[Federal Register Volume 69, Number 103 (Thursday, May 27, 2004)]
[Rules and Regulations]
[Pages 30206-30216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12053]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD00


Amistad National Recreation Area, Personal Watercraft 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 Amistad National Recreation Area, Texas. This rule 
implements the provisions of the National Park Service (NPS) general 
regulations authorizing park areas to allow the use of PWC by 
promulgating a special regulation. The NPS Management Policies 2001 
directs individual parks to determine whether PWC use is appropriate 
for a specific park area based on an evaluation of that area's enabling 
legislation, resources and values, other visitor uses, and overall 
management objectives.

EFFECTIVE DATE: This rule is effective May 27, 2004.

ADDRESSES: Mail inquiries to the Superintendent, Amistad National 
Recreation Area, HRC 3 Box 5J, Del Rio, Texas 78840 or e-mail to 
[email protected].

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

Personal Watercraft Regulation

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

Description of Amistad National Recreation Area

    Amistad National Recreation Area lies along the United States-
Mexico border near Del Rio, Texas. The unit consists of 57,292 acres of 
land and water and is a man-made reservoir resulting from the 
construction of a dam at the confluence of Devils River and the Rio 
Grande. The reservoir is 1,117 feet above sea level at the normal 
conservation level, and the park boundary continues 83 miles northwest 
up the Rio Grande, 25 miles north up the Devils River, and 14 miles 
north up the Pecos River. The park boundary varies but is generally at 
the elevation mark of 1,144.3 feet above mean sea level, and the lake 
level fluctuates in relation to this. The international boundary 
between the United States and Mexico falls in the middle of the Rio 
Grande River. The International Boundary and Water Commission has 
placed buoys in the center of the channel for the first 28 miles but 
the reservoir is otherwise unmarked. The Mexico side of the reservoir 
does not have any protected status, thus the NPS does not generally 
consult with Mexican officials on matters such as boating management in 
a formal sense.
    Amistad is home to a rich archeological record and world-class rock 
art. Within or immediately adjacent to park boundaries are four 
archeological districts and one site listed on the National Register of 
Historical Places.
    Amistad National Recreation Area supports a wide variety of boating 
activities throughout the year, including PWC use, powerboating, 
waterskiing, houseboating, boat fishing, sightseeing by vessel, 
sailboating, sailboarding, canoeing, and kayaking. Amistad receives 
over 1,000,000 visitors a year and issues approximately 5,000 lake use 
permits annually.

Purpose of Amistad National Recreation Area

    The purpose of Amistad National Recreation Area is to provide 
visitors and neighbors with opportunities and resources for safe, high-
quality public outdoor recreation and use of Lake Amistad; to develop 
and maintain facilities necessary for the care and accommodation of 
visitors; and to support the concepts of stewardship and protection of 
resources and environmental sustainability by practicing and 
interpreting their application in a unit of the national park system.

[[Page 30207]]

Significance of Amistad National Recreation Area

    According to Amistad's 2001-2005 strategic plan, the primary 
significance of Amistad National Recreation Area can be summarized as: 
(1) Offering diverse water-based recreational opportunities, especially 
fishing; (2) interpreting exceptional examples of Lower Pecos 
archeology and rock art and; (3) commemorating a water conservation 
partnership between the United States and Mexico.

Authority and Jurisdiction

    Under the National Park Service's Organic Act of 1916 (Organic Act) 
(16 U.S.C. 1 et seq.) Congress granted the NPS broad authority to 
regulate the use of the Federal areas known as national parks. In 
addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the 
Secretary of the Interior, to ``make and publish such rules and 
regulations as he may deem necessary or proper for the use and 
management of the parks * * *''
    16 U.S.C. 1a-1 states, ``The authorization of activities shall be 
conducted in light of the high public value and integrity of the 
National Park System and shall not be exercised in derogation of the 
values and purposes for which these various areas have been established 
* * *''
    NPS's regulatory authority over waters subject to the jurisdiction 
of the United States, including navigable waters and areas within their 
ordinary reach--as with the United States Coast Guard--is based upon 
the Commerce Clause of the U.S. Constitution. Additionally, NPS's 
regulatory authority over non-navigable waters administered by the NPS, 
is derived from the Property Clause. In regard to the NPS, Congress in 
1976 directed the NPS to ``promulgate and enforce regulations 
concerning boating and other activities on or relating to waters within 
areas of the National Park System, including waters subject to the 
jurisdiction of the United States * * *'' (16 U.S.C. 1a-2(h)). In 1996 
the NPS published a final rule (61 FR 35136, July 5, 1996) amending 36 
CFR 1.2(a)(3) to clarify its authority to regulate activities within 
the National Park System boundaries occurring on waters subject to the 
jurisdiction of the United States.

PWC Use at Amistad National Recreation Area

    The park began regularly documenting PWC use on July 4, 1992, but 
the earliest record is from March 1989, when a violation notice was 
issued to an operator for reckless and negligent behavior near a swim 
beach. PWC use became more common between 1990-91, and in May 2001 park 
staff began collecting more specific PWC use data. The highest use 
generally occurs in summer from Friday through Sunday, and in 2001 
ranged from as low as 1 PWC per day up to 35 per day. Park staff 
believes that PWC use is increasing at approximately 1.5% per year.
    Data collected during 2001 and 2002 show that PWC users are a 
consistent part of the total boating population of the lake, and 
holidays show the highest amount of use. The highest PWC-use weekday 
was Wednesday, July 4, 2001 (a holiday), when 33 PWC trailers were 
observed parked at boat ramp parking lots throughout the recreation 
area. On that same day, 88 non-PWC boat trailers were observed in the 
same parking lots.
    The highest use for a non-holiday weekend occurred on Saturday, 
June 23, 2001, when 26 PWC trailers were observed in parking lots 
throughout the recreation area, compared to 270 non-PWC boat trailers 
in the same parking lots. Visitors were attracted by the 12 largemouth 
black bass tournaments taking place at the lake that day and the 
pleasant weather conditions (bass tournaments occur every weekend 
during the summer). The highest holiday weekend use day was Sunday, May 
26, 2002, when 38 PWC trailers (and 296 non-PWC boat trailers) were 
observed at launch ramps.
    On busy summer weekends, PWC use can comprise between 8% and 20% of 
total boating activity. On summer weekdays this percentage tends to 
increase due to fewer out-of-town bass tournament fishermen on the 
lake. PWC use on summer weekdays can comprise between 19% and 40% of 
total boating activity in the evenings after 6:30 p.m., when local PWC 
owners visit the lake after work.
    PWC use occurs primarily between May and September, with April and 
October also showing steady visitation. Weekday PWC users are primarily 
local residents who arrive after work, while weekend users come from 
areas farther away. PWC users are usually on the water all day on 
weekends. Park staff has indicated that PWC users generally operate for 
two to three hours on weekday evenings, and from four to eight hours on 
weekends. The increased amount of time in the water can be attributed 
to users taking turns riding one craft.
    PWC operators have been observed traveling throughout the lake, 
either singly, in pairs, in small groups, or in association with a 
motorized vessel or houseboat. Within Amistad National Recreation Area, 
PWC use has been allowed wherever motorized vessels have had access. 
This includes the arm of the Rio Grande, the Devils River, San Pedro 
Canyon, and the Pecos River.
    Areas of heaviest PWC use are Devils River north of buoy P and San 
Pedro Canyon east of buoy A. Most of the personal watercraft launching 
from Rough Canyon travel up Devils River. In addition, many personal 
watercraft launching from Diablo East and Spur 454 travel up Devils 
River past buoy P. In contrast, only one or two personal watercraft 
travel up the Rio Grande past buoy 28. No PWC have been seen using the 
Pecos River.
    The San Pedro arm of the lake (at the end of Spur 454) attracts a 
large number of PWC operators because it is one of the few areas where 
bystanders, usually friends and relatives of the PWC operators, can 
drive close to the shoreline to observe PWC activity or take turns 
riding. As a result, this location is one of the primary destinations 
for PWC operators. Another popular destination for PWC operators is the 
Indian Springs area in the upper Devils River section of the lake. 
While en route to Indian Springs, PWC operators tend to either travel 
in a direct line or explore some or all of the coves between their 
launch and destination points.
    People who rent the 56- to 65-foot houseboats from Amistad Lake 
Marina often tow personal watercraft with the houseboat (two or three 
personal watercraft have been observed being towed). The vessels are 
permitted to travel to most areas, so PWC use is dispersed. These 
tagalongs are the only personal watercraft likely to use the upper Rio 
Grande area (north of buoy 28).

Notice of Proposed Rulemaking and Environmental Assessment

    On October 22, 2003, the National Park Service published a Notice 
of Proposed Rulemaking (NPRM) for the operation of PWC at Amistad 
National Recreation Area (NRA) (68 FR 60304). The proposed rule for PWC 
use was based on alternative A in the Environmental Assessment (EA) 
prepared by NPS for Amistad NRA. The EA was available for public review 
and comment from April 3 to May 3, 2003, and the NPRM was available for 
public comment from October 22 to December 22, 2003.
    The purpose of the environmental assessment was to evaluate a range 
of alternatives and strategies for the management of PWC use at Amistad 
to ensure the protection of park resources and values while offering 
recreational opportunities as provided for in the National Recreation 
Area's enabling

[[Page 30208]]

legislation, purpose, mission, and goals. The analysis assumed 
alternatives would be implemented beginning in 2002 and considered a 
10-year period, from 2002 to 2012.
    The environmental assessment evaluated three alternatives 
concerning the use of personal watercraft at Amistad National 
Recreation Area. Alternative A allows PWC use under an NPS special 
regulation in accordance with past park practices, and State 
regulations. That is, after the effective date of a final rule, PWC use 
would be the same as it was before November 7, 2002 when the park 
closed to PWC use under the service-wide regulations at 36 CFR 3.24. 
Alternative B continues PWC use under a special regulation, but 
specific limits and use areas would be defined. The no action 
alternative eliminates PWC use entirely within this national park 
system unit.
    Based on the environmental analysis prepared for PWC use at Amistad 
National Recreation Area, alternative A is the preferred alternative 
and is also considered the environmentally preferred alternative 
because it best fulfills park responsibilities as trustee of this 
sensitive habitat; ensure safe, healthful, productive, and 
aesthetically and culturally pleasing surroundings; and attain a wider 
range of beneficial uses of the environment without degradation, risk 
of health or safety, or other undesirable and unintended consequences.

Summary of Comments

    A proposed rule was published for public comment on October 22, 
2003, with the comment period lasting until December 22, 2003. The 
National Park Service received 737 timely written responses regarding 
the proposed regulation. Of the responses, 673 were form letters in 3 
separate formats and 64 were separate letters. Of the 64 separate 
letters, 59 were from individuals, 4 from organizations, and 1 from a 
business. Within the following discussion, the term ``commenter'' 
refers to an individual, organization, or public agency that responded. 
The term ``comments'' refers to statements made by a commenter.

General Comments

    1. One commenter stated that the Environmental Assessment (EA) was 
headed toward a predetermined outcome.
    NPS Response: At no time has there been a predetermined outcome. 
The staff, in the preparation of the Environmental Assessment, went 
through the National Environmental Policy Act (NEPA) process--
identified purpose, need, and objectives for taking action, conducted 
internal scoping, developed proposal, determined the appropriate 
pathway (Categorical Exemption (CE), EA, or Environmental Impact 
Statement (EIS)), and conducted public scoping through mailings.
    If the EA process had discovered significant impacts from PWC use 
at Amistad, then an EIS would have been prepared. In addition, if the 
NPS had concluded that the impacts of PWC use of Amistad NRA were 
inappropriate based on the area's enabling legislation, resources and 
values, other visitor uses, and overall management objectives then NPS 
would have determined a different course of action. To the contrary the 
impacts discovered during the EA process revealed no significant 
reasons for not moving forward with the preferred alternative.
    2. Several commenters stated that PWC should not be singled out for 
analysis and restriction.
    NPS Response: The Environmental Assessment was not designed to 
determine if personal watercraft caused more environmental damage to 
park resources than other vessels, but rather to determine if personal 
watercraft use was consistent with the park's enabling legislation and 
otherwise apprpriate. The NPS evaluated and chose the preferred 
alternative as the best regulatory approach in order to maintain the 
opportunities for various types of recreation while protecting the 
resources of Amistad National Recreation Area.
    3. One commenter stated that the EA failed to use the best 
available data for the analysis and picked Alternative A without 
adequate scientific justification.
    NPS Response: NPS believes it has properly assessed the impacts of 
personal watercraft on the resources of Amistad National Recreation 
Area using the best available data for the analysis. This analysis was 
done for every applicable impact topic consistent with the Council on 
Environmental Quality regulations (40 CFR 1502.22). Where data was 
lacking, best professional judgment prevailed using assumptions and 
extrapolations from scientific literature, other park units where 
personal watercraft are used, and personal observations of park staff.
    The NPS believes that the environmental assessment is in full 
compliance with the National Environmental Policy Act, and the Finding 
of No Significant Impact (FONSI) demonstrates that decision has been 
adequately analyzed and explained.
    4. One commenter stated that the NPS did not consult with and seek 
the expertise of various agencies, which appears to violate the NPS' 
PWC regulations.
    NPS Response: The final PWC regulation published by the NPS in 
March 2000 indicates that we intend to seek the expertise of the U.S. 
Environmental Protection Agency (EPA), OSHA and other relevant agencies 
and literature when deciding whether to allow continued PWC use in 
units of the National Park System. The Environmental Assessment 
references EPA and OSHA regulations and studies throughout. For 
example, the U.S. Environmental Protection Agency (EPA) website and the 
Texas Natural Resources Conservation Commission website were visited 
and Amistad information was retrieved for both air quality and water 
quality.
    Phone calls were made or letters were sent to other Federal, State, 
local agencies including U.S. Fish and Wildlife, Texas Parks and 
Wildlife, Bureau of Reclamation, Texas Commission on Environmental 
Quality (the State agency charged with application of EPA regulations 
in Texas), International Boundary and Water Commission, Texas 
Archeology Society, and the U.S. Coast Guard. The EA was distributed to 
those listed on pages 156-158 of the EA. We feel we have conducted 
consultation as required by various Acts and Executive Orders as well 
as the intent of the March 2000 PWC regulations.
    5. One commenter expressed concern about the use of Federal Aid in 
Sport Fish Restoration Act (FASFRA) funds to construct boat launches 
and facilities.
    NPS Response: There are no provisions within the preferred 
alternative for boat launches and facilities. Landing zones are 
designated by the NPS for access only by PWC users. No FASFRA funds are 
used within the national recreation area to construct boat launches.
    6. Several commenters stated that the decision violates the Organic 
Act and will result in the impairment of resources.
    NPS Response: The ``Summary of Laws and Policies'' section in the 
``Environmental Consequences'' chapter of the PWC Use EA summarizes the 
three overarching laws that guide the National Park Service in making 
decisions concerning protection of park resources. These laws, as well 
as others, are also reflected in the NPS Management Policies. An 
explanation of how the Park Service applied these laws and policies to 
analyze the effects of personal watercraft on Amistad Recreation Area 
resources and values can be found under ``Impairment

[[Page 30209]]

Analysis'' in the ``Methodology'' section.
    An impairment is an impact that, in the professional judgement of 
the NPS manager, would harm the integrity of park resources or values. 
In the analysis used in the PWC Use EA, an impairment to a particular 
park resource or park value must rise to the magnitude of a major 
impact, as defined by factors such as context, duration, and intensity. 
For each resource topic, the Environmental Assessment establishes 
thresholds or indicators of magnitude of impact. An impact approaching 
a ``major'' level of intensity is one indication that impairment could 
result. For each impact topic, when the intensity approached ``major,'' 
the park would consider mitigation measures to reduce the potential for 
``major'' impacts, thus reducing the potential for impairment.
    The PWC Use EA is a proactive measure to protect national 
recreation area resources from harm. The purpose of the EA is to assess 
the impacts of PWC use on identified resources within the recreation 
area boundaries. The National Park Service has determined that under 
the preferred alternative, Alternative A, there will be no negative 
impacts on park resources or values.
    7. One commenter stated that the analysis lack site-specific data 
and there was no adequate justification for why the data was not 
collected.
    NPS Response: NPS believes it has properly assessed the impacts of 
personal watercraft on the resources of Amistad National Recreation 
Area using the best available data for the analysis. This analysis was 
done for every applicable impact topic consistent with the Council on 
Environmental Quality regulations (40 CFR 1502.22). Where data was 
lacking, best professional judgment prevailed using assumptions and 
extrapolations from scientific literature, other park units where 
personal watercraft are used, and personal observations of park staff.
    The NPS believes that the environmental assessment is in full 
compliance with the National Environmental Policy Act, and the Finding 
of No Significant Impact (FONSI) demonstrates that decision has been 
adequately analyzed and explained.
    8. One commenter stated that the analysis did not adequately 
examine impacts to resources outside of Amistad and therefore failed to 
conduct a thorough and accurate analysis of the impact PWC pollution 
has on NRA resources.
    NPS Response: Under NEPA, an Environmental Assessment must look at 
the cumulative impacts of any proposed action in a regional context. On 
page 21 of the EA is a list of past, present and reasonably foreseeable 
future actions used to assess PWC contributions to overall impacts on a 
resource. The EA reviewed regional plans and developed a cumulative 
impacts analysis that is required under NEPA.

Comments Regarding Water Quality

    9. One commenter stated that the analysis represents an outdated 
look at potential emissions from an overstated PWC population of 
conventional two-stroke engines, and underestimated the accelerating 
changeover to 4-stroke and newer two-stroke engines. The net effect is 
that the analysis overestimates potential PWC hydrocarbon emissions, 
including benzene and polycyclic aromatic hydrocarbons (PAHs), to the 
water at Amistad.
    NPS Response: Assumptions regarding PWC use (32 per day in 2002 and 
37 per day in 2012) were based on the average from the 6 highest use 
days May 2001 to July 2002 (EA page 90). The data can be considered a 
conservative estimate, but it is not ``unrealistic'' since it based on 
actual Amistad data. Despite these conservative estimates, impacts to 
water quality from personal watercraft are judged to be negligible to 
moderate for all alternatives evaluated. Cumulative impacts from 
personal watercraft and other outboard motorboats are expected to be 
negligible. If the assumptions used were less than conservative, the 
conclusions could not be considered protective of the environment, 
while still being within the range of expected use.
    The assumption of all personal watercraft using 2-stroke engines in 
2002 is recognized as conservative. It is protective of the environment 
yet follows the emission data available in CARB (1998) and Bluewater 
Network (2001) at the time of preparation of the EA. The emission rate 
of 3 gallons per hour at full throttle is a mid-point between 3 gallons 
in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons 
per hour for an average 2000 model year personal watercraft (Personal 
Watercraft and Bluewater Network 2001). The assumption also is 
reasonable in view of the initiation of production line testing in 2000 
(EPA 1997) and expected full implementation of testing by 2006 (EPA 
1996).
    Reductions in emissions used in the water quality impact assessment 
are in accordance with the overall hydrocarbon emission reduction 
projections published by the EPA (1996). EPA (1996) estimates a 52% 
reduction by personal watercraft by 2010 and a 68% reduction by 2015. 
The 50% reduction in emissions by 2012 (the future date used in the EA) 
is a conservative interpolation of the emission reduction percentages 
and associated years (2010 and 2015) reported by the EPA (1996) but 
with a one-year delay in production line testing (EPA 1997).
    The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in 
the calculations is considered conservative, yet realistic, since it is 
within the range of concentrations measured in gasoline according to 
Gustafson et al. (1997).
    10. One commenter stated that the analysis disregarded or 
overlooked relevant research regarding impacts to water quality from 
PWC use as well as the impact to downstream resources and long term 
site specific water quality data on PWC pollutants.
    NPS Response: The protection of water quality within the national 
recreation area has been addressed in the EA in a conservative 
evaluation of surface water quality impacts. Because site-specific 
water quality data on organic compounds were not available for Amistad 
and collection of these data was beyond the scope of the EA, a 
conservative modeling approach was developed and applied to evaluate 
impacts to water quality from PWC and other motorized vessel use.
    Estimated minimum threshold volumes of water were determined for 
the PWC use areas where concentrations of gasoline constituents 
discharged from personal watercraft and other outboard engines could 
potentially be toxic to aquatic organisms or humans. Using the 
estimated threshold volumes, volumes of the areas being evaluated, PWC 
and other motorized vessel high-use-day loadings of chemicals 
identified as constituents of gasoline, and water quality benchmarks, 
it is possible to identify potentially unacceptable impacts to human 
health or the environment. Chronic water quality benchmarks protective 
of aquatic populations and protective of human health were acquired 
from various sources, including USEPA water quality criteria.
    The EA states that in 2002 under both Alternatives A and B, impacts 
to water quality in Amistad from PWCs on a high-use day would be 
negligible for all chemicals evaluated based on ecological benchmarks 
and human health benchmarks. In 2012, impacts would also be negligible 
based on all ecological and human health benchmarks. ``Impairment'' is 
clearly defined in the EA on page 91 and is the most severe of the five 
potential impact categories. The other impact categories starting

[[Page 30210]]

with the least severe are: negligible, minor, moderate, and major.

Comments Regarding Air Quality

    11. One commenter stated that the analysis failed to mention the 
impact of PWC permeation losses on local air quality.
    NPS Response: Permeation losses of VOCs from personal watercraft 
were not included in the calculation of air quality impacts primarily 
because these losses are insignificant relative to emissions from 
operating watercraft. Using the permeation loss numbers in the comment 
(estimated to be half the total of 7 grams of losses per 24 hours from 
the fuel system), the permeation losses per hour from are orders of 
magnitude less than emissions from operating personal watercraft. 
Therefore, including permeation losses would have no effect on the 
results of the air quality impact analyses. Also, permeation losses 
were not included because of numerous related unknown contributing 
factors such as number of number of personal watercraft refueling at 
the reservoir and the location of refueling (inside or outside of the 
airshed).
    12. One commenter stated that the use of air quality data collected 
at Laredo, 150 miles from the NRA, in the analysis does not provide the 
best representation of air quality at the lake.
    NPS Response: The Laredo monitoring station is the closest air 
quality monitoring site to the study area. The data from this site were 
discussed in the EA; however, these data were not used in the impact 
analysis. The analysis was based on the results of an EPA air emission 
model, which used estimated PWC and vessel usage at Amistad as inputs.
    As stated above, the methodology for assessing air quality impacts 
was based on a combination of annual emission levels and the National 
Ambient Air Quality Standards (NAAQS), which are aimed at protection of 
the public. OSHA and NIOSH standards are intended primarily for workers 
and others exposed to airborne chemicals for specific time periods. The 
OSHA and NIOSH standards are not as suitable for application in the 
context of local and regional analysis of a park or recreational area 
as are the ambient standards, nor are they intended to protect the 
general public from exposure to pollutants in ambient air.
    13. One commenter stated that the analysis failed to consider that 
the PWC companies have been rapidly converting from carbureted two-
stroke engine models to direct injection two-stroke and four-stroke 
engine models and most PWC produced will meet the more stringent 
California Air Resources Board (CARB) standards over time.
    NPS Response: Assumptions regarding PWC use (32 per day in 2002 and 
37 per day in 2012) were based on the average from the 6 highest use 
days May 2001 to July 2002 (EA page 90). The data can be considered a 
conservative estimate, but it is not ``unrealistic'' since it is based 
on actual Amistad data. Despite these conservative estimates, impacts 
to water quality from personal watercraft are judged to be negligible 
to moderate for all alternatives evaluated. Cumulative impacts from 
personal watercraft and other outboard motorboats are expected to be 
negligible. If the assumptions used were less than conservative, the 
conclusions could not be considered protective of the environment, 
while still being within the range of expected use.
    The assumption of all personal watercraft using 2-stroke engines in 
2002 is recognized as conservative. It is protective of the environment 
yet follows the emission data available in CARB (1998) and Bluewater 
Network (2001) at the time of preparation of the EA. The emission rate 
of 3 gallons per hour at full throttle is a mid-point between 3 gallons 
in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons 
per hour for an average 2000 model year personal watercraft (Personal 
Watercraft and Bluewater Network 2001). The assumption also is 
reasonable in view of the initiation of production line testing in 2000 
(EPA 1997) and expected full implementation of testing by 2006 (EPA 
1996).
    Reductions in emissions used in the water quality impact assessment 
are in accordance with the overall hydrocarbon emission reduction 
projections published by the EPA (1996). EPA (1996) estimates a 52% 
reduction by personal watercraft by 2010 and a 68% reduction by 2015. 
The 50% reduction in emissions by 2012 (the future date used in the EA) 
is a conservative interpolation of the emission reduction percentages 
and associated years (2010 and 2015) reported by the EPA (1996) but 
with a one-year delay in production line testing (EPA 1997).
    The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in 
the calculations is considered conservative, yet realistic, since it is 
within the range of concentrations measured in gasoline according to 
Gustafson et al. (1997).
    14. One commenter expressed concern that PWC emissions were 
declining faster than forecasted by the EPA. As the Sierra Report 
documents, in 2002, HC + NOX emissions from the existing 
fleet of PWC were already 23% lower than they were before the EPA 
regulations became effective, and will achieve reductions greater than 
80% by 2012.
    NPS Response: The U.S. EPA's data incorporated into the 1996 Spark 
Ignition Marine Engine rule were used as the basis for the assessment 
of air quality, and not the Sierra Research data. It is agreed that the 
Sierra Research data show a greater rate of emissions reductions than 
the assumptions in the 1996 Rule and in the EPA's NONROAD Model, which 
was used to estimate emissions. However, the Sierra Research report has 
not been used in the EA for reasons of consistency and conformance with 
the model predictions. Most States use the EPA's NONROAD Model for 
estimating emissions from a broad array of mobile sources. To provide 
consistency with State programs and with the methods of analysis used 
for other similar NPS assessments, the NPS has elected not to base its 
analysis on focused research such as the Sierra Report for assessing 
PWC impacts.
    It is agreed that the Sierra Research report also provides data on 
``worst case'' scenarios. However worst case or short-term scenarios 
were not analyzed for air quality impacts in this or other NPS EAs.
    It is agreed that the relative quantity of HC + NOX are 
a very small proportion of the county based emissions and that this 
proportion will continue to be reduced over time. The EA takes this 
finding into consideration in the analysis.
    Improved PWCs may be used in increasing numbers; however the data 
of overall use of this engine type nationwide is not well established. 
For consistency and conformity in approach, the NPS has elected to rely 
on the assumptions in the 1996 S.I Engine Rule which are consistent 
with the widely used NONROAD emissions estimation Model. The outcome is 
that estimated emissions from combusted fuel may be in the conservative 
range, if compared to actual emissions.
    15. Several commenters stated that research indicated that direct-
injection two-stroke engines are dirtier than four-stroke engines.
    NPS Response: It is agreed that two-stroke carbureted and two-
stroke DI engines generally emit greater amounts of pollutants than 
four-stroke engines. Only 4 of the 20 PAHs included in the analyses 
were detected in water: Naphthalene, 2-methylnaphthalene, fluorene, and 
acenaphthylene. The discussion of toxicity of PAHs in the comment must 
be from another (unreferenced) document since this

[[Page 30211]]

discussion was not found in CARB (2001). It is agreed that some 
pollutants (BTEX and formaldehyde) were reported by CARB in the test 
tanks after 24 hours at approximately 50% the concentrations seen 
immediately following the test. No results for PAH concentrations after 
24 hours were seen in the CARB (2001) results, but a discussion of 
sampling/analyses of PAHs in the six environmental compartments was 
presented.
    EPA NONROAD model factors differ from those of CARB. As a result of 
the EPA rule requiring the manufacturing of cleaner PWC engines, the 
existing carbureted two-stroke PWC will, over time, be replaced with 
either two-stroke direct injection or 4-stroke PWCs and both are less-
polluting engines. This replacement, with the anticipated resultant 
improvement in air quality, is parallel to that experienced in urban 
environments as the automobile fleet becomes cleaner over time.
    16. One commenter stated that the use of the study by Kado, et. al. 
to suggest that the changeover from two-stroke carbureted to two-stroke 
direct injection engines may increase emissions of polycyclic aromatic 
hydrocarbons (``PAH'') is in error.
    NPS Response: The criteria for analysis of impacts from PWC to 
human health are based on the National Ambient Air Quality Standards 
(NAAQSs) for criteria pollutants, as established by the U.S. 
Environmental Protection Agency (EPA) under the Clean Air Act, and on 
criteria pollutant annual emission levels. This methodology was 
selected to assess air quality impacts for all NPS EAs to promote 
regional and national consistency, and identify areas of potential 
ambient standard exceedances. PAHs are not assessed specifically as 
they are not a criteria pollutant. However, they are indirectly 
included as a subset of Total Hydrocarbons (THC), which are assessed 
because they are the focus of the EPA's emissions standards directed at 
manufacturers of spark ignition marine gasoline engines (see 61 FR 
52088; October 4, 1996). Neither peak exposure levels nor NIOSH nor 
OSHA standards are included as criteria for analyzing air quality 
related impacts, except where short-term exposure is included in a 
NAAQS.
    As stated above, the methodology for assessing air quality impacts 
was based on a combination of annual emission levels and the NAAQSs, 
which are aimed at protection of the public. OSHA and NIOSH standards 
are intended primarily for workers and others exposed to airborne 
chemicals for specific time periods. The OSHA and NIOSH standards are 
not as suitable for application in the context of local and regional 
analysis of a park or recreational area as are the ambient standards, 
nor are they intended to protect the general public from exposure to 
pollutants in ambient air.
    The ``Kado Study'' (Kado et al. 2000) presented the outboard engine 
air quality portion of a larger study described in Outboard Engine and 
Personal Watercraft Emissions to Air and Water: A Laboratory Study 
(CARB 2001). In the CARB report, results from both outboards and 
personal watercraft (two-stroke and 4-stroke) were reported. The 
general pattern of emissions to air and water shown in CARB (2001) was 
two-stroke carbureted outboards and personal watercraft having the 
highest emissions, and 4-stroke outboard and personal watercraft having 
the lowest emissions. The only substantive exception to this pattern 
was in NOX emissions to air--two-stroke carbureted outboards 
and personal watercraft had the lowest NOX emissions, while 
the 4-stroke outboard had the highest emissions. Therefore, the pattern 
of emissions for outboards is generally applicable to personal 
watercraft and applicable to outboards directly under the cumulative 
impacts evaluations.
    We agree with the technical statement and summation that adverse 
health risk to the public would be unlikely from exposure. The 
methodology for assessing air quality impacts is based on a combination 
of annual emission levels and the NAAQSs, which are aimed at protection 
of the public. OSHA and NIOSH standards are intended primarily for 
workers and others exposed to airborne chemicals for specific time 
periods. The OSHA and NIOSH standards are not as suitable for 
application in the context of local and regional analysis of a park or 
recreational area as are the ambient standards, nor are they intended 
to protect the general public from exposure to pollutants in ambient 
air.

Comments Regarding Soundscapes

    17. One commenter stated that continued PWC use in the Amistad NRA 
will not result in sound emissions that exceed the applicable Federal 
or State noise abatement standards and technological innovations by the 
PWC companies will continue to result in substantial noise reductions.
    NPS Response: The NPS concurs that on-going and future improvements 
in engine technology and design would likely further reduce the noise 
emitted from PWC. However, given the ambient noise levels in the 
recreation area, it is unlikely that the improved technology could 
reduce all cumulative impacts beyond minor to moderate throughout the 
recreation area.
    18. One commenter stated that there is no evidence that PWC noise 
adversely affects aquatic fauna or animals.
    NPS Response: Typically PWC exhaust below or at the air/water 
transition areas, not above the water. Sound transmitted through the 
water is not expected to have more than negligible adverse impacts on 
fish (page 118 of the EA), and the EA does not state the PWC noise 
adversely affects underwater fauna.
    19. One commenter stated that the NPS places too much hope in new 
technologies significantly reducing PWC noise, since there is little 
possibility that the existing fleet of more than 1.1 million machines 
(most of which are powered by conventional two-stroke engines) will be 
retooled to reduce noise.
    NPS Response: The analysis of the preferred alternative states that 
noise from PWC would continue to have minor to moderate, temporary 
adverse impacts, and that impact levels would be related to the number 
of PWC and sensitivity of other visitors. This recognizes that noise 
will occur and will bother some visitors, but site-specific modeling 
was not needed to make this assessment. The availability of noise 
reduction technologies is also growing, and we are not aware of any 
scientific studies that show these technologies do not reduce engine 
noise levels. Also, the analysis did not rely heavily on any noise 
reduction technology. It recognizes that the noise from the operation 
of PWC will always vary, depending on the speed, manner of use, and 
wave action present.
    Although PWC use does occur throughout the lake, it is concentrated 
more in certain areas, and this is noted in the soundscapes impact 
analysis that follows the introductory statements and assumptions 
listed on page 109 of the EA. The analysis of impacts states that ``The 
distribution of personal watercraft during peak summer days would range 
between 16 to 18 at Diablo East, 7 to 8 at Rough Canyon, 5 to 6 at Spur 
454, 3 to 4 at South Winds Marina, and 1 to 2 at Box Canyon.'' The 
analysis did not assume even distribution of PWC and predicted moderate 
impacts from concentrated PWC use in one area.
    The noise annoyance costs in the ``Drowning in Noise'' study are 
recognized in the EA by the moderate impacts predicted, although no 
monetary costs are assigned. These costs would vary by type and 
location of user. Given the intended usage of the higher use marina/
beach areas of Amistad and

[[Page 30212]]

visitor expectations and tolerances at these areas, it is unlikely that 
the PWC noise experienced there would meet the definition of ``major'' 
impact, as defined in the EA.
    20. One commenter stated that there is a big difference in both 
actual noise and perceived noise from PWC than that from other 
motorized watercraft in that PWCs repeatedly leave the water, which 
magnifies noise. This constantly changing noise is often perceived as 
more disturbing than the constant noise from motorized vessels.
    NPS Response: The noise levels of two PWC traveling together would 
be less than the NPS noise limit of 82 dB at 82 feet for all 
alternatives. Given that ambient sound levels range from 34 dBA to 50 
dBA in the recreation area, the operation of PWC 50 feet from shore 
would still have minor adverse affects on the soundscape. In most 
locations natural sounds would prevail and motorized noise would be 
very infrequent or absent.
    21. Two commenters stated that the analysis relied on new 
technologies proposed by the PWC industry for future noise impacts.
    NPS Response: The analysis did not assume that PWC noise would be 
substantially reduced in the future, although it does recognize the 
newer machines, and those powered by 4-stroke engines, are expected to 
be quieter. The analysis does take into account continued noise from 
PWC and an increase in PWC numbers over time.
    22. One commenter stated that the noise associated with PWC is more 
invasive due to the constantly fluctuating noise levels.
    NPS Response: The EA discusses the fluctuating noise aspect of PWC 
operation in the Affected Environment section (page 49 of the EA), 
under ``Responses to PWC Noise,'' and recognizes that the ``irregular 
noise seems to be more annoying than that of a standard motorboat'' to 
visitors. The analysis recognizes that different visitors will have 
different tolerance for PWC noise.
    23. One commenter stated that the analysis did not include Drowning 
in Noise: Noise Costs of PWC in America and therefore the noise 
analysis under represents the actual impacts.
    NPS Response: One of the initial tasks of the Amistad NRA study 
that is discussed in this Environmental Assessment and in previous 
responses was a literature search. Drowning in Noise: Noise Costs of 
Jet Skis in America was one of the many studies reviewed. The reference 
to that study (Komanoff and Shaw 2000) was discussed in the ``Summary 
of Available Research on the Effects of Personal Watercraft'' section 
of the EA.

Comments Regarding Wildlife and Wildlife Habitat

    24. Two commenters stated that the analysis lacked site-specific 
data for impacts to fish, wildlife, and threatened and endangered 
species at Amistad NRA.
    NPS Response: The scope of the EA did not include site specific 
studies regarding potential effects of PWC use on wildlife species at 
Amistad National Recreation Area. Analysis of potential impacts of PWC 
use on wildlife at the national recreation area was based on best 
available data, input from park staff, and the results of analysis 
using that data.
    25. 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 vessels. The 
commenter cites research by Dr. James Rodgers of the Florida Fish and 
Wildlife Conservation Commission, whose studies have shown that PWC are 
no more likely to disturb wildlife than any other form of human 
interaction. PWC posed less of a disturbance than other vessel types. 
Dr. Rodgers' research clearly shows that there is no reason to 
differentiate PWC from motorized boating based on claims on wildlife 
disturbance.
    NPS Response: Based on the documents provided as part of this 
comment, it appears that personal watercraft are no more apt to disturb 
wildlife than are small outboard motorboats. In addition to this 
conclusion, Dr. Rodgers recommends that buffer zones be established, 
creating minimum distances between vessels (personal watercraft and 
outboard motorboats) and nesting and foraging waterbirds. In Amistad, 
under the Texas Water Safety Act, a 50-ft wide area along the shoreline 
is already established where the use of watercraft is restricted to 
flat wake speed only. With this restriction in mind, impacts to 
wildlife and wildlife habitat under all three alternatives were judged 
to be negligible at most locations along the shoreline.
    26. One commenter stated that wildlife biologists are finding that 
PWC cause lasting impacts on fish and wildlife.
    NPS Response: It is anticipated that more combustion-efficient 
engines in personal watercraft will reduce pollutant emissions to air 
and water in the same manner as increased efficiencies in automobile 
engines combined with catalytic converters and other technologies 
decreased the amount and types of automobile exhaust emissions. EPA-
sponsored evaluations of different personal watercraft engine designs 
and emissions concluded that emission reductions would result with 
implementation of the EPA emission standards for marine engines. The 
preferred alternative (Alternative A) provides protection of wildlife 
in the recreation area by prohibiting PWC from landing in areas with 
interior least tern nesting colonies from May 1 through August 31.
    PAH toxicity to fish and wildlife species is a complicated topic 
because PAHs consist of dozens of different chemical compounds, each of 
which has substantially different toxicity characteristics in water, 
sediment, and soils, and toxicity varies dramatically among different 
fish and wildlife species. The ecological toxicity analysis for PAHs 
reported in the Environmental Assessment explains the chemical, 
physical, and biological conditions that were used to conduct the 
assessment of PAH effects to fish species.

Comments Regarding Visitor Use, Experience, and Safety

    27. One commenter stated that the accident data used in the 
analysis was outdated and incorrect because PWC accidents are reported 
more often than other boating accidents.
    NPS Response: The mediating factors described in the comment are 
recognized. However, these factors are unlikely to fully explain the 
large difference in percentages (personal watercraft are only 7.5% of 
registered vessels, yet they are involved in 36% of reported 
accidents). In other words, personal watercraft are 5 times more likely 
to have a reportable accident than are other vessels. This difference 
is even more significant when canoes and kayaks, which are not required 
to be registered but are included in the total number of accidents, are 
considered. Despite these national boating accident statistics, impacts 
of PWC use and visitor conflicts are judged to be negligible relative 
to swimmers and minor impact relative to other motorized vessels at the 
national recreation area.
    28. One commenter stated that the analysis did not adequately 
address PWC fire hazards.
    NPS Response: According to the National Marine Manufacturers 
Association, PWC manufacturers have sold roughly 1.2 million watercraft 
during the last ten years. Out of 1.2 million PWC sold the U.S. Coast 
Guard had only 90 reports of fires/explosions in the years from 1995-
1999. This is less than 1% of PWC vessels having

[[Page 30213]]

reports of problems associated with fires/explosions. As far as the 
recall campaigns conducted by Kawasaki and Bombardier, the problems 
that were associated with fuel tanks were fixed. Kawasaki conducted a 
recall for potentially defective fuel filler necks and fuel tank outlet 
gaskets on 23,579 models from the years 1989 and 1990. The fuel tank 
problems were eliminated in Kawasaki's newer models, and the 1989 and 
1990 models are most likely not in use anymore since life expectancy of 
a PWC is only five to seven years according to PWIA. Bombardier also 
did a recall for its 1993, 1994, and 1995 models to reassess possible 
fuel tank design flaws. However, the number of fuel tanks that had to 
be recalled was a very small percent of the 1993, 1994, and 1995 fleets 
because fuel tank sales only amounted to 2.16% of the total fleet 
during this period (Bombardier Inc.). The replacement fuel tanks 
differed from those installed in the personal watercraft subject to the 
recall in that the replacement tanks had revised filler neck radiuses, 
and the installation procedure now also requires revised torque 
specifications and the fuel system must successfully complete a 
pressure leak test. Bombardier found that the major factor contributing 
to PWC fires/explosions was over-torquing of the gear clamp. Bombardier 
was legally required by the U.S. Coast Guard to fix 9.72% of the 
recalled models. Out of 125,349 recalls, the company repaired 48,370 
units, which was approximately 38% of the total recall, far exceeding 
their legal obligation to repair units with potential problems. Further 
fuel tank and engine problems that could be associated with PWC fires 
has been reduced significantly since the National Marine Manufacturers 
Association set requirements for meeting manufacturing regulations 
established by the U.S. Coast Guard. Many companies even choose to 
participate in the more stringent Certification Program administered by 
the National Marine Manufacturers Association (NMMA). The NMMA verifies 
annually, or whenever a new product is put on the market, vessel model 
lines to determine that they satisfy not only the U.S. Coast Guard 
Regulations but also the more rigorous standards based on those 
established by the American Boat and Yacht Council.
    29. One commenter stated that the analysis did not address impacts 
to other park visitors.
    NPS Response: Adverse impacts of PWC use on other boaters is 
discussed in the EA (page 141 of the EA) under ``PWC Users/Other Boater 
Conflicts,'' The impacts are expected to be minor to moderate adverse 
concentrated in the high use areas.

Comments Related to Cultural Resources

    30. One commenter stated that the analysis refers to a potential 
concern that the ability of PWC operators to access remote areas of the 
park unit might make certain cultural, archeological and ethnographic 
sites vulnerable to looting or vandalism. However, there is no 
indication of any instances where these problems have occurred. Nor is 
there any reason to believe that PWC users are any more likely to pose 
these concerns than other park visitors who might access these same 
areas.
    NPS Response: The EA was focused on the analysis of impacts from 
PWC use. PWC can make it easier to reach some remote upstream areas, 
compared to hiking to these areas, but we agree that the type of 
impacts to cultural resources from any users of remote areas of the 
park would be similar if they can reach these areas.

Comments Regarding Socioeconomics

    31. One commenter stated that the analysis did not adequately 
assess socioeconomic impacts on the regional economy.
    NPS Response: The number of recreational visits at Amistad National 
Recreation Area in calendar year 2000 was 1,234,506. In 2001 the 
recreational visits were 1,097,650, a reduction of 11%. The 
socioeconomic study did not address the future potential costs of 
environmental damage. The study looked at the potential effect that the 
ban would have on the local economy, and the potential effects on 
socio-economically disadvantaged groups. The comment is correct in 
stating that the same level of analysis was not given to the future 
environmental costs.

Changes to the Final Rule

    Based on the preceding comments and responses, the NPS has made no 
changes to the proposed rule language with regard to PWC operations.

Summary of Economic Analysis

    Alternative A would permit PWC use as previously managed within the 
park before the November 2002 ban in accordance with the 
Superintendent's compendium. Alternative A is the preferred 
alternative. Under this alternative, a special regulation would 
reinstate PWC use in Amistad National Recreation Area wherever 
motorized vessels are authorized, which includes PWCs. Alternative B 
would permit PWC use with additional management restrictions on PWC 
users and concessioners. Alternative C is the no-action alternative and 
represents the baseline conditions for this economic analysis. Under 
that alternative, the November 2002 ban would be continued. All 
benefits and costs associated with Alternatives A and B are measured 
relative to that baseline.
    The primary beneficiaries of Alternatives A and B include the 
individuals who would use PWCs within the park and the businesses that 
provide services to PWC users such as rental shops, restaurants, gas 
stations, and hotels. Additional beneficiaries include the individuals 
who use PWCs in areas outside the park where PWC users displaced from 
the park by the ban may have increased their use. Over a ten-year 
horizon from 2003 to 2012, the present value of benefits to PWC users 
is expected to range between $1,394,600 and $1,890,700, depending on 
the alternative analyzed and the discount rate used. The present value 
of benefits to businesses over the same timeframe is expected to range 
between $20,300 and $199,900. These benefit estimates are presented in 
Table 1. The amortized values per year of these benefits over the ten-
year timeframe are presented in Table 2.

    Table 1.--Present Value of Benefits for PWC Use in Amistad National Recreation Area, 2003-2012 (2001 $) a
----------------------------------------------------------------------------------------------------------------
                                       PWC users         Businesses                        Total
----------------------------------------------------------------------------------------------------------------
Alternative A:
    Discounted at 3%\b\...........      $1,890,700  $28,800 to $199,900.  $1,919,500 to $2,090,600
    Discounted at 7%\b\...........      $1,549,600  $23,600 to $163,800.  $1,573,200 to $1,713,400
Alternative B:
    Discounted at 3%\b\...........      $1,701,600  $24,800 to $169,500.  $1,726,400 to $1,871,100

[[Page 30214]]

 
    Discounted at 7%\b\...........      $1,394,600  $20,300 to $138,900.  $1,414,900 to $1,533,500
----------------------------------------------------------------------------------------------------------------
\a\ Benefits were rounded to the nearest hundred dollars, and may not sum to the indicated totals due to
  independent rounding.
\b\ Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount
  rate when analyzing impacts to private consumption.


   Table 2.--Amortized Total Benefits per Year for PWC Use in Amistad
              National Recreation Area, 2003-2012 (2001 $)
------------------------------------------------------------------------
                                    Amortized total benefits per year\a\
------------------------------------------------------------------------
Alternative A:
    Discounted at 3%\b\...........  $225,024 to $245,082.
    Discounted at 7%\b\...........  $223,988 to $243,950.
Alternative B:
    Discounted at 3%\b\...........  $202,387 to $219,350.
    Discounted at 7%\b\...........  $201,450 to $218,336.
------------------------------------------------------------------------
\a\ This is the present value of total benefits reported in Table 1
  amortized over the ten-year analysis timeframe at the indicated
  discount rate.
\b\ Office of Management and Budget Circular A-4 recommends a 7%
  discount rate in general, and a 3% discount rate when analyzing
  impacts to private consumption.

    The primary group that would incur costs under Alternatives A and B 
would be the park visitors who do not use PWCs and whose park 
experiences would be negatively affected by PWC use within the park. At 
Amistad National Recreation Area, non-PWC uses include boating, 
canoeing, fishing, and hiking. Additionally, the public could incur 
costs associated with impacts to aesthetics, ecosystem protection, 
human health and safety, congestion, nonuse values, and enforcement. 
However, these costs could not be quantified because of a lack of 
available data. Nevertheless, the magnitude of costs associated with 
PWC use would likely be greatest under Alternative A, and lower for 
Alternative B due to increasingly stringent restrictions on PWC use.
    Because the costs of Alternatives A and B could not be quantified, 
the net benefits associated with those alternatives (benefits minus 
costs) also could not be quantified. While Alternative A would likely 
impose greater costs than Alternative B, it also would provide greater 
benefits as well. Given that, a quantification of the costs could 
reasonably result in Alternative A having the greatest level of net 
benefits.

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, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The National Park Service has completed the report 
``Economic Analysis of Management Alternatives for Personal Watercraft 
in Amistad National Recreation Area'' (MACTEC Engineering and 
Consulting, Inc. May 2004).
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Actions 
taken under this rule will not interfere with other agencies or local 
government plans, policies or controls. This rule is an agency specific 
rule.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule will have no effects on entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No grants or other forms of monetary supplements are 
involved.
    (4) This rule does raise novel legal or policy issues. This rule is 
one of the special regulations being issued for managing PWC use in 
National Park Units. The National Park Service published general 
regulations (36 CFR 3.24) in March 2000, requiring individual park 
areas to adopt special regulations to authorize PWC use. The 
implementation of the requirement of the general regulation continues 
to generate interest and discussion from the public concerning the 
overall effect of authorizing PWC use and National Park Service policy 
and park management.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rulemaking will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This certification is based on a report entitled ``Economic Analysis of 
Management Alternatives for Personal Watercraft in Amistad National 
Recreation Area'' (MACTEC Engineering and Consulting, Inc., May 2004).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This proposed rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or

[[Page 30215]]

unique effect on State, local or tribal governments or the private 
sector. This rule is an agency specific rule and does not impose any 
other requirements on other agencies, governments, or the private 
sector.

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    The National Park Service has analyzed this rule in accordance with 
the criteria of the National Environmental Policy Act and has prepared 
an Environmental Assessment (EA). The EA was available for public 
review and comment from April 9, 2003 to May 10, 2003. Additionally, a 
Finding of No Significant Impact (FONSI) was completed and signed on 
April 29, 2004. Copies of the environmental assessment and the FONSI 
may be downloaded at http://www.nps.gov/amis/pwc. pdf or obtained at 
park headquarters Monday through Friday, 8 a.m. to 5 p.m., just west of 
Del Rio at 4121 Hwy 90 W. Mail inquiries should be directed to: Amistad 
National Recreation Area, HCR 3 Box 5J, Del Rio, TX 78840, Phone (830) 
775-7491.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential 
effects on federally recognized Indian tribes and have determined that 
there are no potential effects. There are 17 tribes with historical 
ties to the lands of the Amistad NRA. However, none of those tribes 
have any current association with Amistad nor are there any tribes with 
close geographic ties to the area. Since any actions the park proposes 
in this rule are not expected to have any effects on these 17 tribes, 
no consultation has occurred.

Administrative Procedure Act

    This final rule is effective upon publication in the Federal 
Register. In accordance with the Administrative Procedure Act, 
specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.57(h), 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 Amistad 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 60305) on October 22, 
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 Amistad 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 the NPS 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 the 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.

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).


[[Page 30216]]



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2. Add new paragraph (d) to Sec.  7.79 to read as follows:


Sec.  7.79  Amistad Recreation Area.

* * * * *
    (d) Personal Watercraft (PWC).
    (1) PWCs are allowed within Amistad National Recreation Area with 
the following exceptions:
    (i) The following areas are closed to PWC use:
    (A) Hidden Cave Cove (where marked by buoys), located on the Rio 
Grande.
    (B) Painted Canyon (where marked by buoys), located on the Rio 
Grande.
    (C) Seminole Canyon, starting 0.5 miles from the mouth of the Rio 
Grande.
    (D) Government coves at Diablo East and Rough Canyon to include the 
water and shoreline to the top of the ridge/property line.
    (E) All terrestrial cave and karst features.
    (F) The Lower Rio Grande area below Amistad Dam.
    (G) The water area extending 1000 feet out from the concrete 
portion of Amistad Dam.
    (ii) PWC are prohibited from landing on any island posted as 
closed.
    (2) The Superintendent may temporarily limit, restrict or terminate 
access to the areas designated for PWC use after taking into 
consideration public health and safety, natural and cultural resource 
protection, and other management activities and objectives.

    Dated: May 21, 2004.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12053 Filed 5-26-04; 8:45 am]
BILLING CODE 4310-70-P