evaporation of gasoline constituents, data provided in CARB (2001), EPA (2001), and Verschuren (1983) do not support the contention in the comment that “most of the unburned gasoline and gasoline additives * * * evaporate from water within the first hour and 15 minutes after they are released.” In CARB (2001), the observation was made that at least 70% of the contaminant concentrations remained in the water 2 hours after running the engines. In most cases, often 40% or more of the concentration was still present the following day. The loss rate observed by CARB (2001) is supported by the EPA (2001) and Verschuren (1983) volatilization rate for benzene. These two sources give the half-life of benzene as approximately 5 hours at a water temperature of 30 degrees C. This estimate of the benzene half-life was considered in evaluation of the threshold volumes calculated for benzene.
Comments Regarding Water Quality
11. One commenter stated that the analysis disregarded or overlooked relevant research regarding impacts to water quality from PWC use as well as the impact to downstream resources and long term site specific water quality data on PWC pollutants.
NPS Response: The EA states that in 2002 impacts to water quality from PWC on a high-use day would be negligible for all chemicals evaluated based on ecological and human health benchmarks and for benzo(a)pyrene based on human health benchmarks. The EA states that in 2012, impacts would also be negligible based on all ecological and human health benchmarks. Impacts to water quality downstream from the lake are not expected to be more severe when the environmental processes affecting concentrations of organics (e.g., evaporation, dilution, deposition) are considered. Start Printed Page 31349
12. One commenter stated that the analysis represents an outdated look at potential emissions from an overstated PWC population of conventional 2-stroke engines, and underestimates the accelerating changeover to 4-stroke and newer 2-stroke engines. The net effect is that the analysis overestimates potential PWC hydrocarbon emissions, including benzene and polyaromatic hydrocarbons (PAHs), to the water in Bighorn Lake. In addition, the water quality analysis uses assumptions that result in overestimation of potential PWC hydrocarbon emission to the water in Bighorn Lake. For example, the analysis states that benzo(a)pyrene concentrations in gasoline can be “up to 2.8 mg/kg.”
NPS Response: Assumptions regarding PWC use (5 per day in 2002 and 6 per day in 2012) were based on actual count data from the month of July 2002. PWC use at other times of the year ranged from 0 to 4 PWC per day. Data for the years 2001 and 2002 were the only data available for Bighorn Canyon (EA, page 75). Because data from other years were not available, trends in PWC use at Bighorn Canyon could not be determined for use in the EA. The July 2002 data can be considered a “worst case” estimate, but it is not “unrealistic” since it is based on actual Bighorn Canyon data. Despite these conservative estimates, impacts to water quality from personal watercraft are judged to be negligible for all alternatives evaluated. Cumulative impacts from personal watercraft and other outboard motorboats are expected to be negligible. If the assumptions used were less than conservative, the conclusions could not be considered protective of the environment, while still being within the range of expected use.
The NPS recognizes that the assumption of all personal watercraft using 2-stroke engines in 2002 is conservative but believes it was appropriate to be protective of park resources. The assumption is consistent with emission data available in CARB (1998) and Bluewater Network (2001). The emission rate of 3 gallons per hour at full throttle is a mid-point between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per hour for an average 2000 model year personal watercraft (Personal Watercraft and Bluewater Network 2001). The assumption also is reasonable in view of the initiation of production line testing in 2000 (EPA 1997) and expected full implementation of testing by 2006 (EPA 1996).
Reductions in emissions used in the water quality impact assessment are in accordance with the overall hydrocarbon emission reduction projections published by the EPA (1996). EPA (1996) estimates a 52% reduction by personal watercraft by 2010 and a 68% reduction by 2015. The 50% reduction in emissions by 2012 (the future date used in the EA) is a conservative interpolation of the emission reduction percentages and associated years (2010 and 2015) reported by the EPA (1996) but with a one-year delay in production line testing (EPA 1997).
The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in the calculations is considered conservative, yet realistic, since it is within the range of concentrations measured in gasoline, according to Gustafson et al. (1997).
Comments Regarding Wildlife and Threatened and Endangered Species
13. One commenter stated that the analysis lacked site-specific data for impacts to wildlife, fish, and threatened and endangered species at Bighorn Lake.
NPS Response: The scope of the EA did not include the conduct of site-specific studies regarding potential effects of PWC use on wildlife species at Bighorn Lake National Recreation Area. Analysis of potential impacts of PWC use on wildlife at the national recreation area was based on best available data, input from park staff, and the results of analysis using that data. The EA still includes a thorough analysis of impacts on wildlife and threatened and endangered species using this approach.
14. One commenter stated that PWC use and human activities associated with their use may not be any more disturbing to wildlife species than any other type of motorized or non-motorized watercraft. The commenter cites research by Dr. James Rodgers of the Florida Fish and Wildlife Conservation Commission, whose studies have shown that PWC are no more likely to disturb wildlife than any other form of human interaction. PWC posed less of a disturbance than other vessel types. Dr. Rodgers' research clearly shows that there is no reason to differentiate PWC from motorized boating based on claims on wildlife disturbance.
NPS Response: We agree that some research indicates that personal watercraft are no more apt to disturb wildlife than are small outboard motorboats; however, disturbance from both PWC and outboard motor boats does occur. Dr. Rogers recommends that buffer zones be established, creating minimum distances between boats (personal watercraft and outboard motorboats) and nesting and foraging waterbirds. Under Alternative B, the area south of the South Narrows will be closed to PWC use, but there will be no other shoreline restrictions related to wildlife and wildlife habitat. “No-wake” speeds must be maintained when within 200 feet of a dock, swimmer, swimming raft, non-motorized boat or anchored vessel in Montana, and within 100 feet in Wyoming. Impacts to wildlife and wildlife habitat under all the alternatives were judged to be negligible to moderate from all visitor activities.
Comments Regarding Soundscapes
15. One commenter stated that continued PWC use in the Bighorn Canyon NRA will not result in sound emissions that exceed the applicable Federal or State noise abatement standards, and technological innovations by the PWC companies will continue to result in substantial sound reductions.
NPS Response: The NPS concurs that on-going and future improvements in engine technology and design would likely further reduce the noise emitted from PWC. However, given the low level of PWC use, a reduction in ambient noise levels in the recreation area is unlikely even with improved technology and would unlikely reduce impacts beyond minor to moderate through out the recreation area.
16. One commenter stated that the NPS places too much hope in new technologies significantly reducing PWC noise since there is little possibility that the existing fleet of more than 1.1 million machines (most of which are powered by conventional two-stroke engines) will be retooled to reduce noise. This commenter was also concerned that the conclusions of relevant PWC noise studies, such as Drowning in Noise, Noise Costs of PWC in America, were disregarded.
NPS Response: The analysis of the preferred alternative states that noise from PWC would continue to have minor to moderate, temporary adverse impacts, and that impact levels would be related to number of PWC and sensitivity of other visitors. This recognizes that noise will occur and will bother some visitors, but site-specific modeling was not needed to make this assessment. The availability of noise reduction technologies is also growing, and we are not aware of any scientific studies that show these technologies do not reduce engine noise levels. Also, the analysis did not rely heavily on any future noise reduction technology. It recognizes that the noise from the operation of PWC will always vary, Start Printed Page 31350depending on the speed, manner of use, and wave action present.
Although PWC use does occur throughout the lake, it is concentrated more in certain areas, and this is noted in the soundscapes impact analysis that follows the introductory statements and assumptions listed on page 105 of the EA. The analysis of impacts states that “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 far 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.” The analysis did not assume even distribution of PWC and predicted moderate impacts from concentrated PWC use in one area.
The noise annoyance costs in the “Drowning in Noise” study are recognized in the EA by the moderate impacts predicted, although no monetary costs are assigned. These costs would vary by type and location of user. Given the intended usage of the higher use marina/beach areas of Bighorn Canyon and visitor expectations and tolerances at these areas, it is unlikely that the PWC noise experienced there would meet the definition of “major” impact, as defined in the EA.
Comments Regarding Cultural Resources
17. One commenter stated that the analysis refers to a potential concern that the ability of PWC operators to access remote areas of the park unit might make certain cultural, archeological and ethnographic sites vulnerable to looting or vandalism. However, there is no indication of any instances where these problems have occurred. Nor is there any reason to believe that PWC users are any more likely to pose these concerns than canoeists, kayakers, hikers, or others who might access these same areas.
NPS Response: The EA was focused on the analysis of impacts from PWC use. PWC can make it easier to reach some remote upstream areas, compared to hiking to these areas, but we agree that the type of impacts to cultural resources from any users of remote areas of the park would be similar if they can reach these areas.
Comments Associated With Safety
18. One commenter stated that the accident data used in the analysis was outdated and incorrect because PWC accidents are reported more often than other boating accidents. Further, there have been few PWC accidents reported in the Bighorn Canyon NRA.
NPS Response: The mediating factors described in the comment are recognized. However, these factors are unlikely to fully explain the large difference in percentages (personal watercraft are only 7.5% of nationally registered vessels, yet they are involved in 36% of reported accidents). In other words, personal watercraft are 5 times more likely to have a reportable accident than are other boats. This difference is even more significant when canoes and kayaks, which are not required to be registered but are included in the total number of accidents, are considered. Despite these national boating accident statistics, impacts of PWC use and visitor conflicts are judged to be negligible relative to swimmers and minor relative to other motorboats at the national recreation area.
Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of incidents in the recreation area are estimated to go unreported.
19. One commenter stated that there was no discussion regarding PWC fire and explosion hazards. According to the U.S. Coast Guard, the PWC industry has recalled more than 280,000 watercraft over the past ten years with production/design problems that could lead to fires and explosions.
NPS Response: According to the National Marine Manufacturers Association, PWC manufacturers have sold roughly 1.2 million watercraft during the last ten years. Out of 1.2 million PWC sold the U.S. Coast Guard had only 90 reports of fires/explosions in the years from 1995-1999. This is less than 1% of PWC boats having reports of problems associated with fires/explosions. As far as the recall campaigns conducted by Kawasaki and Bombardier, the problems that were associated with fuel tanks were fixed. Kawasaki conducted a recall for potentially defective fuel filler necks and fuel tank outlet gaskets on 23,579 PWCs from the years 1989 and 1990. The fuel tank problems were eliminated in Kawasaki's newer models, and the 1989 and 1990 models are most likely not in use anymore since life expectancy of a PWC is only five to seven years, according to PWIA. Bombardier also did a recall for its 1993, 1994, and 1995 models to reassess possible fuel tank design flaws. However, the number of fuel tanks that had to be recalled was a very small percent of the 1993, 1994, and 1995 fleets because fuel tank sales only amounted to 2.16% of the total fleet during this period (Bombardier Inc.). The replacement fuel tanks differed from those installed in the watercraft subject to the recall in that the replacement tanks had revised filler neck radiuses, and the installation procedure now also requires revised torque specifications and the fuel system must successfully complete a pressure leak test. Bombardier found that the major factor contributing to PWC fires/explosions was over-torquing of the gear clamp. Bombardier was legally required by the U.S. Coast Guard to fix 9.72% of the recalled models. Out of 125,349 recalls, the company repaired 48,370 units, which were approximately 38% of the total recall, far exceeding its legal obligation to repair units with potential problems.
Further fuel tank and engine problems that could be associated with PWC fires have been reduced significantly since the National Marine Manufacturers Association (NMMA) set requirements for meeting manufacturing regulations established by the U.S. Coast Guard. Many companies even choose to participate in the more stringent Certification Program administered by the NMMA. The NMMA verifies annually, or whenever a new product is put on the market, boat model lines to determine that they satisfy not only the U.S. Coast Guard Regulations but also the more rigorous standards based on those established by the American Boat and Yacht Council.
Comments Related to Visitor Experience and Satisfaction
20. One commenter stated that several of the restrictions under Alternative B, such as the PWC-only exclusion zone south of the South Narrows and the PWC-user education program discriminate without any justification against PWC users.
NPS Response: The EA was designed to determine if personal watercraft use was consistent with the park's enabling legislation and management goals and objectives, not to determine if these restrictions should also apply to boats. That analysis must be completed as part of a separate EA.
21. One commenter is concerned that PWC operators are not being cited for violating regulations.
NPS Response: Park officials have issued citations under Montana and Wyoming state law to PWC users for acts such as wake jumping, under-age riding, and failing to wear floatation devices. Due to the size and Start Printed Page 31351configuration of the lake, and the fact that PWC comprise only approximately 4% of the boat use on Bighorn Lake, it is unlikely that a visitor would witness a PWC operator being cited for a violation.
Comments Regarding Socioeconomics
22. One commenter is concerned that a PWC ban would have severe economic effects on the local economies surrounding the NRA, which receive their livelihoods from PWC users as well as other recreationalists.
NPS Response: The economic analysis evaluated the socioeconomic impact of each alternative. NPS anticipates that the final rule implementing Alternative B will actually increase benefits to local businesses compared to the baseline of continuing the PWC ban. Increased benefits to local businesses from this alternative are estimated between $33,110 and $156,300 per year. These increased benefits will result from the permitted PWC use under this alternative.
Comments Regarding Consultation and Coordination
23. The U.S. EPA commented that the rule is unclear about the Crow Indian Tribe's comments or reservations about the action, and if there was any consultation with the Tribe.
NPS Response: The Crow Tribe received a copy of the EA in August 2003. Although no written comments were received from the tribe, Bighorn Canyon staff had conversations with the tribe about the project, and no issues were raised.
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.
|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.|
|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.|
|Amortized total benefits per year a|
|Discounted at 3% b||$85,652 to $106,010.|
|Discounted at 7% b||$85,227 to $104,763.|
|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 Start Printed Page 31352Alternative 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 than under Alternative B. Quantification of those costs could reasonably result in Alternative B having the greatest level of net benefits.
Changes to the Final Rule
Based on the preceding comments and responses, the NPS has made no changes to the proposed rule language with regard to PWC operations.
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 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 the NPRM, NPS issued the Personal Watercraft Use Environmental Assessment for Bighorn Canyon National Recreation Area. The EA was available for public review and comment for the period June 9, 2003, through July 11, 2003. A Finding of No Significant Impact (FONSI) was signed on April 26, 2005. To request a copy of these documents call (406) 666-2412 or write Bighorn Canyon National Recreation Area, Attn: PWC EA, P.O. Box 7458, Fort Smith, Montana 59035. Requests may be e-mailed to James_Charles@nps.gov. A copy of the EA and FONSI may also be found at www.nps.gov/bica/pphtml/documents.html.
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.
Administrative Procedure Act
This final rule is effective upon publication in the Federal Register. In accordance with the Administrative Procedure Act, specifically, 5 U.S.C. Start Printed Page 31353553(d)(1), this rule, 36 CFR 7.92(d), is exempt from the requirement of publication of a substantive rule not less than 30 days before its effective date.
As discussed in this preamble, the final rule is a part 7 special regulation for Bighorn Canyon National Recreation Area that relieves the restrictions imposed by the general regulation, 36 CFR 3.24. The general regulation, 36 CFR 3.24, prohibits the use of PWC in units of the national park system unless an individual park area has designated the use of PWC by adopting a part 7 special regulation. The proposed rule was published in the Federal Register (69 FR 25043) on May 5, 2004, with a 60-day period for notice and comment consistent with the requirements of 5 U.S.C. 553(b). The Administrative Procedure Act, pursuant to the exception in paragraph (d)(1), waives the section 553(d) 30-day waiting period when the published rule “grants or recognizes an exemption or relieves a restriction.” In this rule the NPS is authorizing the use of PWCs, which is otherwise prohibited by 36 CFR 3.24. As a result, the 30-day waiting period before the effective date does not apply to the Bighorn Canyon National Recreation Area final rule.Start List of Subjects
List of Subjects in 36 CFR Part 7End List of Subjects Start Amendment Part
For the reasons stated in the preamble, the National Park Service amendsEnd Amendment Part Start Part
PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEMEnd Part Start Amendment Part
1. The authority for part 7 continues to read as follows:End Amendment Part Start Amendment Part
2. Amend § 7.92 by adding paragraph (d) to read as follows:End Amendment Part
(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.
Dated: May 12, 2005.
Deputy Assistant Secretary for Fish And Wildlife and Parks.
[FR Doc. 05-10855 Filed 5-31-05; 8:45 am]
BILLING CODE 4312-52-P