[Federal Register Volume 68, Number 187 (Friday, September 26, 2003)]
[Rules and Regulations]
[Pages 55448-55466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24363]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC90


Glen Canyon National Recreation Area, PWC Use

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule designates areas where personal watercraft (PWC) may 
be used in Glen Canyon National Recreation Area, Utah and Arizona. This 
rule implements the provisions of the National Park Service (NPS) 
general regulation authorizing parks to allow the use of PWC by 
promulgating special regulations. The NPS Management Policies 2001 
provides that individual parks should 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, 
overall management objectives, and consistent with the criteria of the 
NPS for managing visitor use.

EFFECTIVE DATE: This rule becomes effective September 26, 2003.

ADDRESSES: Mail inquiries to Kitty L. Roberts, Superintendent, Glen 
Canyon National Recreation Area, P.O. Box 1507, Page, Arizona 86040.

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: [email protected].

SUPPLEMENTARY INFORMATION:

Background

Statutory Authority To Regulate Recreational Use

    The NPS is granted broad statutory authority under various acts of 
Congress to manage and regulate water activities in areas of the 
National Park System. 16 U.S.C. 1, 1a-2(h) and 3. The NPS's Organic Act 
of 1916 (Organic Act) (16 U.S.C. 1 et seq.) authorizes the NPS to 
``regulate the use of Federal areas known as national parks, monuments, 
and reservations * * * by such means and measures as conform to the 
fundamental purpose of the said parks * * * which purpose is to 
conserve the scenery and the natural and historic objects and the 
wildlife therein and to provide for the enjoyment of the same in such 
manner and by such means as will leave them unimpaired for the 
enjoyment of future generations.'' Congress has also emphasized that 
the ``authorization of activities shall be construed and the 
protection, management, and administration of these areas shall be 
conducted in light of the high public value and integrity of the 
national park system and shall not be exercised in derogation of the 
values and purposes for which these various areas have been 
established, except as may have been or shall be directly and 
specifically provided by Congress.'' 16 U.S.C. 1a-1. The 
appropriateness of a visitor use or recreational activity will vary 
from park to park. NPS Management Policies states that ``the laws do 
give the Service the management discretion to allow impacts to park 
resources and values when necessary and appropriate to fulfill the 
purposes of a park, so long as the impact does not constitute 
impairment of the affected resources and values.'' (1.4.3). NPS 
Management Policies provide further that, ``preserving park resources 
and values unimpaired is the core, or primary responsibility of NPS 
managers * * *. In cases of doubt as to impacts of activities on park 
natural resources, the Service will decide in favor of protecting the 
natural resources.'' (4: 1).
    The Organic Act and the other statutory authorities of the NPS vest 
the NPS with substantial discretion in determining how best to manage 
park resources and provide for park visitors. ``Courts have noted that 
the Organic Act is silent as to the specifics of park management and 
that under such circumstances, the NPS has broad discretion in 
determining which avenues best achieve the Organic Act's mandate * * *. 
Further, the NPS is empowered with the authority to determine what uses 
of park resources are proper and what proportion of the park resources 
are available for each use'' Bicycle Trail Council of Marin v. Babbitt, 
82 F.3d 1445, 1454 (9th Cir. 1996), quoting National Wildlife 
Federation v. National Park Service, 669 F. Supp. 384, 390 (D. Wyo. 
1987). In reviewing a challenge to NPS regulations at Everglades 
National Park, the court stated, ``The task of weighing the competing 
uses of Federal property have been delegated by Congress to the 
Secretary of the Interior * * *. Consequently, the Secretary has broad 
discretion in determining how best to protect public land resources.'' 
Organized Fisherman of Florida v. Hodel, 775 F.2d 1544, 1550 (11th Cir. 
1985), cert. denied, 476 U.S. 1169 (1986).

Regulation of PWC Use

    Over the years, NPS areas have been impacted with new, and what 
often prove to be controversial, recreational activities. These 
activities tend to gain a foothold in NPS areas in their infancy, 
before a full evaluation of the possible impacts and ramifications that 
expanded use will have on the area can be initiated, completed, and 
considered. PWC use fits this category.
    PWC use emerged and gained popularity in park units before the 
National Park Service could initiate and complete a full evaluation of 
the possible impacts and ramifications. Although PWC use remains a 
relatively

[[Page 55449]]

new recreational activity, it has occurred in 32 of 87 park units that 
allow motorized boating.
    The National Park Service first began to study PWC in Everglades 
National Park. The studies showed that PWC use over emergent 
vegetation, shallow grass flats, and mud flats commonly used by feeding 
shore birds damaged the vegetation, adversely impacted the shore birds, 
and disturbed the life cycles of other wildlife. Consequently, managers 
at Everglades National Park determined that PWC use was inconsistent 
with the resources, values, and purposes for which the park was 
established. In 1994, the National Park Service prohibited PWC at 
Everglades National Park by a special regulation 36 CFR 7.45(e)(8) (59 
FR 58781, Nov. 15, 1994).
    Other public entities have taken steps to limit, and even to ban, 
PWC use in certain waterways as national researchers study more about 
the effects of PWC use. At least 34 states have either implemented 
regulations or considered regulating the use and operation of PWC (63 
FR 49314, Sept. 15, 1998). Several Federal agencies, including the U.S. 
Fish and Wildlife Service and the National Oceanic and Atmospheric 
Administration, have managed PWC differently than other classes of 
motorized watercraft.
    When the National Oceanic and Atmospheric Administration regulated 
the use of PWC in most national marine sanctuaries, it was sued by the 
PWC Industry Association (PWIA). As a result, the Court of Appeals for 
the District of Columbia declared such PWC-specific management to be 
valid. In PWC Industry Association v. Department of Commerce, 48 F.3d 
540 (D.C. Cir. 1995), the court ruled that an agency can discriminate 
and manage one type of vessel (specifically, PWC) differently than 
other vessels if the agency explains its reasons for the 
differentiation.
    In February 1997, the Tahoe Regional Planning Agency, the governing 
body charged with ensuring no derogation of Lake Tahoe's water quality, 
voted unanimously to ban all vessels using two-stroke, internal 
combustion engines, including PWC, because of their adverse effects on 
water quality. Lake Tahoe's ban began in 2000.
    Historically, the National Park Service grouped PWC with all other 
vessels. Thus, people could use PWC within a park service unit when the 
unit allowed the use of other vessels. However, by 1998 the National 
Park Service had closed seven units to PWC and other motorized vessels 
use through the implementation of horsepower restrictions and park-
specific regulations such as those promulgated by Everglades National 
Park. At that time, the National Park Service was reevaluating its 
management of PWC use, based on its responsibilities under the Organic 
Act and increased concerns for public safety.
    In May 1998, the Bluewater Network, a private, independent, non-
profit organization, filed a petition urging the National Park Service 
to initiate a rulemaking process to prohibit PWC use throughout the 
national park system. In response to the petition the National Park 
Service proposed a specific PWC regulation premised on the notion that 
PWC differ from conventional watercraft in terms of design, use, safety 
record, controversy, visitor impacts, resource impacts, horsepower-to-
vessel ratio, and thrust capacity (63 FR 49312, Sept. 15, 1998).
    The National Park Service envisioned the servicewide regulation as 
an opportunity to evaluate impacts of PWC use before authorizing their 
use. The preamble to the servicewide regulation calls the regulation a 
``conservative approach to managing PWC use'' that considered resource 
concerns, visitor conflicts, visitor enjoyment, and visitor safety. 
During a 60-day public comment period, the National Park Service 
received nearly 20,000 comments on the proposed regulation. As a result 
of public comments and further review, the National Park Service issued 
a final rule (36 CFR 3.24(a), 64 FR 15077, March 21, 2000) that 
prohibited PWC use in park units, unless authorized by a special 
regulation.
    In the 2001 Management Policies, the NPS adopted its new 
servicewide policy for PWC. As stated in section 8.2.3.3, ``PWC use is 
prohibited unless it has been identified as appropriate for a specific 
park.'' PWC use can only be authorized based on ``an evaluation of the 
park's enabling legislation, resources and values, other visitor uses, 
and overall management objectives [that] confirms that PWC use is 
appropriate and consistent'' with other NPS management goals and 
objectives.

PWC Use at Glen Canyon National Recreation Area

    Motorboats and other watercraft such as houseboats, ski boats, 
fishing boats, and powerboats have been used in Glen Canyon National 
Recreation Area since its establishment in 1972. PWC use has emerged at 
the recreation area with the introduction of this type of vessel in the 
1980s. Prior to 2000, PWC use was allowed throughout Glen Canyon 
National Recreation Area except in the waters designated closed in the 
Superintendent's Compendium, which included portions of the Colorado, 
Dirty Devil, Escalante, and San Juan rivers. These closures were for 
the protection of environmental values and the avoidance of conflict 
between users.
    Glen Canyon National Recreation Area is located within the states 
of Arizona and Utah. Both states enforce their laws on Lake Powell 
within their respective state jurisdictions. The National Park Service 
adopts (36 CFR 3.1) and enforces these state regulations together with 
the NPS boating regulations in part 3 of Title 36 of the Code of 
Federal Regulations. The United States Coast Guard Regulations are also 
adopted in 36 CFR part 3.
    On January 17, 2003, the National Park Service published a notice 
of proposed rulemaking for the operation of PWC at Glen Canyon National 
Recreation Area (68 FR 2466). The proposed rule for PWC use was based 
on alternative B (the preferred alternative) in the Glen Canyon 
National Recreation Area Draft Environment Impact Statement (DEIS). The 
DEIS was made available for public review on September 13, 2002 (67 FR 
58071). The DEIS analyzed three alternatives for addressing PWC use at 
Glen Canyon National Recreation Area. Two of the alternatives would 
permit PWC use with certain restrictions through the development of 
special regulations. Alternative A would reestablish the limits on PWC 
use that existed prior to 2002 under the Superintendent's Compendium. 
Alternative B would impose additional restrictions on PWC use beyond 
what was proposed by alternative A. Alternative C would leave intact 
the existing 36 CFR 3.24 prohibition on PWC use within the recreation 
area. The 60-day public comment period for the proposed rule ended 
March 18, 2003.
    A Final Environmental Impact Statement (FEIS) was made available to 
the public on May 16, 2003 (68 FR 26645). Some changes were made in the 
FEIS in response to the over 30,000 public and agency comments received 
on the DEIS. These changes are discussed below under ``Changes to the 
Final Rule.'' The FEIS includes a discussion of comments section that 
addresses all of the issues raised by commenters to the DEIS. A Record 
of Decision on the FEIS was signed by the National Park Service on June 
27, 2003.
    While Glen Canyon National Recreational Area was officially closed 
to PWC use on November 6, 2002, the closure was temporarily lifted for 
the summer season of May 10, 2003, through September 30, 2003 after an 
agreement between the Bluewater

[[Page 55450]]

Network and the Superintendent of Glen Canyon National Recreational 
Area. The lifting of the closure will allow the use of PWC on the 
majority of Lake Powell. The agreement, however, retained the 
restrictions in the 2002 Superintendent's Compendium and added closures 
from the mouth of San Juan River to the NRA boundary and north or 
beyond mile marker 108 of the Colorado River as measured from the Glen 
Canyon Dam to the NRA boundary.

Changes to the Final Rule

    Some changes have been made in the FEIS and to the final rule. The 
alternatives presented in the DEIS were modified in the FEIS in 
response to comments received on the DEIS. The primary modifications to 
alternatives A and B in the FEIS include conducting a 3-year pilot 
study to identify and develop conflict resolution techniques and 
preparing a comprehensive lake management plan to address all uses of 
Lake Powell. Additionally, alternative B and the final rule were 
modified to include compliance with 2006 emission standards (described 
below) and to add an additional geographic restriction.
    1. Alternative B includes strategies to better protect recreation 
area resources, improve visitor safety, and reduce conflicts. These 
strategies include conducting a 3-year pilot study to identify the 
techniques and area restrictions that would be most effective in 
reducing conflicts and preparing a comprehensive lake management plan 
addressing all uses. See the discussion below in the comments summary 
(e.g., comment numbers 20 and 60) and in appendix C of the Draft and 
Final Environmental Impact Statement.
    2. Alternative B, as reflected in this final rule, requires that 
PWC in the recreation area meet the 2006 U.S. Environmental Protection 
Agency emissions standards by the end of 2012 and in subsequent years. 
PWC not meeting the standards would no longer be permitted to operate 
within Glen Canyon National Recreation Area beginning in 2013. See the 
discussion below under number 17 in the comments discussion.
    3. In the DEIS and NPRM a PWC would have been allowed to operate at 
flat wake speed on the Dirty Devil River upstream of the Utah Highway 
95 bridge to a point where measurable downstream current is 
encountered. In the FEIS and final rule, PWC use on the Dirty Devil 
River upstream of the Utah Highway 95 bridge is prohibited. In addition 
the reference to Coyote Gulch in the proposed rule has been changed in 
the final rule to reference Coyote Creek. Coyote Creek is the correct 
geographic name for the area discussed and this non-substantive change 
was made for clarification.

Discussion of Economic Effects of PWC Use

    In the Economic Analysis, NPS estimates that the total impact of 
the proposed alternatives for regulating PWC use in Glen Canyon on 
Page, Arizona, output is $23.8 to $39.9 million for Alternatives A and 
B and $0 for Alternative C (because this alternative maintains baseline 
conditions) in the first year after the rule implementation. The 
increases in output under Alternatives A and B are substantial compared 
to the size of the regional economy, ranging from about 11 to 18 
percent of regional personal income. Area businesses would be likely to 
experience large positive impacts under this final rule.

Summary of Comments

    A proposed rule was published for public comment on January 17, 
2003 (68 FR 2,466-76), with the comment period lasting until March 17, 
2003. The National Park Service received 2,170 timely written responses 
regarding the proposed regulation. Of the responses, 1,973 were form 
letters in 5 separate formats and 197 were individual letters. Of the 
197 individual letters received 180 were from individuals, 5 from 
businesses, 8 from organizations and 4 from public agencies. Within the 
analysis, the term ``commenter'' refers to an individual, business, or 
organization that responded. The term ``comments'' refers to statements 
made by a commenter.

General Comments

    1. Some commenters, including the PWC Industry Association (PWIA), 
advocate that any regulation or restriction on PWC by the National Park 
Service should be uniformly applied to all motorized recreational 
vessels. Allowing other motorized vessels to operate in some of the 
proposed restricted areas would undermine the purported goals of 
reducing user conflicts and allowing for solitude and quiet. Closing 
these river areas to PWC, and not other motorized vessels, would be 
discriminatory.
    NPS Response: With this final rule the National Park Service is 
adopting special regulations to manage PWC use at Glen Canyon. The 
alternatives listed in the Final Environmental Impact Statement were 
based upon the best information available. As noted by the commenter, 
the management actions under modified preferred alternative B for the 
San Juan, Escalante, Colorado, and Dirty Devil Rivers will be 
implemented to reduce visitor conflicts with river rafters, fishermen, 
and backcountry hikers; promote opportunities for quiet and solitude; 
and ensure visitor safety. Following completion of the Final 
Environmental Impact Statement, it remains within National Park Service 
authority to prescribe similar use restrictions on all watercraft, if 
appropriate.
    Glen Canyon expects to proceed with a Lake Management Plan in the 
near future, which will further examine vessel management as a whole on 
the waters of Lake Powell and its tributaries.
    2. A number of commenters, including PWIA, proposed that the flat-
wake zone should apply to all motorized vessels. Restricting only PWC 
to flat-wake speeds presents a safety hazard if other vessels are 
permitted to operate at significantly faster speeds.
    NPS Response: Under a combination of NPS regulations and State laws 
and regulations all vessels are required to operate at flat wake speed 
in certain areas. In the case of the Escalante River, the NPS is 
requiring in this special regulation all PWCs to operate at flat wake 
speed because of the narrow waterways, blind corners and high use of 
the area, which would otherwise be a safety concern. The NPS has 
already adopted this requirement for all vessels in the 
Superintendent's Compendium for the same reasons.
    3. Many commenters questioned why the focus of the analysis was on 
PWC alone when other motorized watercraft have similar or greater 
impacts on park resources.
    NPS Response: The focus was on PWC because of the new management 
approach taken by the NPS. As a result, PWC use would be prohibited 
unless Glen Canyon NRA adopted a special regulation. The EIS and 
rulemaking were not designed to determine if PWC caused more 
environmental damage to park resources than other boats, but rather to 
determine if PWC use was consistent with Glen Canyon National 
Recreation Area's enabling legislation and management goals and 
objectives. As stated in the ``Purpose of and Need for Action'' chapter 
in the Draft and Final Environmental Impact Statements, the overall 
objective for the EIS and rulemaking is to evaluate a range of 
alternatives and strategies to manage PWC use, with the goal of 
ensuring protection of recreation and resource value. The impacts of 
other motorized watercraft could be considered in a future Lake 
Management Plan.
    4. One commenter stated that the analysis should include examples 
of

[[Page 55451]]

best management practices to avoid or reduce pollution to the 
recreation area. They encourage the National Park Service to ``use all 
available practices to meet the intent of guidance issued by the 
Council on Environmental Quality (CEQ) integrating pollution prevention 
opportunities in National Environmental Policy Act (NEPA) planning, 
documents and decisions (Pollution Prevention and the National 
Environmental Policy Act, CEQ, January 1993).'' Pertinent provisions of 
executive orders should be addressed in the Final Environmental Impact 
Statement and the future Lake Management Plan referenced in this 
rulemaking.
    NPS Response: Each impact topic contains a summary of the 
applicable laws and regulations that were applied in the analysis of 
the effects of PWC on Glen Canyon National Recreation Area resources 
and values.
    The NPS and the marina operators have developed a Spill Prevention, 
Control, and Countermeasure Plan (SPCC) that provides recommendations 
and requirements to prevent environmental damage resulting from the 
spills of oil and fuel. These plans are required by the Environmental 
Protection Agency (EPA) as stated in 40 CFR part 112. All marina 
operators and National Park Service must comply with these requirements 
and Best Management Practices contained within the Spill Prevention 
Plan. The CEQ requires NPS units to comply with the recommendations and 
requirements established by the NPS Hazardous Waste Management and 
Pollution Prevention Team and the EPA. An SPCC is required by EPA to 
protect the environment from oil spills. Glen Canyon NRA requires the 
current concessionaire (ARAMARK) to have a SPCC plan for each marina 
fueling operations. The SPCC plans comply with CEQ guidance the 
commenter mentions by following the EPA standards for spill protection 
and prevention. In addition, placards are displayed at marinas and 
educational materials are made available to recreation area visitors to 
inform boat operators about proper fueling of vessels and containers.
    The National Park Service manages the water of Lake Powell in 
accordance with the water quality standards of Arizona and Utah. Water 
quality in Lake Powell is regulated by the Arizona and Utah Departments 
of Environmental Quality under water quality standards and regulations 
that are promulgated in the Arizona Administrative Code (R18-11-107) 
and Utah Administrative Code (R317-2), respectively. Consistent with 
Federal regulations, Arizona and Utah have established numerical and 
narrative standards that protect existing and designated uses of state 
waters and implement the antidegradation requirements. Compliance with 
the numerical standards for water quality is determined at control 
points that are specified in the regulations.
    In the case of the Draft and Final Environmental Impact Statements, 
three alternatives for PWC management were analyzed. The alternatives 
also consider means to mitigate the effects of PWC on park resources 
and values, including limiting use in areas where management objectives 
strive to create a visitor experience without intrusion of these 
vessels or where important park resources must be protected. 
Alternative B (modified preferred alternative) in the Final 
Environmental Impact Statement includes mitigation measures to protect 
other park users from potential conflicts with PWC (refer to the 
modified preferred alternative section in the ``Environmental 
Consequences'' chapter), as well as other measures to protect species 
of special concern and water and air resources. Requiring that PWC used 
in the recreation area after 2012 be compliant with the EPA 2006 
emission standards for gasoline marine engines under alternative B 
(modified preferred alternative) will further mitigate impacts of these 
vessels on recreation area resources. The National Park Service finds 
that the modified preferred alternative will not result in an 
impairment of park resources and values for which the Glen Canyon 
National Recreation Area was established.
    5. Several commenters stated that limiting access to PWC users is 
against the intent which Glen Canyon National Recreation Area was 
created.
    NPS Response: The authorizing legislation for Glen Canyon National 
Recreation Area was considered when developing alternatives to be 
analyzed in the Draft and Final Environmental Impact Statements. The 
``Introduction'' section in the ``Purpose of and Need for Action'' 
chapter in the Draft and Final Environmental Impact Statements states 
that the overall objective for the regulation and EIS is to evaluate a 
range of alternatives and strategies to manage PWC use, to protect 
recreation and resource values. This objective was derived from the 
enabling legislation for Glen Canyon National Recreation Area. As 
further stated in this section, a thorough analysis for the management 
of PWC was also provided under each alternative following the guidance 
of the National Park Service Management Policies (2001).
    Both the servicewide regulation and the National Park Service 
Management Policies acknowledge that park units proposing to continue 
PWC use must complete an analysis of impacts from PWC use. This 
analysis includes a thorough review of the enabling legislation of the 
unit and its management objectives, and the resources and values 
potentially affected by continued PWC use.
    In the case of the Draft and Final Environmental Impact Statements, 
three alternatives were analyzed under various PWC scenarios. The 
alternatives consider various ways of mitigating the effects of PWC on 
park resources and values, including limiting use in areas where 
management objectives strive to create a visitor experience without 
intrusion of these vessels or where important park resources must be 
protected. Alternative B (modified preferred alternative) in the Final 
Environmental Impact Statement includes mitigation measures to protect 
other park users from potential conflicts with PWC (refer to the 
discussion for alternative B in the ``Environmental Consequences'' 
chapter), as well as other measures to protect species of special 
concern and water and air resources.
    As a result, the alternatives presented in the Draft and Final 
Environmental Impact Statements protect resources and values while 
providing for a number of different recreational opportunities for park 
visitors to enjoy at Glen Canyon National Recreation Area. The NPS 
concluded that limiting PWC access in certain areas is necessary and 
appropriate for achieving management objectives in those areas of Glen 
Canyon NRA.
    6. Several comments were received citing the Organic Act and the 
mission of the National Park Service to leave the resources and 
wildlife ``unimpaired for future generations.'' A number of letters 
were received stating Federal law clearly prohibits activities that 
impair or derogate the recreation area resources.
    NPS Response: We agree. The ``Summary of Laws and Policies'' 
section in the ``Environmental Consequences'' chapter 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 Park Service applied these laws and policies to 
analyze the effects of PWC on Lake Powell resources and values can be 
found under ``Impairment Analysis'' in the ``Methodology'' section of 
the ``Environmental Consequences''

[[Page 55452]]

chapter. For each resource topic, the Final Environmental Impact 
Statement established 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 interdisciplinary planning team would 
consider mitigation measures to reduce the potential for ``major'' 
impacts, thus reducing the potential for impairment.
    The National Park Service finds that alternative B (modified 
preferred alternative) presented in the Final Environmental Impact 
Statement will not result in an impairment of park resources and values 
for which the Glen Canyon National Recreation Area was established.

Rulemaking Process Comments

    7. Several commenters questioned how a proposed rule supporting a 
preferred alternative can be issued before a Final Environmental Impact 
Statement and a Record of Decision have been issued.
    NPS Response: In January of 2003, the National Park Service 
published a proposed rule that proposed the preferred alternative in 
the Draft Environmental Impact Statement. The National Park Service 
approach was to allow the public an opportunity to view the preferred 
alternative in a regulatory form and comment on that proposed rule 
similar to the comment period for the Draft Environmental Impact 
Statement. Upon review and consideration of those comments, and in 
conjunction with the comments received on the Draft Environmental 
Impact Statement, the National Park Service has modified the final rule 
and the Final Environmental Impact Statement. Publishing the proposed 
rule after the DEIS allowed the National Park Service to maintain 
flexibility in the regulatory options in contrast to if it had waited 
until after the Record of Decision was issued, since that would have 
been a final decision document.
    8. One commenter stated that until the NEPA process is complete, 
the rulemaking does not perform the minimal duty of informing the 
agency or the public about the environmental effects of the proposed 
rule.
    NPS Response: Federal rulemaking requires that the National 
Environmental Policy Act be addressed, along with various other laws 
and Executive Orders, in the proposed and final rules. Again, the 
National Park Service approach was to allow the public to comment on 
the preferred alternative identified in the Draft Environmental Impact 
Statement in a regulatory form. This is the purpose of issuing proposed 
rules; to give the public a preliminary review of a proposed action 
with opportunity to comment on that proposal, provide additional or new 
information, and point out elements which the commenter feels are 
accurate or inaccurate. To that end, the agency considers those 
comments and modifies the final rule as necessary or even re-proposes a 
new rule if significant changes need to be made. The National Park 
Service cannot issue a final rule until a Record of Decision is issued 
under the NEPA portion of the Compliance section of the rule. The final 
rule is the National Park Service's final conclusion and must be 
consistent with the Record of Decision.
    9. One commenter stated that there is a problem with publishing a 
final rule prior to completing the NEPA process and that this would 
tend to nullify the intent of NEPA by revealing that the National Park 
Service has already reached a conclusion prior to actually performing 
the required analysis.
    NPS Response: We agree, but the commenter may misunderstand what 
was published in the Federal Register. The National Park Service has 
only published and taken comment on a proposed rule. This document is 
the final rule and it is being published now that the NEPA process is 
complete and a Record of Decision has been issued.
    10. One commenter stated that the statement ``The National Park 
Service has analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act * * *'' is clearly not true since the 
environmental analysis has not been completed. There has only been a 
Draft Environmental Impact Statement with no response to the concerns 
raised by the public.
    NPS Response: NEPA and CEQ guidelines require that agencies publish 
a Draft Environmental Impact Statement as indicated by the commenter. 
Because the issuance of a Draft Environmental Impact Statement is 
consistent with these guidelines, and neither NEPA nor CEQ address the 
timing related to issuance of a proposed rule, the National Park 
Service is in accordance with NEPA.
    11. One commenter is concerned that earlier public comments on the 
Draft Environmental Impact Statement were not taken into consideration 
in the rulemaking process and cites that the current discussion in the 
final rulemaking does not address any of the public concerns.
    NPS Response: Again, the commenter seems to be under the impression 
that the National Park Service had previously issued a final rule on 
PWC management at Lake Powell. The National Park Service has issued a 
proposed rule which solicits comments on the proposed action 
(implementation of the preferred alternative identified in the Draft 
Environmental Impact Statement). The National Park Service did not take 
any comments received on the Draft Environmental Impact Statement into 
consideration when writing the proposed rule. Comments on the Draft 
Environmental Impact Statement and the proposed rule were incorporated 
in the Final Environmental Impact Statement, which was released on May 
12, 2003, and were considered and are discussed in this final rule.
    12. One commenter questioned the process by which the public is 
informed of the availability of the proposed rule stating that they had 
not received notice of the publication of the rule and that it was not 
available in the press. The commenter further states that organizations 
or individuals who participate in the NEPA process should be kept 
informed of the progression of the process through the Draft 
Environmental Impact Statement, Environmental Impact Statement, 
Decision Notice, opportunities for appeal, and the opportunity to 
pursue a legal remedy.
    NPS Response: On January 17, 2003, Glen Canyon issued a press 
release informing the public of the publication of the proposed rule in 
the Federal Register (68 FR 2466). In addition, the Federal Register is 
available to all members of the public online at any time and in 
libraries throughout the country. The National Park Service does not 
routinely notify individuals personally about stages in the rulemaking 
process. The National Park Service has many parties interested in the 
issue of PWC and relies on local and national media and the National 
Recreation Area's website to provide notification of various milestones 
included in planning, environmental compliance, and rulemaking to 
interested parties.

Comments Related to Consultation and Coordination

    13. One commenter requested that the National Park Service include 
all of Bluewater Network's previous letters and correspondences sent to 
Glen Canyon concerning PWC activity in the administrative record for 
the rule.
    NPS Response: The ``Methodology and Purpose'' section at the 
beginning of volume 2 of the Final Environmental Impact Statement 
provides a detailed explanation of how public comments were received, 
reviewed, and ultimately

[[Page 55453]]

responded to in the document. The criteria for determination of 
substantive comments is found in CEQ regulations (40 CFR 1503.4) and 
amplified in Director's Order 12: Conservation Planning, Environmental 
Impact Analysis, and Decision Making (section 4.6 (B)). Public 
comments, as well as other factors, were used by Glen Canyon National 
Recreation Area to modify the ``preferred alternative'' (alternative B) 
that was analyzed in the Draft Environmental Impact Statement. A 
description of the modified preferred alternative B is found in the 
``Alternatives'' chapter of the Final Environmental Impact Statement 
and in this document.
    The National Park Service acknowledges the 30,000 citizen comments 
submitted on the National Park Service PWC rulemaking. The 
administrative record for this rulemaking includes all comments and 
most documents received from the public, including those comments 
submitted by the Bluewater Network.

Comments Related to Alternatives

    14. A number of commenters disagreed with the restrictions on the 
Escalante River presented in the analysis.
    NPS Response: Under current PWC management as described in the 
Superintendent's Compendium 2002, PWC travel upstream in the San Juan, 
Escalante, Colorado, and Dirty Devil Rivers is restricted. The 
management actions under the modified preferred alternative B, for the 
San Juan, Escalante, Colorado, and Dirty Devil Rivers, will 
additionally restrict travel downstream on the same stretches of river. 
Access will also be restricted in both directions on 10 additional 
miles of the Dirty Devil River and 23 miles on the Colorado River. We 
understand the disagreement with the restrictions, but based on the 
best available information developed in the EIS process, the NPS has 
determined these restrictions are necessary on the rivers to reduce 
visitor conflicts with river rafters, fishermen, and backcountry 
hikers; promote visitor enjoyment; and ensure visitor safety.
    15. Many commenters stated that the selection of alternative B 
provides no significant benefit, except to areas at the extreme ends of 
the tributaries where there is no significant visitation (and now no 
access). Additional alternatives are available that allow PWC's access 
to enjoy Lake Powell without destroying the experience of other users.
    NPS Response: The NPS Director's Order 12: Conservation Planning, 
Environment Impact Analysis and Decision-Making (NPS 2001b) states that 
a full range of alternatives must be examined, and that ``the 
alternatives carried forward for analysis must meet project objectives 
to a large degree, although not necessarily completely.'' The National 
Park Service believes the Draft and Final Environmental Impact 
Statements contain a reasonable range of alternatives under this 
definition.
    In addition, the modified preferred alternative B provides for a 
three-year pilot study to further evaluate PWC use areas. Potential 
restrictions of PWC use in other locations of the recreation area will 
be evaluated during the pilot study. The purpose of the pilot study and 
a description of how it will be implemented are provided in appendix C 
of the Final Environmental Impact Statement.
    16. Several commenters suggested that the alternative selected 
should incorporate increased education, strict enforcement, and testing 
and licensing of PWC operators and that they would support increased 
fees for these improvements or institution of a permit system.
    NPS Response: The states of Arizona and Utah establish the current 
operational age of PWC users. The licensing of boat or PWC operators 
rests with the State governments and is not an appropriate 
administrative activity for the Federal government. Currently, the 
State of Utah provides an extensive and nationally recognized mandatory 
education program for PWC users between the ages of 12 and 17. The 
National Park Service will continue to support this existing program. 
In addition, the modified preferred alternative B will provide enhanced 
educational materials and programs highlighting PWC issues to 
distribute to the public familiar with the State of Utah education 
program and for those from out of state and will seek funding to 
increase visitor protection staff.
    17. Several commenters suggested that the alternative selected 
should ban the use of conventional two-stroke technology and only allow 
clean technology engines that would meet 2006 EPA standards.
    NPS Response: The NPS considered an immediate ban of conventional 
two-stroke technology but, based upon the findings of the EIS process, 
determined it was not necessary to protect the resource and would 
impose an unreasonable economic burden on PWC users. Instead, the 
modified preferred alternative B of the Final Environmental Impact 
Statement requires that PWC used at Glen Canyon NRA must meet the EPA 
2006 emission standards by the end of 2012. PWC not meeting the 
standards would no longer be allowed to operate in Glen Canyon National 
Recreation Area beginning in 2013.
    The National Park Service expects that by 2012, most PWC owners 
would already be in compliance with the 2006 EPA marine engine 
standards. The economic impact on visitors as a result of the 2012 
engine type restrictions is expected to be small. PWC manufacturers 
currently offer models that are compliant with the EPA 2006 standards, 
and new PWC purchased after 2006 will all meet the EPA emission 
standards. The average operating life of a PWC is 5 to 10 years, 
depending upon the source (see the ``General Methodology'' section in 
the ``Environmental Consequences'' chapter of the Final Environmental 
Impact Statement). As a result, it is expected that the majority of 
noncompliant PWC would no longer be in operation when the engine 
restrictions proposed under the modified preferred alternative B take 
effect at the end of 2012.
    18. Several commenters suggested restricting speed in narrow 
canyons or making major canyons flat-wake zones to reduce visitor 
conflicts and to improve visitor safety.
    NPS Response: NPS considered these measures, but concluded they 
were not necessary because of existing restriction under state law. 
Under Utah State law, all boaters must operate at flat-wake speeds or 
idle speed within 150 feet of another boat, a person in or floating on 
the water, a waterskier (except those being towed), a shore fisherman, 
a launching ramp, a dock, or a designated swimming area. Arizona State 
law requires all boaters to operate at flat-wake speeds within 60 feet 
of another vessel. The modified preferred alternative B addresses 
signing, buoys, and boater education that will enhance other watercraft 
operators' observance of safe boating practices.
    In addition, the modified preferred alternative B currently 
provides for a three-year pilot study to further evaluate PWC-use 
areas. Potential restrictions of PWC use in other locations of the 
recreation area will be evaluated during the pilot study. The purpose 
of the pilot study and a description of how it will be implemented are 
provided in appendix C of the Final Environmental Impact Statement.
    19. Many commenters suggested additional alternatives to restrict 
PWC to specific areas such as: Wahweap Bay, Warm Creek Bay, the areas 
near Hall's Crossing and Bullfrog Bay, and the Colorado River from Warm 
Creek to the Dam. At a minimum, restrict their usage to the less remote 
areas of the lake, e.g., the main channel and certain large bays.

[[Page 55454]]

    NPS Response: The alternatives in the Draft and Final Environmental 
Impact Statements were developed based upon the best information 
available. The area restrictions under the modified preferred 
alternative B on PWC use were identified because of the levels of non-
motorized and passive uses that pose present or potential conflicts. 
Alternative B currently provides for a three-year pilot study to 
further evaluate PWC use areas. Potential restrictions of PWC use in 
other locations of the recreation area will be evaluated during the 
pilot study. The pilot study will provide the recreation area managers 
with additional information to evaluate reasonable measures to manage 
all lake uses and activity until a lake management plan is developed 
for Glen Canyon NRA. The purpose of the pilot study and a description 
of how it will be implemented are provided in appendix C of the Draft 
and Final Environmental Impact Statements.
    20. One commenter was opposed to implementing a pilot study because 
it would result in PWC users avoiding areas zoned as flat-wake and 
would concentrate their use in other areas of the lake thereby reducing 
the ability of the study to adequately assess conflict between PWC and 
other users.
    NPS Response: The National Park Service must manage Glen Canyon 
National Recreation Area to protect the recreational opportunities 
available at the park, as well as the natural resources found in the 
lake and surrounding lands. To accomplish this, a lake management plan 
will be developed which will provide the tools necessary to analyze 
activities that take place on the lake and determine if unacceptable 
impacts are occurring. Even though there is rationale and need to 
consider management of PWC under a separate decision-making framework, 
there remains the need to examine all uses of the lake collectively. As 
identified in the cumulative effects analysis under each impact topic, 
there are many management issues involving the mix of lake uses that 
will require additional planning in a lake management plan.
    Modified alternative B provides for a three-year pilot study to 
further evaluate PWC-use areas. Potential restrictions of PWC use in 
other locations of the recreation area will be evaluated during the 
pilot study. The pilot study will provide recreation area managers the 
best available data to manage all lake uses and activity until a lake 
management plan is developed. There are no guarantees or predictable 
outcome for what open areas PWC users will or will not utilize during 
the initial implementation of this regulation. The data collected will 
be analyzed based on the best information available to National Park 
Service managers at that time. The purpose of the pilot study and a 
description of how it will be implemented are provided in appendix C of 
the Draft and Final Environmental Impact Statement.

Comments Related to Visitor Conflicts and Safety

    21. One commenter stated that children under the age of 16 that 
operate PWC is a safety issue that should be addressed.
    NPS Response: The National Park Service does not currently have 
regulations which set a minimum vessel operator age. The States of 
Arizona and Utah do have current operational age requirements for PWC 
users and those requirements are enforced by Park Rangers at Glen 
Canyon as NPS requirements pursuant to 36 CFR 3.1. Arizona regulations 
require children younger than 12 years of age to be accompanied by an 
adult when operating a PWC. Children older than 12 years can operate a 
PWC alone. Utah laws and regulations state that children between 12 and 
15 can operate PWC after completing a mandatory boating education 
course if they remain within visual parental supervision. Children ages 
16 to 17 must complete a mandatory boating education course to operate 
a PWC without supervision. The NPS thinks the current age requirements 
are acceptable and do not pose a safety issue on Lake Powell.

Comments Related to Recreation Area Operations

    22. A number of commenters stated that the problem with PWC is that 
there are sufficient laws in place to protect visitors, however these 
laws are not being enforced and that there needs to be more enforcement 
of these laws.
    NPS Response: We disagree that the existing laws are not being 
enforced. NPS agrees that there is a need for more enforcement and an 
element of the modified preferred alternative B is to seek increased 
funding to provide additional law enforcement at Glen Canyon National 
Recreation Area to enforce the existing regulations. An increased 
number of law enforcement officers on the lake would have the added 
advantage of increasing the number of visitor contacts on the lake to 
prevent unsafe behavior. In addition, an active information and 
education program, also an element of the modified preferred 
alternative B, will help to reduce the need for enforcement actions. 
However, the NPS is working with law enforcement officers from Arizona 
and Utah to provide a proper level of enforcement of the existing laws.
    23. One commenter asked how the Federal noise standard which states 
``Operating a vessel in or upon inland waters so as to exceed a noise 
level of 82 decibels measured at a distance of 82 feet (25 meters) from 
the vessel is prohibited,'' would be enforced in the areas such as 
confined canyons and rivers where there is no point 25 meters from the 
shore.
    NPS Response: Federal and State law enforcement staff within Glen 
Canyon NRA enforce the Federal sound standard in areas where a distance 
of 82 feet (25 meters) occurs such as marina launch areas and large 
open bays. In confined canyons and river areas where 82 feet is not 
obtainable, a stationary sound level test can determine if a motorboat 
engine is exceeding acceptable sound levels. Federal and State 
protection staff have the ability to enforce excessive or unusual noise 
within confined areas utilizing the SAE J2005 and SAE J1970 as stated 
within the State of Utah Boating Laws and Rules.

Comments Related to Water Quality

    24. Based on the analysis of water quality in the Draft 
Environmental Impact Statement which stated that some hydrocarbons can 
adsorb onto suspended soil particles and settle out, one commenter 
requested that any monitoring plan should therefore include sediment 
chemistry monitoring in marinas and sediment deposition areas down 
current for the constituents most likely to settle, including poly-
aromatic hydrocarbons (PAH). Additionally, to understand whether 
current sediment conditions and aquatic health of the benthic community 
is altered from the historical baseline, the monitoring plan should 
include benthic population sampling, and bioassay of these sediments. 
The Final Environmental Impact Statement should identify whether there 
is potential for these sediment deposition areas to be dredged. If so, 
it may merit implementing management practices to reduce or eliminate 
release of toxic constituents from PWC use.
    NPS Response: Text has been added to the Final Environmental Impact 
Statement in the ``Alternatives'' section to describe the monitoring 
plan that was added to the modified preferred alternative B. A report 
is presently being completed for a study that was done to determine the 
chemical content of sediment at the main inflow area of the Colorado 
River. Funding is currently being sought for another study to do the

[[Page 55455]]

same evaluation in the San Juan and Escalante inflow/sediment 
deposition areas. These studies will identify the hydrocarbon content 
of these sediments. In addition, another study is currently being 
conducted that examines the dynamics of sediment re-suspension and 
reworking in the Colorado River inflow. The monitoring plan that will 
be developed for the lake will include PAHs, as well as other gasoline 
constituents that may become re-suspended when there is down-cutting of 
the sediment deposits as a result of lowering lake level. The 
monitoring program that will be developed will also consider the most 
likely places for contamination, such as marina areas and areas 
downstream from major sediment depositional zones, if appropriate. The 
data from a study examining visitor effects (including hydrocarbon 
contamination) in three canyons will be used to develop water quality 
baselines for Glen Canyon National Recreation Area. A lake-wide 
monitoring plan will then be developed using the data gathered and the 
methods tested in these three studies (sediment, three canyons, and 
synoptic). Plan development will be guided by the Technical Advisory 
Committee that was formed in 1996 by the National Park Service, the 
Departments of Environmental Quality Water Divisions of Utah and 
Arizona, and other interested organizations and agencies (including the 
EPA) to protect Lake Powell water quality. The Technical Advisory 
Committee provides an excellent vehicle for establishing standards and 
protocols for Lake Powell that are acceptable to the EPA and states and 
that conform to the states' regulations developed under authority of 
the Clean Water Act. Benthic population sampling and bioassay may be 
included in the monitoring plan as determined to be appropriate by the 
Technical Advisory Committee. Dredging to remove sediment is not 
contemplated by the National Park Service.
    25. One commenter stated that the water quality assessment uses 
assumptions that result in overestimation of potential PWC hydrocarbon 
emissions to the water in Lake Powell, amounting to the ``most extreme 
adverse conditions.'' For example, benzo(a)pyrene concentrations in 
gasoline range from 0.19 to 2.8 mg/kg, and the highest value was used. 
Similarly, MTBE concentrations in gasoline were range from 0 to 15%, 
but only the highest figure was used.
    NPS Response: In an effort to determine ``what could happen,'' a 
conservative methodology was constructed using the highest 
concentration of known pollutants commonly found in gasoline. The 
values referenced by the commenter were incorporated into the analysis 
to determine if the mixing layers of Lake Powell have adequate volume 
to mitigate the effects of carbureted two-stroke PWC engines, as well 
as all other two-stroke watercraft. Using this conservative approach, 
it was determined that the water quality impacts generated by PWC use 
would be negligible to minor, and that no water quality criteria for 
designated uses of the lake would be violated. The National Park 
Service is satisfied that incorporation of the given component 
concentration in gasoline has served this approach. Table 10 in the 
Final Environmental Impact Statement shows the benchmarks used in the 
evaluation for each pollutant.
    In addition the modified preferred alternative B in the Final 
Environmental Impact Statement will provide an important step toward 
substantially reducing petroleum-related pollution by requiring PWC 
used in the recreation area after 2012 be 100% compliant with the EPA 
2006 emission standards for gasoline marine engines. Based on the 
analysis presented, the National Park Service finds that the modified 
preferred alternative B (including the provision for continued PWC use) 
will not result in an impairment of park water quality.
    26. One commenter stated that the assessment represents an outdated 
look at potential emissions from an overstated PWC population of 
conventional two-stroke vessels, and underestimates the accelerating 
changeover to four-stroke and newer technology two-stroke models. Sales 
of these newer models have already overtaken conventional two-stroke 
PWC. The commenter estimates that the changeover to PWC engines that 
meet the requirements of the EPA 2006 and California Air Resources 
Board (CARB) 2008 emission standards is occurring much more rapidly 
than EPA and the National Park Service have estimated. The commenter 
believes that the amounts of unburned fuel released at Lake Powell will 
decline rapidly, achieving a reduction from the 1998 baseline levels of 
more than 50% by 2006 and approximately 80% by 2012. The Draft 
Environmental Impact Statement, in contrast, only estimated a 25% 
reduction in hydrocarbon emissions from PWC in the Glen Canyon National 
Recreation Area by 2006, and only a 50% reduction by 2012.
    NPS Response: In the water quality analysis, the assumption made by 
the commenter was that clean technology engines (any engine not using 
carbureted two-stroke technology) would be 90% cleaner than the 
carbureted two-stroke engines. This is based on two assumptions made by 
the commenter. The first is based on confidential, proprietary PWC 
sales and forecast data prepared by PWC manufacturers. No supporting 
data was supplied with the comment.
    The commenter states that the data indicates that the conversion of 
PWC models to cleaner engines is occurring more rapidly than 
anticipated in the 1996 EPA analysis of the effects of the conversion 
rule. While the National Park Service has no reason to doubt that PWC 
conversions are proceeding at a greater rate than forecast by the EPA, 
there is no survey or similar data available at this time indicating 
the engine conversion at Glen Canyon is proceeding at a faster or 
slower rate than the EPA forecast. Therefore, use of the EPA rates is 
considered appropriate. The second assumption by the commenter is that 
75% of the PWC at Glen Canyon would have engines that comply with the 
CARB conversion rule that requires marine engine manufacturers 
implement the EPA emission targets sooner than those outlined by the 
Federal rule. The commenter assumes that 50% of PWC users at Glen 
Canyon will be from California, and will have CARB-compliant 
watercraft. And that an additional 20% will have CARB-compliant 
vessels. The National Park Service concurs that many watercraft users 
at Glen Canyon have California registered PWC, and they will meet CARB 
standards. However, there is no data relative to PWC at Glen Canyon to 
confirm the 75% figure assumed by the commenter.
    The National Park Service emissions calculations are conservative 
only in the sense that they do not specifically account for watercraft 
that have already been or will be converted to meet EPA or CARB 
standards. Under the modified preferred alternative B, PWC used in the 
recreation area after 2012 would be 100% compliant with the EPA 2006 
emissions standards for the manufacturing of gasoline marine engines.
    27. One commenter stated that the Draft Environmental Impact 
Statement acknowledges that hydrocarbon compounds evaporate rapidly 
from water and are subject to chemical breakdown, but then states that 
attenuating factors such as evaporation and photodegradation are not 
included

[[Page 55456]]

in the calculations. In addition, the EPA has confirmed that studies 
show most unburned gasoline and gasoline additives emitted from two-
stroke marine engines evaporate rapidly from water (The Effects of 
Marine Engine Exhaust Emissions on Water Quality, Summary of Findings 
of Various Research Studies, EPA 1994).
    NPS Response: In 1994, the EPA released a public memorandum 
entitled ``The Effects of Marine Engine Exhaust on Water Quality: 
Summary of Findings of Various Research Studies.'' This document 
summarized 11 research papers and presents volatilization rates and 
dilution ratios for observable effects such as taste, odor, and 
generation of oil film. At temperatures commonly found in Lake Powell 
during the summer boating season, the majority of gasoline and oil 
components would be volatilized within 1.2 hours. Although a portion of 
the gas/oil mixture may accumulate in the water column, water quality 
testing at Lake Powell did not reveal detectable levels of most PAH 
components. Given that the contaminants were largely undetectable, 
specific cumulative analysis of the PWC contribution is not possible at 
this time. The text has been changed in the Final Environmental Impact 
Statement to include information on volatility consistent with the 
above-referenced EPA memorandum.
    28. One commenter requested that the Final Environmental Impact 
Statement list all designated uses for the water in Lake Powell.
    NPS Response: Designated uses for the water of Lake Powell, as 
defined by Arizona and Utah, include drinking, recreation, 
agricultural, and aquatic life. The complete list of designated uses of 
the water as defined by Arizona and Utah are listed in the ``Water 
Quality'' section of the ``Affected Environment'' chapter of the Draft 
and Final Environmental Impact Statements.
    29. One commenter wanted the presence and location of drinking 
water intakes addressed in the analysis.
    NPS Response: There are two drinking water intakes within the lake, 
one near Hite, Utah and one at Glen Canyon Dam that serves the town of 
Page, Arizona. The intake near Hite is approximately \1/2\ mile north 
(upstream) of the marina when the lake level is above 3,630 feet above 
sea level. The Glen Canyon Dam intake is under the jurisdiction of the 
Bureau of Reclamation. The National Park Service has no access to the 
site, and it is not responsible for monitoring at this location. The 
locations of the drinking water intakes near Hite Marina and at Glen 
Canyon Dam has been added to the ``Affected Environment'' chapter in 
the ``Water Quality'' section in the Final Environmental Impact 
Statement.
    30. One commenter stated that presenting average values for water 
quality testing samples infers complete mixing of lake waters.
    NPS Response: Inclusion of average values was not intended to infer 
that lake waters are mixed, but rather to show the reader a mean value 
for relative comparison to measured maximum and minimum values. The 
``average values'' have been removed from Table 8 in the Final 
Environmental Impact Statement.
    31. One commenter stated that the need to sample Wahweap Marina is 
called to attention based on the results of the Bullfrog Marina sample 
where benzene concentrations were elevated.
    NPS Response: Under the modified preferred alternative B, the 
National Park Service would implement a water quality monitoring 
program at Lake Powell. This program will be guided by the Technical 
Advisory Committee, and is detailed in the Final Environmental Impact 
Statement description of the modified preferred alternative B in the 
``Alternatives'' chapter. Locations selected for ongoing testing will 
be chosen to maximize use of data in making appropriate management 
decisions.
    32. The EPA requested that monitoring should also be done in 
drinking water intakes to assure that drinking water standards are met 
for Arizona and Utah.
    NPS Response: Water quality monitoring at the Hite drinking water 
intake would take place under all alternatives addressed in the Final 
Environmental Impact Statement. The water quality monitoring program 
would be directed by the Technical Advisory Committee, formed in 1996 
to protect Lake Powell's water quality. The plan would ensure that 
water quality complies with State regulations and criteria and is 
consistent with requirements of the Clean Water Act.
    The drinking water intake at Glen Canyon Dam, which serves the town 
of Page, Arizona, is under the jurisdiction of the Bureau of 
Reclamation. The National Park Service has no authority to access this 
site to obtain water quality samples. Potable water obtained from Lake 
Powell is tested after treatment at both the Hite and Page water 
treatment plants. The localities are responsible for the final quality 
of the drinking water, in addition to the State requirements for the 
quality of the drinking water source. The ``Water Quality'' section in 
the ``Affected Environment'' chapter of the Final Environmental Impact 
Statement has been revised to include additional information regarding 
the drinking water intakes at Hite and Page.
    33. The EPA questioned the presence of a ``rainbow sheen'' in the 
marinas and whether this was a violation of Utah Water Quality 
Standards (R317-2, Utah Administrative Code).
    NPS Response: The Utah Department of Environmental Protection, 
Water Quality Division, was contacted for interpretation of Water 
Quality Standard R317-2. The term ``oil scum'' is not intended to 
equate to the ``rainbow sheen'' commonly seen on water surfaces at 
fueling stations and marinas. Although these sheens could be considered 
minor violations, they are generally localized and transient and 
therefore not considered a significant enough concern to warrant 
pursuit of a violation by either state. The sheen itself was not tested 
during water quality sampling for this assessment. Suggestions 
regarding sampling locations and techniques would be incorporated into 
the water quality monitoring program proposed under the modified 
preferred alternative B in the Final Environmental Impact Statement. 
Recognizing that the presence of the sheen does indicate degraded water 
quality, the text in the Final Environmental Impact Statement has been 
changed to acknowledge temporary, localized degradation of water 
quality. Because the sheen results from combined marina and fueling 
activities, it was not possible to determine the specific PWC related 
contribution to this transient water quality issue.
    The modified preferred alternative B in the Final Environmental 
Impact Statement includes mitigation measures to further protect park 
waters. Under the modified preferred alternative, PWC used in the 
recreation area after 2012 will be 100% compliant with the EPA 2006 
emission standards for the manufacturing of gasoline marine engines, 
further reducing petroleum-related pollution. Based on the analysis 
presented, the National Park Service finds that the modified preferred 
alternative B will not result in an impairment of park water quality.
    34. The EPA suggests that the analysis should address whether PWC 
use and fueling of vessels in marinas that result in a visible sheen or 
numeric concentrations would be in violation of Arizona water quality 
standards. If so, the water quality effects should be designated 
``major'' rather than ``negligible to minor''.
    NPS Response: Lake Powell is an Arizona Tier II water body, and 
existing water quality ``shall be maintained and

[[Page 55457]]

protected. Water quality shall not be lowered to a level that does not 
comply with applicable water quality standards'' (Arizona 
Administrative Code R18-11-107; see the ``Water Quality'' section, 
``Affected Environment'' chapter). The National Park Service water 
quality sampling performed at Lake Powell did not show that any Arizona 
water quality criteria were exceeded. As shown in Table 9 in the 
``Affected Environment'' chapter, Arizona standards are not as 
stringent as those for Utah, with the exception of naphthalene and 
these standards are not violated. There would be no violation of 
Arizona water quality standards set for the designated uses of Lake 
Powell under any of the alternatives analyzed in this assessment. The 
EIS text has been edited in the ``Water Quality'' section of the 
``Environmental Consequenses'' chapter to clearly state this finding.
    The modified preferred alternative B in the Final Environmental 
Impact Statement includes mitigation measures to further protect water 
quality in the recreation area. The modified preferred alternative will 
provide an important step toward substantially reducing petroleum-
related pollution by requiring all PWC used in the recreation area 
after 2012 to be 100% compliant with the EPA 2006 emissions standards 
for the manufacturing of gasoline marine engines.
    35. One commenter stated that cumulative effects of the build up of 
oil and gasoline in the lake over time were ignored. The estimated 
emission into the lake assumed that on a daily basis, 100% of 
hydrocarbon emissions volatilized daily. The emissions from PWC contain 
oil, and oil does not volatilize completely.
    NPS Response: The commenter has misinterpreted the DEIS. NPS never 
stated that 100% of the hydrocarbon emissions volatized daily. Although 
most polycyclic aromatic hydrocarbon components are volatile, some of 
these hydro pollutants do accumulate in the water column. The text has 
been changed and is included in the Final Environmental Impact 
Statement to provide more information on volatility and on the 
evaporation and half-life rates applicable to the waters of Lake 
Powell. Detailed discussions on this issue can be found in the Final 
Environmental Impact.
    36. One commenter stated that the analysis lacks a description of a 
detailed long-term monitoring plan to ensure evaluation of impacts on 
the aquatic system.
    NPS Response: Modified alternatives A and B addressed in the Final 
Environmental Impact Statement include implementation of a water 
quality monitoring project. The project will be directed at developing 
a detailed long-term monitoring plan by the Technical Advisory 
Committee, formed in 1996 to protect Lake Powell's water quality. The 
plan will ensure that water quality complies with State regulations and 
criteria and is consistent with requirements of the Clean Water Act. 
The monitoring project will benefit from the findings of two recently 
completed studies on the chemical content of lake waters and sediment 
in the Colorado River inflow area and three side canyons. An additional 
study on the dynamics of sediment re-suspension in the Colorado River 
inflow is currently underway. Funding is also being sought for 
additional studies in the San Juan and Escalante River inflow areas. 
The monitoring project will include hydrocarbon content of sediments 
and PAH content of lake waters. Benthic population studies may be 
included, if deemed necessary by the Technical Advisory Committee. The 
results of the monitoring project will be used to guide management 
decisions for any impacts on the aquatic system on Lake Powell.
    37. One commenter requested that the water quality section of the 
Final Environmental Impact Statement should clearly state whether 
activities regulated by the National Park Service are violating, or 
have the potential to violate, State-adopted, EPA-approved water 
quality standards under the Federal Clean Water Act.
    NPS Response: We agree with the comment and the FEIS was revised to 
show that there are no violations or potential violations of State or 
Federal standards. The Utah Department of Environmental Quality, Water 
Quality Division, was contacted for clarification of the State's 
assessment of Lake Powell water quality. The division reported that the 
State has no concerns with regard to the 1.7 [mu]g/L and 3.43 [mu]g/L 
benzene concentration obtained near Bullfrog Marina during water 
quality testing. The drinking water intake near Hite Marina is 
approximately 0.25 mile upstream of the marina, and it is unlikely that 
gasoline components from the marina would migrate in this direction. 
Hite is also a smaller marina than Bullfrog, with much less boat 
traffic and fueling activities. Because of current water levels, Hite 
Marina is not currently operating. Water levels will need to increase 
significantly in Lake Powell before Hite Marina can return to full 
operation. In addition, the intake floats at approximately 12 feet 
below the water surface. Benzene is lighter than water, highly 
volatile, and has a half-life of approximately five hours. There are no 
water quality concerns by the State of Arizona since no drinking water 
is extracted from Lake Powell in Arizona.
    The Final Environmental Impact Statement proposes a water quality 
monitoring program for modified alternatives A and B. This plan is 
outlined in responses to ``General Comments'' above.
    The ``Water Quality'' section in the ``Affected Environment'' 
chapter has been changed in the Final Environmental Impact Statement to 
include new information on the drinking water intakes and on the 
jurisdiction over the two sites.
    38. One commenter stated that the assessment of water quality is 
based on water column samples taken at 0.5 and 3 meter depths. Given 
that most constituents from watercraft exhaust or refueling spills will 
float on the water's surface, it would seem logical to collect water 
samples at the water's surface rather than 0.5 meters below to 
determine compliance with standards.
    NPS Response: The objective of the sampling effort was to collect 
representative data that would be most useful for comparison to Clean 
Water Act water-quality criteria and standards, especially those 
promulgated for the protection of drinking water supplies and aquatic 
life. To meet these objectives, sample locations that represented mixed 
and homogeneous conditions after considering watercraft propeller and 
wake affects and naturally occurring wave action would yield date 
representative for these purposes. To determine appropriate sampling 
depths that would meet these criteria, the most recent body of 
literature on water pollution caused by motorized watercraft was 
reviewed and researchers in the field were sought and interviewed.
    Through that review and those interviews the NPS determined that 
there is evidence that, for motorized vessel-expelled PAHs, completely 
mixed conditions occur at 3m depth. PAH concentrations that are found 
in completely mixed conditions are more representative of bioavailable 
concentrations for aquatic life and therefore more comparable to water 
quality criteria.
    Additionally, concentrations of BTEX in particular were assumed to 
be much more variable at the surface than 0.5m below it and, therefore, 
concentrations at the water surface would be less representative. The 
assumption here was that due to vessel and wave action, mixing would be 
greater just below the surface rather than right at it. Previous 
research found that, at least at near-

[[Page 55458]]

shore locations, the 0.5m depth was a representative depth when taking 
this into consideration.
    Lastly, most studies and long-term monitoring efforts conducted 
elsewhere were designed with sampling stations at 3m and/or 0.5 depths, 
thus allowing the Lake Powell results to be compared to results in 
these other water bodies.
    39. One commenter stated that the numbers used to predict loading 
on the lake for future years assume a zero growth condition. A zero 
growth assumption is not realistic for the boating industry or Glen 
Canyon National Recreation Area. Glen Canyon National Recreation Area 
has plans to continue to develop projects that support the boating 
industry.
    NPS Response: New estimates for changes in boat uses at Glen Canyon 
have been generated for the Final Environmental Impact Statement based 
on trends for National Park Service units with PWC usage throughout the 
United States. Over the last 10 years Glen Canyon NRA has experienced a 
decrease in boating use at about -2.6%. In order to give a variety of 
growth scenarios for the future, the effects of three differing growth 
scenarios are now described in the analysis: (1) Annual increase in use 
of 2% per year, (2) no change (flat rate), and (3) annual decrease in 
use of 2% per year. For a complete explanation of the change in use, 
see the ``Visitor Use and Experience'' section in the ``Affected 
Environment'' chapter in the Final Environmental Impact Statement.
    40. One commenter stated that there was no conclusion as to how 
much of the water pollution could be attributed to PWC.
    NPS Response: The conclusion on PWC hydrocarbon contribution 
relative to all watercraft is presented in the ``Environmental 
Consequences'' chapter of the Draft and Final Environmental Impact 
Statements. Using the methodology developed by the National Park 
Service Division of Environmental Quality (Bransom) and assumptions of 
the relative polluting capabilities of PWCs and other motorized 
vessels, PWC were estimated to contribute 50% of all hydrocarbon 
pollution to the lake.
    41. One commenter performed calculations to determine the PWC 
contribution to lake pollution. Assuming PWC engines have four times 
the emission displacement into the water of other boats, a total 
contribution of 21% was obtained versus the NPS assumption of 50%.
    NPS Response: Commenter's assumptions about engine sizes do not 
reflect the boating distribution data gathered for Lake Mead which was 
used as an estimate of use by engine type on Lake Powell. The 
``Methodology and Assumptions'' section in the ``Environmental 
Consequences'' chapter of the Draft and Final Environmental Impact 
Statements explains the boat distribution and clearly shows the 
greatest percent of boat hours are generated by ``stern-drive'' or 
inboard/outboard engines. These engines are often comparable in size to 
automobile engines, not one-quarter the size of the typical PWC engine. 
Because the commenter did not consider the distribution of engine types 
in the recreation area, we believe that their conclusion that PWC 
contribute only 21% of the pollution into the lake is incorrect. 
Furthermore, the methodology used in the EIS analysis differed from the 
commenter's calculation in that the EIS methodology considered the 
pollution contribution to the lake by engine type (carbureted, two-
stroke direct-injected, and four-stroke). The assumptions in the EIS 
methodology are that four-stroke and clean technology two-stroke 
engines deliver to the water 10% of the hydrocarbons of carbureted two-
stroke engines.
    42. One commenter suggested calculating two-stroke engine pollution 
contribution using fuel and engine oil purchases made at the lake's 
marinas.
    NPS Response: Many boaters buy fuel and oil at locations other than 
the marina, and using the marina sales would not capture the total 
amount of petroleum products used on the lake by two-stroke or other 
engine types.

Comments Related to Air Quality

    43. Commenters stated that the National Park Service did not 
consider that the changeover to four-stroke and two-stroke direct 
injection PWC engines to meet the requirements of the EPA 2006 and CARB 
2008 emission standards is occurring much more rapidly than EPA and 
National Park Service has estimated. Amounts of emissions at Glen 
Canyon will accordingly continue to decline rapidly, achieving a 
reduction of approximately 90% by 2012.
    NPS Response: All alternatives use the rate of conversion of the 
engines from carbureted two-stroke to clean engines consistent with the 
EPA rule, ``Final Rule for New Gasoline Spark-Ignition Marine Engines'' 
(EPA 1996). The National Park Service used the EPA data where it was 
assumed that 21.6% of the carbureted two-stroke engines in use in 1998 
would be replaced by 2004 and that 58.4% would be replaced by 2012. The 
commenter's opinion is principally based on confidential, proprietary 
PWC sales and forecast data prepared by PWC manufacturers. This 
proprietary data was not supplied with the comment and, therefore, was 
not available to the National Park Service.
    The commenter states that the data indicates that the conversion of 
two-stoke carbureted PWC models to cleaner direct-injection engines is 
occurring more rapidly than anticipated in the 1996 EPA analysis of the 
effects of the conversion rule. While the National Park Service has no 
reason to doubt that PWC conversions and sales may be proceeding at a 
greater rate than forecast by the EPA, there is no survey or similar 
data available at this time that indicates that the engine mix at Glen 
Canyon is proceeding at a faster or slower rate than the EPA forecast. 
Therefore, use of the EPA rates is considered appropriate in disclosing 
potential impacts on air quality. Under the modified preferred 
alternative B, PWC used in the recreation area after 2012 would be 100% 
compliant with the EPA 2006 emissions standards for the manufacturing 
of gasoline marine engines versus 58.4 percent estimated by EPA in 
1996. The concessionaire is currently replacing any discontinued PWC 
with a new model that meets or exceeds the EPA 2006 standards. It is 
estimated that the concessionaire fleet would consist of PWCs meeting 
the EPA 2006 standards within the next three years.
    PWCs rented outside the recreation area for use in the recreation 
area will also have to meet the EPA emission standards after 2012. 
Entrance to the recreation area will require all PWC to have EPA 2006 
emission certification prior to entering the park.
    44. One commenter expressed concern that PWC emissions are 
declining faster than forecasted by the EPA. The existing fleet of PWC 
has achieved a 25% reduction compared to hydrocarbon plus nitrogen 
oxides (HC + NOX) emission levels before the EPA regulation 
became effective, and will achieve reductions greater than 80% by 2012.
    NPS Response: The comment is principally based on two assumptions 
made by the commenter. The first is based on confidential, proprietary 
information regarding PWC sales and forecast data prepared by PWC 
manufacturers. No supporting data was supplied with the comment. The 
commenter states that the data indicates that the conversion of PWC 
models to cleaner engines is occurring more rapidly than anticipated in 
the 1996 EPA analysis of the effects of the conversion rule. While the 
National Park Service has seen that local rentals

[[Page 55459]]

of PWC have exceeded estimates for conversions and are proceeding at a 
greater rate than forecast by the EPA, there is no sales data available 
at this time indicating the engine conversion at Glen Canyon is 
proceeding at a faster or slower rate than the EPA forecast. Therefore, 
use of the EPA rates is considered appropriate, and use of an 
accelerated rate may be considered speculative without additional 
supporting data.
    The second assumption by the commenter is that 75% of the non-
rental PWC at Glen Canyon will have engines that comply with the CARB 
conversion rule for all years, which requires that marine engine 
emission reductions targeted by the EPA for 2006 be achieved in 
California by 2001. The California rule then requires further emission 
reductions by 2004 and 2008 (Title 13, California Code of Regulations, 
sections 2440-2448). The commenter assumes that 50% of the PWC users at 
Glen Canyon will be from California and all will have CARB-compliant 
watercraft, and that, because of manufacturing and sales efficiencies 
outside of California, an additional 25% of the Glen Canyon PWC users 
will have CARB-compliant watercraft. The National Park Service concurs 
that many watercraft users at Glen Canyon have California-registered 
PWC, and that they will meet the CARB standards. However, there is no 
data relative to PWC at Glen Canyon to confirm the 75% figure assumed 
by the commenter. The National Park Service emission calculations are 
conservative only in the sense that they do not specifically account 
for watercraft that have already been or will be converted to meet CARB 
standards. Under the modified preferred alternative B, PWC used in the 
recreation area after 2012 would be 100% compliant with the EPA 2006 
emissions standards for the manufacturing of gasoline marine engines.
    45. Continued PWC use on Lake Powell under the proposed rule will 
not pose any adverse health risks for park visitors under even the 
``worst case'' airborne PAH concentrations that could theoretically be 
generated by the vessels.
    NPS Response: The commenter submitted an analysis of PAH emissions 
at Glen Canyon to support the comment. The commenter's analysis uses 
many conservative assumptions and a pollutant dispersion model to 
conclude that PAH exposure to PWC users from PWC PAH emissions would be 
less than one thousandth of one percent (<0.001%) of an Occupational 
Safety & Health Administration (OSHA) limit for PAH exposure. Shoreline 
exposure would be even lower. OSHA published the limit as part of a 
discussion of safety and health related to coal tar pitch volatiles. 
The limit is for total PAH, and the comment in reference to OSHA for 
limits of coal tar volatiles does not apply in the context of the Glen 
Canyon PWC rule-making discussion. In addition, another relevant study 
concluded that there are some health effects associated with PAH 
emissions (see Environmental and Occupational Exposure to Toxic Air 
Pollutants from Winter Snowmobile Use in Yellowstone National Park, 
Kado et al. 2001). Therefore, the National Park Service cannot support 
a conclusion, as the commenter suggests, that PWC use at Glen Canyon 
would pose no adverse health risks from toxic air pollutant emissions.
    46. One commenter believes that the analysis reference to moderate 
levels of air quality impacts from HC, NOX, and carbon 
monoxide (CO) emissions associated with PWC use is incorrect and 
potentially misleading. The commenter believes that these emissions, 
even under the ``worst case'' scenario, would not pose a health risk 
for park visitors.
    NPS Response: Emission levels shown in the Air Quality analysis 
tables in the ``Environmental Consequences'' chapter are not directly 
comparable with the emission levels submitted by the commenter, because 
the National Park Service Air Quality Division calculates emissions on 
an annual basis, and the commenter's calculations are for an average 
boating day during the boating season. Some assumptions made for 
National Park Service calculations are more conservative than those 
used for the commenter's calculations. The National Park Service 
assumed that the conversions from carbureted two-stroke engines to 
cleaner engines would occur at the rate forecast by the EPA. Based on 
the National Park Service model (presented in the tables as tons per 
year of estimated hydrocarbon and nitrogen oxide emissions for all 
alternatives), a 21.6% conversion is assumed from 1998 levels by 2004 
and a 58.4% conversion by 2012. The commenter assumes a faster 
conversion. The commenter assumes that emissions would be reduced 
because a significant portion of PWC would be cleaner than EPA 
requirements due to compliance with the more restrictive California 
requirements. There is no data relative to PWC at Glen Canyon to 
confirm the 75% figure that is assumed by the commenter. The National 
Park Service emission calculations are conservative only in the sense 
that they do not specifically account for watercraft that have already 
been or will be converted to meet either CARB or EPA standards. Under 
the modified preferred alternative B, PWC used in the recreation area 
after 2012 would be 100% compliant with the EPA 2006 emissions 
standards for the manufacturing of gasoline marine engines, which would 
result in a substantial reduction in emissions. Using the EPA forecast 
rate of emission reductions in the National Park Service air quality 
emissions model, and assuming a 2% annual visitor growth rate, the PWC 
emissions associated with the modified preferred alternative would be 
up to 365 tons per year of HC + NOX by 2012 and 2,955 tons 
per year of CO, which is considered by the National Park Service to be 
a moderate adverse effect.
    47. One commenter stated the National Park Service analysis does 
not reflect the increase in nitrogen oxides emissions that are likely 
with the conversion to more four-stroke engines.
    NPS Response: The Draft and Final Environmental Impact Statements 
do note in the ``Air Quality'' section of the ``Environmental 
Consequences'' chapter that nitrogen oxide emissions will increase with 
implementation of the EPA 1996 rule and the conversion to 4-strokes. 
However, there would be sizeable reductions in emissions such as VOC, 
HC, PM and CO and overall air quality in the recreation area would 
continue to be below national ambient air quality standards.
    48. One commenter stated the National Park Service analysis does 
not reflect CARB research which found that four-stroke PWC emit more 
carbon monoxide (CO) pollution than do conventional two-stroke 
machines. The commenter states that the National Park Service should be 
concerned with any technology that emits large amounts of this 
pollution given the recent spike in carbon monoxide-related deaths at 
Glen Canyon National Recreation Area.
    NPS Response: The CARB 2001 study, Outboard Engines and PWC 
Emissions to Air and Water: A Laboratory Study found that CO emissions 
from four-stroke outboard and PWC engines tested were lower than 
conventional two-stroke engines. The CARB results indicate that the 
carbureted two-stroke PWC engine tested emitted nearly three times the 
amount of carbon monoxide than did the four-stroke engine. Results also 
indicated that the four-stroke outboard engine emitted lower levels of 
carbon monoxide than two-stroke carbureted outboard engines with 
exception of the two-stroke 90 hp direct-injected engine, which emitted 
lower

[[Page 55460]]

levels than the four-stroke engine. In addition, the EPA emission test 
data from outboard marine engines indicates that carbon monoxide 
emissions from four-stroke engines are lower than conventional two-
stroke technology engines (EPA 1996). Although the EPA final regulation 
on emission standards does not contain standards for carbon monoxide, 
it is expected that the engine technology changes which would be used 
to meet the EPA standards would result in some modest carbon monoxide 
reductions (EPA 1996). Under the modified preferred alternative B, PWC 
used in the recreation area after 2012 will be required to be 100% 
compliant with the EPA 2006 emission standards for the manufacturing of 
gasoline marine engines, which would result in a substantial reduction 
in total emissions. Although there would not be a significant reduction 
in carbon monoxide emissions over the next ten years, based on the 
National Park Service model, they would be reduced from 3,168 to 2,955 
tons per year assuming a 2% annual increase in visitor use.
    Carbon monoxide related fatalities that have occurred in the 
recreation area have been a result of exposure to extremely high levels 
of carbon monoxide in confined, poorly ventilated spaces such as under 
a boat swimming platform or near exhaust ports. The levels of carbon 
monoxide presented in the analysis represent carbon monoxide levels 
over the entire recreation area, dispersed in a large volume of air, 
and are based on year-long boating activity. There has only been one 
reported fatality caused by carbon monoxide poisoning at the recreation 
area involving a PWC. This individual died while being towed on his 
broken PWC behind a motorboat. Nationally, of the 701 boating 
fatalities reported in 2000, five deaths were attributed to carbon 
monoxide. None of these deaths involved PWC.
    The National Park Service is concerned about fatalities at Glen 
Canyon National Recreation Area related to carbon monoxide poisoning. 
The park has an active and aggressive campaign to inform visitors to 
the recreation area of the risk of carbon monoxide poisoning from 
exposure to boat generators, engines, and gas appliances. This safety 
information is provided to visitors at entrance gates, visitor centers, 
recreation area headquarters, and on the recreation area Web site.
    49. One commenter asked the National Park Service to disclose the 
derivation of the 21% average engine load as an assumption in the 
methodology of the air quality analysis.
    NPS Response: The assumption of an average engine load of 21% for 
PWC was based on the activity data used in the EPA NONROAD model.
    50. One commenter expressed concern over the inconsistencies in the 
Draft Environmental Impact Statement regarding the volatilization of 
pollutants to the air and water. This commenter stated that the text 
should use the same percentage for how much and which pollutants 
volatize in both the air and water quality impacts sections. No 
estimate of the percent that volatilizes is given in the water quality 
section. In the air quality section it is stated that up to 30% of the 
fuel from PWC is unburned and is discharged as gaseous hydrocarbons 
(Draft Environmental Impact Statement, p. 181). The numbers should be 
consistent for the analysis.
    NPS Response: The Draft Environmental Impact Statement incorrectly 
stated that 30% of the fuel is exhausted into the air. However, the 
Final Environmental Impact Statement correctly states that up to one-
third of the fuel delivered to the two-stroke carbureted PWC engine is 
unburned and discharged into the water instead of exhausted into the 
air. It is difficult to determine how much of the fuel is volatilized 
into the atmosphere. As stated in ``Methodology and Assumptions'' 
section under ``Air Quality,'' many organic pollutants that are 
initially dissolved in the water volatilize to the atmosphere, 
especially if they have high vapor pressures, are lighter than water, 
and mixing occurs at the air/water interface. It is difficult to assess 
the specific evaporation rates of exhaust pollutants from PWC because 
the rates will differ according to the ratio of gas to oil used, by 
fuel brand, by engine, and operating conditions such as temperature and 
water aeration.
    In 1994, the EPA released a public memorandum entitled ``The 
Effects of Marine Engine Exhaust on Water Quality: Summary of Findings 
of Various Research Studies.'' This document summarizes 11 research 
papers and presents volatilization rates and dilution ratios for 
observable effects such as taste, odor, and generation of oil film.
    At temperatures commonly found in Lake Powell during the summer 
boating season (77[deg]F-86[deg]F), 78-84% of the gasoline/oil mixture 
(50:1) for carbureted two-stroke engines would be evaporated from the 
water to the air in 1.2 hours. This EPA review also cites a study by 
the Boating Industrial Association (1974) that describes the two-stroke 
gas/oil mixture as having an 11-day half-life in still water (such as a 
laboratory tank) and a half-life of less than one day in open, aerated 
water (such as a lake). A description of the volatile nature of five 
gasoline constituents has been provided in the ``Water Quality'' 
section of the ``Affected Environment'' chapter.
    51. One commenter requested that the Final Environmental Impact 
Statement include updated information on the July 2002 EPA proposed 
cleaner evaporative standards for PWC.
    NPS Response: The text in the ``Air Quality Methodology and 
Assumption'' section of the ``Environmental Consequences''chapter has 
been changed to include the proposed EPA evaporative standards.
    52. One commenter argued that the National Park Service based its 
findings on recent studies suggesting that changing from two-stroke 
carbureted to two stroke direct injection PWC engines might increase 
PAH emissions. A study by Norman Y. Kado et al, Airborne Particle 
Emissions from two- and four-stroke Outboard Marine Engines: Polycyclic 
Aromatic Hydrocarbon and Bioassay Analysis, (hereinafter referred to as 
``Kado Study'') quantified PAH concentrations in airborne particulate 
emissions. The Kado Study showed that the PAH emissions from the 
direct-injection two-stroke engines tested were greater than from 
carbureted two-stroke engines. The direct-injection two-stroke outboard 
engine used in that study was a 1999 model and represented very early 
technology, and the results of the study are not applicable to newer 
model direct-injection outboard engines, much less PWC engines.
    NPS Response: The NPS disagrees with the commenters conclusions. In 
addition, because many older engines would still be allowed to operate 
at Lake Powell through 2012, the National Park Service assumes that 
there would be increased PAH emissions and the Kado Study is relevant. 
Also, a recent study dated 2003 by the Tahoe Regional Planning Agency 
(hereinafter referred to as ``TRPA Study'') compared the concentrations 
of PAH compounds released into the water and found that the two-stroke 
carbureted outboard engine emitted lower PAH levels into the water than 
did the two-stroke direct-injected engine. The four-stroke carbureted 
outboard engine emitted the lowest PAH levels, as well as other 
gasoline-related contaminants into the water (TRPA Study dated 2003; 
CARB). So, while conversion of some carbureted two-stroke engines to 
direct-injection two-stroke engines would result in increased PAH 
emissions, the concurrent conversion to four-stroke

[[Page 55461]]

engines would result in reduced PAH emissions. However, the two-stroke 
carbureted outboard engine emitted higher levels of benzene than the 
two-stroke direct-injected engine model (CARB). PWC engines follow the 
same patterns of emission rates as outboard engines (CARB). The TRPA 
Study confirms other findings regarding emissions into the water and 
does not substantially change National Park Service conclusions 
regarding water quality impacts.
    According to the Kado Study the higher levels of PAHs from two-
stroke direct-injection engines may be due to differences in the 
characteristics of combustion such as temperature, spray location or 
spray pattern of the fuel and oil, timing of fuel delivery, and high 
levels of unburned fuel and oil in the two-stroke direct inject 
engines.
    As shown by the commenter, using Kado data, the combined PAH 
emissions of one direct-injection two-stroke engine and one four-stroke 
engine would be slightly less than the PAH emissions of the two 
carbureted two-stroke engines that would be replaced. Therefore, the 
increase or decrease of PAH emissions as carbureted two-stroke engines 
are converted to cleaner engine types would depend on the relative 
numbers of the types of cleaner engines. In addition, in speaking with 
local PWC businesses, the majority of newer PWC models being sold are 
four-stroke engines, not two-stroke direct-injection engines, but no 
specific data is available. The speculation of the mix of engine types 
would not appreciably change National Park Service conclusions 
concerning PAH emissions made in the Final Environmental Impact 
Statement.

Comments Related to Cultural Resources

    53. One commenter stated that the National Park Service identifies 
a potential concern that the ability of PWC operators to access remote 
areas of Glen Canyon National Recreation Area unit could intrude on 
traditional tribal activities and make certain cultural sites 
vulnerable to trampling, looting, and vandalism. The analysis does not 
document any instances where these problems have occurred. Nor is there 
any reason to believe that PWC users are more likely to pose these 
concerns than canoeists, kayakers, hikers, or others who might access 
these same areas. Even so, alternative B proposes to prohibit PWC use 
in several areas to protect against potential adverse impacts on these 
resources.
    NPS Response: Navajo practitioners conduct traditional activities 
as individuals, and generally do not share this information with 
others. Almost universally, American Indians are extremely reticent to 
share sensitive information about personal religious activities with 
the public. Out of respect for these traditional beliefs, and in 
keeping with various laws and mandates, the National Park Service does 
not include descriptions of specific traditional activities or their 
locations in a public document. For these reasons, Glen Canyon National 
Recreation Area does not have documentation of specific instances where 
PWC users have intruded on traditional activities by tribal 
practitioners. However, the National Park Service is aware of the 
potential for conflicts with visitor use along the shorelines, 
particularly in more isolated areas. The effects on cultural resources, 
including sacred sites within the recreation area used by Native 
Americans, as a result of nonmotorized use as well as other uses of the 
lake will be assessed under the lake management plan. Even though the 
lake management plan is an element of alternative B, a separate NEPA 
assessment will be prepared to evaluate its effects.
    54. One commenter stated that there is no legitimate reason for 
National Park Service to impose restrictions on PWC users only to 
protect cultural resources and activities from intrusion.
    NPS Response: The plan was not designed to determine if PWC caused 
more damage to park resources than other boats or users, but rather, to 
determine if PWC use was consistent with Glen Canyon National 
Recreation Area's enabling legislation and management goals and 
objectives. An analysis was done on the management of PWC and with 
completion of the Final Environmental Impact Statement, the National 
Park Service is taking action to adopt special regulations to manage 
PWC use at Glen Canyon.

Comments Related to Visitor Use and Experience

    55. One commenter requested that the Final Environmental Impact 
Statement include a map that identifies the Natural Zone and the 
Recreation and Resource Utilization Zone in the analysis area, and 
include additional detail regarding the purposes and objectives for 
these two zones. The impact of each alternative on whether the Natural 
Zone qualifies for wilderness designation, as recommended in the last 
Management Plan, should be described in the document.
    NPS Response: A map of Glen Canyon National Recreation Area's 
management zones has been added to the ``Affected Environment'' chapter 
of Final Environmental Impact Statement, along with an additional 
description of the zones' objectives. All of the Federal lands in the 
natural zone were proposed as wilderness in the General Management Plan 
in 1972.
    56. Some commenters cited user conflicts. Specific incidents 
included conflicts between PWC users and kayakers, fishermen, and 
hikers. A few PWC supporters said these conflicts resulted from a 
minority of inconsiderate PWC operators and that we should regulate 
inappropriate behavior or enforce existing regulations rather than 
prohibit PWC use.
    NPS Response: The modified preferred alternative B will restrict 
PWC use on portions of the Escalante, Colorado, Dirty Devil, and San 
Juan Rivers and implement a flat-wake zone for PWC on a portion of the 
Escalante River. Based on the best available information, the National 
Park Service will implement these restrictions on the rivers to reduce 
visitor conflicts with river rafters, fishermen, and backcountry 
hikers; promote visitor enjoyment; and ensure visitor safety.
    The modified preferred alternative B also provides for a three-year 
pilot study to further evaluate PWC use areas. Potential restrictions 
of PWC use in other locations of the recreation area will be evaluated 
at that time. The purpose of the pilot study and a description of how 
it will be implemented are provided in appendix C in the Draft and 
Final Environmental Impact Statements.
    57. One commenter stated that the overall conclusions in the Draft 
Environmental Impact Statement and in the proposed rule regarding 
visitor perceptions of PWC were inconsistent with the data presented in 
the University of Minnesota study used in the analysis.
    NPS Response: Conclusions of the Minnesota study (James 2000) were 
based on their professional analysis and statistical limitation of the 
data they collected. During the summer of 2000, the University of 
Minnesota conducted three on-site visitor surveys at Glen Canyon 
National Recreation Area. This survey was followed by a mail-back 
questionnaire sent to visitors after their trip to the recreation area. 
The study focused on visitors using the resources, as well as looking 
specifically at the population of visitors who used and also those who 
did not use PWC during their visit to the area. The analysis of impacts 
on visitor use and experience presented in the Draft and Final 
Environmental Impact Statements was based on the Minnesota study 
visitor's

[[Page 55462]]

perceptions of problems or conflicts with PWC.

Comments Related to Wildlife and Wildlife Habitat

    58. 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. Rodgers 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: The wildlife impact analysis completed for the Glen 
Canyon NRA considered a large body of technical information, including 
research findings of Dr. Rodgers, that addressed, observed and tested 
effects of PWC and other motorized watercraft use on various fish and 
wildlife species and to wildlife in general. Some of the available 
literature discussed effects to some wildlife species and not to other 
groups. Some of the available literature noted that PWC use was less or 
no more disruptive than other types of motorized or man-powered 
watercraft. A common theme in many of the research findings was that 
much of the wildlife effect depended on a complex of other 
environmental variables not just the type of watercraft. The NPS 
considered all these findings in conducting an objective and balanced 
impact analysis. The literature results were used as appropriate within 
the physical and ecological conditions that prevail at Glen Canyon. It 
was concluded in the final EIS that alternatives A and B would have 
negligible to minor adverse affects on wildlife and wildlife habitat 
from noise, high-speed operations, habitat disturbance and exposure to 
fuel constituents. Continued PWC operation under these alternatives 
would not result in an impairment of wildlife, fish, or supporting 
habitat resources. These conclusions regarding wildlife impacts that 
were based on scientific literature and based on the environmental 
conditions present in Glen Canyon NRA are believed to be accurate and 
complete.

Comments Related to Shoreline and Submerged Aquatic Vegetation

    59. One commenter noted that the EIS identified the issue of 
potential concern that the beaching and landing of PWC could result in 
the trampling of shoreline vegetation. The comment refers to several 
other phrases in the text that discuss the affected environment and the 
indistinguishable cumulative effects of PWC use and other watercraft on 
shoreline or submerged aquatic vegetation.
    NPS Response: Shoreline vegetation has been historically subjected 
to many sources of disturbance since the recreation area was created. 
The most important has been repeated inundation and desiccation as the 
reservoir level rises and falls. Other sources that have affected and 
would continue to affect shoreline vegetation include PWC operators, 
other watercraft operators and passengers, general visitors and 
livestock in some areas. The NPS believes that the incremental effect 
from PWC users on shoreline vegetation conditions would be 
indistinguishable from other visitor-induced effects. Foot traffic from 
all visitor activities would occur on shorelines and lake beaches in 
accessible shoreline areas. Past, current and future PWC use would not 
produce any noticeable effect on submerged aquatic, riparian and 
wetland vegetation. Therefore, cumulative effects would be negligible.

Comments Related to Natural Soundscape

    60. Several commenters noted that PWC were being singled out for 
restrictions without regard to other sources of noise, including 
``muscle'' boats, other motorboats, loud music, parties, and illegal 
fireworks.
    NPS Response: The Final Environmental Impact Statement and final 
rule were not designed to determine if PWC caused more environmental 
damage to park resources than other boats, but rather, to determine if 
PWC use was consistent with Glen Canyon National Recreation Area's 
enabling legislation and management goals and objectives of the park. 
Depending upon the results of the Final Environmental Impact Statement, 
the National Park Service could, as it has in this rulemaking, take 
action to adopt special regulations to manage PWC use at Glen Canyon, 
or could have chosen to discontinue PWC use. The alternatives listed 
were based upon the best information available. Other resource impacts 
and issues will be addressed through other planning documents and 
regulations.
    61. Several commenters expressed a concern that the analysis did 
not address the fluctuations of sound that PWC make compared to other 
motorized watercraft. Specifically, the distinctive pitch variation may 
have different effects on humans and other species and is more annoying 
or irritating than the more constant sounds associated with other 
boats.
    NPS Response: The pitch variations associated with PWC and the 
noise differences between PWC and motorboats are acknowledged under the 
``Soundscapes'' section in the ``Affected Environment'' chapter of the 
Draft and Final Environmental Impact Statements. PWC noise does 
fluctuate as a result of typical operation, but the noise intensity 
levels are not typically in violation of the National Park Service 
noise standard. The suggestion that pitch variations may have different 
effects on humans and other species, and that the variation is more 
annoying or irritating, was incorporated in the analysis and 
contributes to the ``minor to moderate'' adverse impact determination.
    62. One commenter stated that wilderness management in the Natural 
Zone is ignored even though it is stated as a goal in Glen Canyon 
National Recreation Area's general management plan. They further state 
that only alternative C which bans PWC correlates satisfactorily with 
the values of wilderness management.
    NPS Response: The noise impacts on the Natural Zone were determined 
to be adverse and ranged from minor to moderate within a mile of the 
shoreline (refer to the noise analysis in the ``Soundscapes'' section 
of the ``Environmental Consequences'' chapter).
    The Final Environmental Impact Statement states that PWC sound 
impacts wilderness values of solitude and natural quiet because sound 
carries beyond the shoreline and is heard at some distance within the 
Natural Zone. The sound is heard up to a maximum of 2 miles from the 
source over a flat surface, but the topography surrounding Lake Powell 
is not flat. Assuming that a natural barrier to the sound would exist 
where there is an elevation change of 50 feet (approximate height of a 
five-story building), approximately 16,000 acres would be affected 
(between 3,700 feet to 3,750 feet in elevation). This equals 2.3% of 
the Natural Zone (668,670 acres). Time of day and season of use would 
also reduce the level of noise in the Natural Zone because the noise 
would not be continuous, would be encountered only during daylight 
hours, and would be minimal between October and May.
    Although noise does intrude on desired wilderness and Natural Zone 
soundscape values, the inescapable juxtaposition of the Natural Zone 
and the Recreation and Resource Utilization Zone make it impossible to 
avoid all adverse impacts on the Natural Zone/

[[Page 55463]]

wilderness soundscape. As shown above, only 2.3% of the Natural Zone's 
area would be affected, and those soundscape effects would be offset 
even further by diurnal/nocturnal and seasonal reductions in watercraft 
noise.
    There is a potential conflict in the management objectives between 
the Recreation and Resource Utilization Zone and the Natural Zone that 
is extremely difficult to avoid because the zones are adjacent to each 
other. However, the percentage of the Natural Zone that is adversely 
affected by PWC noise, as shown in the preceding paragraph, is small. 
The noise generated by watercraft in the Recreation and Resource 
Utilization Zone, including PWC, is consistent with Glen Canyon 
National Recreation Area's enabling legislation ``to provide for public 
outdoor recreation use and enjoyment of Lake Powell and the lands 
adjacent thereto.''
    The modified preferred alternative B provides for a three-year 
pilot study to further evaluate PWC use areas. Potential restrictions 
of PWC use in other locations of the recreation area will be evaluated 
during the pilot study. The purpose of the pilot study and a 
description of how it will be implemented are provided in appendix C of 
the Final EIS. In addition, the preparation of a lake management plan, 
which was included in all alternatives in the Final Environmental 
Impact Statement, will provide an opportunity for the National Park 
Service to further evaluate impacts of all lake users on all resources, 
including the soundscape.
    63. One commenter asked why if noise generated by watercraft is 
consistent with the park purposes is soundscape being addressed as a 
reason to manage PWC.
    NPS Response: The ``Purpose of and Need for Action'' chapter in the 
Draft and Final Environmental Impact Statements states that the overall 
objective for EIS and rulemaking is to evaluate a range of alternatives 
and strategies to determine the appropriateness of PWC use at Glen 
Canyon NRA with the goal of ensuring protection of recreational and 
resource values. This objective was derived from the enabling 
legislation for Glen Canyon National Recreation Area. Soundscape was 
one of the issues that was evaluated in order to determine 
appropriateness of PWC use. As a result of the evaluation, the NPS 
determined that no additional measures are required, beyond exist NPS 
noise regulations, to manage noise from PWC.
    64. One commenter stated that since 1998, the PWC companies have 
reduced engine sound levels by up to 70% and have introduced design 
changes to not only reduce engine sound intensity, but to reduce the 
sound pitch that some claim to be annoying.
    NPS Response: The National Park Service appreciates the information 
regarding new noise suppression designs being used by some PWC 
manufacturers. The Final Environmental Impact Statement refers to the 
potential noise abatement factors and acknowledges that future designs 
may mitigate sound impacts (see the ``Affected Environment'' chapter).
    65. One commenter stated that the ``promise'' of quieter PWC by the 
PWC companies is no reason to approve PWC use at the recreation area.
    NPS Response: The National Park Service has recognized that some 
PWC manufacturers are developing new noise suppression designs for new 
PWC. The industry's conversion to the four-stroke technology and the 
use of resonators is reducing the noise. Manufacturers are using noise 
absorbing foam and rubber padding in the construction of PWC. 
Consequently, the newer technology used in PWC construction is 
addressing noise concerns. The Final Environmental Impact Statement 
refers to the potential noise abatement factors and acknowledges that 
future designs may mitigate sound impacts (see the ``Affected 
Environment'' chapter).
    The Final Environmental Impact Statement and final rule were 
designed to determine if PWC use was consistent with Glen Canyon 
National Recreation Area's enabling legislation and management goals 
and objectives. With completion of the Final Environmental Impact 
Statement, the National Park Service could, as it has in this 
rulemaking, take action to adopt special regulations to manage PWC use 
at Glen Canyon, or could have chosen to discontinue PWC use.

Drafting Information

    The primary authors of this regulation were Suzy Schulman, 
Environmental Specialist, Glen Canyon NRA; Brian Wright, Outdoor 
Recreation Planner, Glen Canyon NRA; Sarah Bransom, Environmental 
Quality Division, National Park Service; Kym Hall, Regulations Program 
Manager, National Park Service, and Michael Tiernan, DOI Solicitor's 
Office.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and has 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, environment, public health or 
safety, or State, local, or tribal governments or communities. This 
determination is based upon the findings in a report prepared by the 
National Park Service entitled ``Economic Analysis of PWC Regulations 
in Glen Canyon National Recreation Area'' (Law Engineering and 
Environmental Services, Inc., 2002). The focus of this study was to 
document the impact of this rule on a variety of small entities 
including PWC dealerships and repair shops, PWC rental business, and 
other local businesses that provide services to PWC users. The Economic 
Analysis may be viewed on the Glen Canyon Web site at http://www.nps.gov/glca.
    This rule will continue PWC use with restrictions in some narrow 
canyon areas and other management restrictions. Some localized 
ecosystem protection and noise reduction benefits are anticipated. 
However, because the vast majority of Lake Powell, including the most 
popular areas for PWC use, will remain open to PWC use under this rule, 
the NPS anticipates no significant effects on the visiting public or 
local businesses.
    If this rule was not instituted, PWC use would be completely banned 
under the no-action alternative, affecting the approximately 40 percent 
of visitors that use PWC. Maintaining PWC use in GLCA under this rule 
will result in an estimated increase in producer surplus (a measure 
closely related to business profit) in the local community of between 
$1,232,800 and $12,304,300 annually relative to baseline conditions 
(where PWC would be banned). The economic effect on the members of the 
visiting public that do not use PWC was not quantified due to limited 
data availability; however, the 40 percent of visitors that currently 
use PWC will regain all the consumer surplus value they receive from 
PWC use in GLCA. Consumer surplus gains to PWC users of continued 
access to GLCA are estimated to be between $9,806,600 and $20,166,400 
annually. Beneficiaries of the no-action alternative would include the 
remaining portion of visitors that do not use PWC. Additionally, 
``nonusers'' may significantly benefit from knowing that resources in 
the National Recreation Area will be better protected into the future.
    Over a ten-year horizon, the present value of the gains is 
estimated to be $86.9 million to $155.3 million in consumer surplus and 
$10.9 million to

[[Page 55464]]

$94.7 million in producer surplus using a 3 percent discount rate. This 
suggests the total gain in consumer and producer surplus from this rule 
relative to the baseline is $97.8 million to $250.0 million using a 3 
percent discount rate. Losses to non-PWC users have not been quantified 
due to insufficient data. A 3 percent discount rate is widely 
recognized in the economics literature and Federal rulemakings as an 
appropriate discount rate for valuing natural amenities and other non-
market resources and services. When discounted at 7 percent per year 
(OMB Circular A-94), the present value of the gain in consumer surplus 
is estimated to be $68.5 million to $122.5 million and the present 
value of the gain in producer surplus is estimated to be $8.6 million 
to $74.7 million. In this case, the total gain in consumer and producer 
surplus relative to baseline conditions is $77.1 million to $197.2 
million, not including unquantified losses to non-PWC users.
    This analysis clearly indicates that this rule is expected to avoid 
significant losses to local business. However, the net effect of this 
rule on the visiting public and nonusers has not been quantitatively 
determined.
    (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 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 raises novel legal or policy issues. This rule is 
among the first of its kind 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 
requirements 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.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
based on a report entitled Economic Analysis of PWC Regulations in Glen 
Canyon National Recreation Area (Law Engineering and Environmental 
Services, Inc. 2002). The focus of this study was to document the 
impact of this rule on two types of small entities, PWC dealerships and 
PWC rental outlets. This report found that there was no potential loss 
for these types of businesses as a result of this rule since PWC use 
would remain substantially the same as it has been over the last 
several years.

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. The National Park Service 
has completed an economic analysis to make this determination. This 
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 a significant adverse effect 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 imposes no 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

    The National Park Service has analyzed this rule in accordance with 
the criteria of the National Environmental Policy Act and has prepared 
an Environmental Impact Statement (EIS). The draft EIS was made 
available for public review and comment on September 13, 2002, (67 FR 
58071), and the Final Environmental Impact Statement (FEIS) was made 
available to the public on May 16, 2003 (68 FR 26645). A copy of the 
FEIS is available on the Glen Canyon National Recreation Area Web page 
at http://www.nps.gov/glca/plan.htm, at regional libraries, or a copy 
may be obtained by contacting the Superintendent, Glen Canyon National 
Recreation Area.

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, the National Park Service has 
evaluated potential effects on federally recognized Indian tribes and 
have determined that there are no potential effects.
    During May 2002, the NPS consulted with tribes in the surrounding 
area in writing and/or in person about the development of this rule and 
the supporting Environmental Impact Statement. Those tribes include the 
Hopi, Navajo, San Juan Southern Paiute, and Kaibab Paiute Tribes as 
well as several tribal historic preservation programs and cultural and 
natural resources divisions of the tribes. None of the tribes have 
expressed concern or dissent with the planning process or development 
of the alternatives for the EIS or this rule.

Administrative Procedure Act

    This final rule is effective upon publication in the Federal 
Register. In accordance with the Administrative

[[Page 55465]]

Procedure Act, specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 
7.70(g), 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 Glen 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 (68 FR 2466) on January 17, 
2003, 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 Glen Canyon National Recreation Area final 
rule.
    The Attorney General's Manual on the Administrative Procedure Act 
explained that the ``reason for this exception would appear to be that 
the persons affected by such rules are benefited by them and therefore 
need no time to conform their conduct so as to avoid the legal 
consequences of violation. The fact that an interested person may 
object to such issuance, amendment, or repeal of a rule does not change 
the character of the rule as being one ``granting or recognizing 
exemption or relieving restriction,'' thereby exempting it from the 
thirty-day requirement.'' This rule is within the scope of the 
exception as described by the Attorney General's Manual and the 30-day 
waiting period should be waived. See also, Independent U.S. Tanker 
Owners Committee v. Skinner, 884 F.2d 587 (DC Cir. 1989). In this case, 
the court found that paragraph (d)(1) is a statutory exception that 
applies automatically for substantive rules that relieves a restriction 
and does not require any justification to be made by the agency. ``In 
sum, the good cause exception must be invoked and justified; the 
paragraph (d)(1) exception applies automatically'' (884 F.2d at 591). 
The facts are that Glen Canyon National Recreation Area is promulgating 
this special regulation for the purpose of relieving the restriction, 
prohibition of PWC use, imposed by 36 CFR 3.24 and therefore, the 
paragraph (d)(1) exception applies to this rule.
    In accordance with the Administrative Procedure Act, this rule is 
also excepted from the 30-day waiting period by the ``good cause'' 
exception in 5 U.S.C. 553(d)(3) and is effective upon publication in 
the Federal Register. As discussed above, the purpose of this rule is 
to comply with 36 CFR 3.24 requirement for authorizing PWC use in park 
areas by promulgating a special regulation. ``The legislative history 
of the APA reveals that the purpose for deferring the effectiveness of 
a rule under section 553(d) was ``to afford persons affected a 
reasonable time to prepare for the effective date of a rule or rules or 
to take other action which the issuance may prompt.'' S. Rep. No. 752, 
79th Cong., 1st Sess. 15 (1946); H.R. Rep. No. 1980, 79th Cong., 2d 
Sess. 25 (1946).'' United States v. Gavrilovic, 551 F.2d 1099, 1104 
(8th Cir. 1977). The persons affected by this rule are PWC users and 
delaying the implementation of this rule for 30 days will not benefit 
them; but instead will be counterproductive by denying them, for an 
additional 30 days, the benefits of the rule.
    The rule has been developed in full compliance with section 553(b) 
and (c) rulemaking requirements. The proposed rule was published in the 
Federal Register and provided 60 days for public comments. The public 
comments received are summarized and analyzed in this document. Also as 
part of this process, the park prepared a Draft Environmental Impact 
Statement (DEIS) that was made available to the public on September 13, 
2002, for comment. The DEIS evaluated the various alternatives for 
managing PWC use at Glen Canyon, including an alternative with no PWC 
use. After reviewing the comments to the DEIS the NPS modified the 
proposed alternatives and responded to comments in a Final 
Environmental Impact Statement that was made available to the public on 
May 16, 2003. This rule will now implement the preferred alternative B 
with certain modifications as a result of the public comments received 
in response to the proposed rule and the DEIS.
    ``In determining whether to invoke the exception, the agency is 
`required to balance the necessity for immediate implementation against 
principles of fundamental fairness which require that all affected 
persons be afforded a reasonable time to prepare for the effective date 
of its ruling.''' The Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 
752 (10th Cir. 1987). The primary purpose of the 30-day waiting period 
is to provide the public with time to prepare for the changes caused by 
the new rule. This rule authorizes the continued use of PWCs at Glen 
Canyon National Recreation Area. Because of the two-year grace period 
established by the March 2000 Final Rule and the temporary lifting of 
the PWC ban for the summer of 2003, PWC use has been allowed to 
continue at Glen Canyon despite the prohibition in 36 CFR 3.24. 
Providing a 30-day waiting period would not benefit the parties 
affected by this rule, instead there is good cause for making this rule 
effective upon publication so that affected parties can continue using 
PWCs.

List of Subjects in 36 CFR Part 7

    District of Columbia, National parks, Reporting and recordkeeping 
requirements.

0
In consideration of the foregoing, the National Park Service amends 36 
CFR part 7 as follows:

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

0
1. The authority citation for part 7 continues to read as follows:

    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).

0
2. Section 7.70 is amended by adding paragraph (g) to read as follows:


Sec.  7.70  Glen Canyon National Recreation Area.

* * * * *
    (g) PWC. (1) A person may launch and operate a PWC in park waters 
or beach a PWC on park lands, except in the following areas:
    (i) On the Colorado River between Glen Canyon Dam and the 
downstream river boundary of Glen Canyon National Recreation Area where 
it adjoins Grand Canyon National Park.
    (ii) On the Colorado River upstream of Sheep Canyon.
    (iii) On the San Juan River upstream of Clay Hills pullout.
    (iv) On the Escalante River upstream of Coyote Creek.
    (v) On the Dirty Devil River upstream of Utah Highway 95 bridge.
    (2) A person may not operate a PWC at speed in excess of flat wake 
speed on the Escalante River from Cow Canyon to Coyote Creek.
    (3) After December 31, 2012, no one may operate a PWC that does not 
meet the 2006 emission standards set by EPA for the manufacturing of 
two-stroke engines. A person operating a PWC that meets the EPA 2006 
emission standards through the use of direct injection two-stroke or 
four-stroke engines, or the

[[Page 55466]]

equivalent thereof, is not subject to this prohibition and will be 
allowed to operate as described in this section.
    (4) 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: September 9, 2003.
Craig Manson,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 03-24363 Filed 9-25-03; 8:45 am]
BILLING CODE 4310-70-P