[Federal Register Volume 69, Number 103 (Thursday, May 27, 2004)]
[Rules and Regulations]
[Pages 30216-30224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12054]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC97


Lake Meredith 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 Lake Meredith National Recreation Area, Texas. This rule 
implements the provisions of the National Park Service (NPS) general 
regulations authorizing park units to allow the use of PWC by 
promulgating a special regulation. Individual parks determine whether 
PWC use is appropriate based on an evaluation of that park's enabling 
legislation, resources and values, other visitor uses, and overall 
management objectives.

DATES: Effective Date: This rule is effective May 27, 2004.

ADDRESSES: Mail inquiries to the Superintendent, Lake Meredith National 
Recreation Area, P.O. Box 1460, Fritch, TX 79036-1460, Fax: (806) 857-
2319, e-mail: [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:

Notice of Proposed Rulemaking and Environmental Assessment

    On December 12, 2003, the National Park Service published a Notice 
of Proposed Rulemaking for the operation of PWC at Lake Meredith 
National Recreation Area (68 FR 17292). The proposed rule for PWC use 
was based on alternative B in the Environmental Assessment (EA) 
prepared by NPS for Lake Meredith NRA. The EA was available for public 
review and comment from March 10 to April 9, 2003, and the NPRM was 
available for public comment from December 12, 2003 to February 10, 
2004.
    The purpose of the Environmental Assessment was to evaluate a range 
of alternatives and strategies for the management of PWC use, ensuring 
the protection of park resources and values, and offering recreational 
opportunities as provided for in the National Recreation Area's 
enabling legislation, purpose, mission, and goals. The analysis assumed 
an alternative would be implemented beginning in 2002 and considered a 
10-year use period, from 2002 to 2012. The Environmental Assessment 
evaluated three alternatives concerning the use of PWC at Lake Meredith 
National Recreation Area. Alternative A allows PWC use under a special 
regulation that includes certain current provisions of the 
Superintendent's Compendium. Alternative B allows continued PWC 
operation similar to alternative A, but use is further restricted to 
reduce conflicts between fishermen and PWC operators in lake areas and 
to protect water resources by designating and marking ``Flat Wake'' 
zones in a number of the canyons. In addition to the two alternatives 
for allowing restricted PWC use, a no-action alternative was considered 
that would continue the prohibition of all PWC use within the National 
Recreation Area. All three alternatives were evaluated with respect to 
PWC impacts on water quality, air quality, soundscapes, wildlife and 
wildlife habitat, threatened, endangered, or special concern species, 
shoreline vegetation, visitor experience, visitor conflict and safety, 
and cultural resources.
    Based on the Environmental Assessment, NPS determined that 
alternative B is the park's preferred alternative for managing PWC use. 
Alternative B is also considered the environmentally preferred 
alternative.

Summary of Comments

    The proposed rule was published for public comment on December 12, 
2003 (68 FR 69358), with the comment period lasting until February 10, 
2004. The National Park Service received 2,870 timely written responses 
regarding the proposed regulation. Of the responses, 2,512 were form 
letters in 7 separate formats, 345 were signatures on a petition, and 
14 were separate letters. Of the 14 separate letters, 9 were from 
individuals, 4 from organizations, and 1 from a public agency. 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. Several commenters, including Bluewater Network and the American 
Canoe Association, stated that the Environmental Assessment failed to 
use the best data available and picked Alternative B without adequate 
scientific justification.
    NPS Response: None of the alternatives evaluated in the 
Environmental Assessment resulted in significant adverse or beneficial 
impacts. The NPS chose the preferred alternative, continued PWC use 
with restrictions, because it appears to meet the needs of most park 
visitors while continuing to protect the environment. If the EA process 
would have discovered significant impacts from PWC use at LAMR than an 
EIS would have been prepared or a different course of action would have 
been pursued. To the contrary the environmental impacts discovered 
during the EA process revealed no significant reasons for not moving 
forward with the preferred alternative. A summary of the NPS rulemaking 
and associated personal watercraft litigation is provided in chapter 1, 
Purpose of and Need for Action, Background, of the EA. NPS believes it 
has complied with the National Environmental Policy Act (NEPA) and has 
properly assessed the impacts of personal watercraft on the resources 
of Lake Meredith National

[[Page 30217]]

Recreation Area using the best available data for the analysis. This 
analysis was done for every applicable impact topic with the best 
available data, 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 NEPA, and the Finding of No Significant Impact (FONSI) 
demonstrates that decision has been adequately analyzed and explained.
    2. Several commenters stated that allowing PWC use with additional 
restrictions violates the park's enabling legislation and NPS mandate 
to protect resources from harm.
    NPS Response: NPS analysis in the EA shows that PWC use will not 
violate the Lake Meredith National Recreation Area's enabling 
legislation or NPS' mandate to protect resources in the Organic Act. 
The authorizing legislation for Lake Meredith was considered when 
developing alternatives for the Environmental Assessment. The objective 
of the Environmental Assessment, as described in the ``Purpose and 
Need'' Chapter, was derived from the enabling legislation for Lake 
Meredith. As further stated in that chapter, a special analysis on the 
management of personal watercraft was also provided under each 
alternative to meet the terms of the settlement agreement between the 
Bluewater Network and the National Park Service. As required by NPS 
policies, the impacts associated with personal watercraft and other 
recreational uses are evaluated under each alternative to determine the 
adverse impacts, including the potential for impairment to park 
resources. The recreation area's enabling legislation also states that 
the ``Secretary shall administer Lake Meredith National Recreation Area 
for general purposes of public outdoor recreation.'' The recreation 
area was established by Congress ``to provide for public outdoor 
recreation use and enjoyment of the lands and waters associated with 
Lake Meredith in the State of Texas and to protect the scenic, 
scientific, cultural, and other values contributing to the public 
enjoyment of such lands and waters.'' The NPS must allow for 
appropriate public uses of the national recreation area while 
effectively managing park resources. The EA did not determine that any 
of the resource areas would be adversely impacted by the preferred 
alternative.
    3. One commenter stated that in preparing the Environmental 
Assessment, the NPS did not adequately consult with and seek the 
expertise of various agencies, which appears to violate the NPS' PWC 
regulations.
    NPS Response: The final PWC regulation published by the NPS in 
March 2000 indicates that we intend to seek the expertise of the U.S. 
Environmental Protection Agency (EPA), OSHA and other relevant agencies 
and literature when deciding whether to allow continued PWC use in 
units of the National Park System. The Environmental Assessment 
references EPA and OSHA regulations and studies throughout. For 
example, the EPA Web site was visited and LAMR information was 
retrieved and studied. EPA rated LAMR as a ``IWI'', 1 on the 
watershed health scale (``better quality/less vulnerability''). In 
addition, we sent out 123 letters 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), 
U.S. Coast Guard, Department of Energy/Pantex Environmental Division, 
U.S. Department of the Army Corps of Engineers, Quaachita National 
Forest, numerous Indian tribes, several Audubon groups, Biodiversity 
Legal Foundation, Environmental Defense, Lake Meredith Aquatic and 
Wildlife Museum, Marina at Lake Meredith, several museums, Natural 
Resources Conservation Service, Texas Nature Conservancy, Wilderness 
Society, State and Federal representatives and senators, Canadian River 
Municipal Water Authority, Hutchison County Historical Commission, 
Groundwater Conservation District No. 3, Chamber of Commerce, 
Archeologists from Intermountain Support Office, Texas Archeology 
Society, Texas General Land Office, Palo Duro State Park. 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.
    4. Several commenters stated that the decision violates the Organic 
Act and will result in the impairment of resources.
    NPS Response: The ``Summary of Laws and Policies'' section in the 
``Environmental Consequences'' chapter of the PWC Use EA summarizes the 
three overarching laws that guide the National Park Service in making 
decisions concerning protection of park resources. These laws, as well 
as others, are also reflected in the NPS Management Policies. An 
explanation of how the Park Service applied these laws and policies to 
analyze the effects of personal watercraft on Lake Meredith National 
Recreation Area resources and values can be found under ``Impairment 
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 Assessments establish 
thresholds or indicators of magnitude of impact. An impact approaching 
a ``major'' level of intensity is one indication that impairment could 
result. For each impact topic, when the intensity approached ``major,'' 
the park would consider mitigation measures to reduce the potential for 
``major'' impacts, thus reducing the potential for impairment.
    The National Park Service has determined that under the preferred 
alternative, Alternative B, there will be no negative impacts on park 
resources or values.

Comments Related to Water Quality

    5. Several commenters stated that research indicated that direct-
injection 2-stroke engines are dirtier than 4-stroke engines.
    NPS Response: It is agreed that two-stroke carbureted and two-
stroke DI engines generally emit greater amounts of pollutants than 
four-stroke engines. However, 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.
    6. 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 Lake 
Meredith and collection of

[[Page 30218]]

these data was beyond the scope of the EA, therefore 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 inorganic 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 Alternative A and B, impacts 
to water quality in Lake Meredith 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 75 and is the most severe of the five 
potential impact categories. The other impact categories starting with 
the least severe are: negligible, minor, moderate, and major.
    7. One commenter stated that the analysis represents an outdated 
look at potential emissions from an overstated PWC population of 
conventional 2-stroke engines, and underestimated the accelerating 
changeover to 4-stroke and newer 2-stroke engines. The net effect is 
that the analysis overestimates potential PWC hydrocarbon emissions, 
including benzene and PAHs, to the water in Lake Meredith.
    NPS Response: NPS agrees. The NPS water quality impact assessment 
utilized conservative (protective) assumptions where site-specific data 
were missing or incomplete. For some variables such as the number of 
PWC (total of 70), this number was based on the number of vessels 
expected on a high-use day. It can be considered a conservative 
estimate, but it is not ``unrealistic'' since it was based on State of 
Texas and Lake Meredith National Recreation Area data. Despite these 
conservative estimates, impacts to water quality from personal 
watercraft are judged to be negligible for all alternatives evaluated. 
Cumulative impacts from personal watercraft and other outboard 
motorized vessels are expected to be negligible to moderate. 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 NPS used emission reduction estimates from the EPA (1996) that 
are readily available for public review and not confidential sales 
information. Because the Sierra Research analysis is based on ``* * 
*confidential sales information* * *'', the NPS cannot evaluate the 
assumptions in the Sierra Research analysis. The NPS did not ``ignore'' 
the manufacturers' confidential sales data.
    Use of the Sierra information, if verified, could have potentially 
reduced the calculated water quality threshold volumes. However, impact 
estimates for personal watercraft are already negligible (EA pages 34 
and 75-80), using the impact threshold descriptions provided on page 75 
of the EA. Impacts to water quality from other motorized vessels are 
potentially more significant than those due to personal watercraft. 
Therefore, cumulative impacts from personal watercraft and other 
motorized vessels, which are negligible to moderate, would not be 
reduced substantially by the inclusion of the Sierra emission reduction 
projections for personal watercraft.
    8. One commenter stated that the water quality analysis uses 
assumptions that result in overestimation of potential PWC hydrocarbon 
emission to the water in Lake Meredith. For example benzo(a)pyrene 
concentrations in gasoline range from 0.19 to 2.8 mg/kg but the NPS 
chooses the highest figure for the analysis.
    NPS Response: As stated in responses to earlier comments, 
protection of water quality in the national recreation area was 
addressed in a conservative evaluation. Therefore, the use of 2.8 mg/kg 
as an estimated concentration of benzo(a)pyrene in gasoline is a 
reasonable assumption that is in range of possible concentrations. Even 
with this and other conservative assumptions, impacts from PWC were 
determined to be negligible. Evaporation of benzene was not factored 
into the discussion because water quality impacts already were 
negligible and could not be reduced to a lower impact threshold.

Comments Related to Air Quality

    9. 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 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 personal watercraft refueling at the 
reservoir and the location of refueling (inside or outside of the 
airshed).
    10. One commenter stated that the use of air quality data from 
Amarillo, 45 miles from Lake Meredith, in the analysis does not provide 
the best representation of air quality at the lake.
    NPS Response: The Amarillo 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

[[Page 30219]]

EPA air emission model, which used estimated PWC and vessel usage at 
Lake Meredith NRA as inputs.
    11. 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 
these data show a greater rate of emissions reductions than the 
assumptions in the 1996 Rule and in the EPA's NONROAD Model, which was 
used to estimate emissions. However, the 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.

Comments Related to Soundscapes

    12. One commenter stated that continued PWC use in the Lake 
Meredith NRA will not result in sound emissions that exceed the 
applicable federal or state noise abatement standards, and 
technological innovations by the PWC companies will continue to result 
in substantial sound reductions.
    NPS Response: The EA provides an analysis of impacts of personal 
watercraft on many aspects of the environment. The level of impact 
predicted for many of the resources or values included in the 
assessment is negligible to minor, or minimal impact. However, in some 
cases moderate or potentially major impacts are predicted, and this is 
based on the specific resource or value affected and the impact 
threshold levels used in the analysis.
    13. 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, short-term adverse 
impacts, and that impact levels would be related to number and type 
(age) of PWC and sensitivity of park 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 research that shows these technologies do not reduce 
engine noise levels to some extent. 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.
    Additionally, the average operating life of a PWC is 5 to 10 years, 
depending upon the source. As a result, it is expected that the 
majority of existing PWC will be replaced with quieter, new technology 
PWC in the near future.

Comments Related to Wildlife, Wildlife Habitat, and Threatened or 
Endangered Species

    14. One commenter stated that the analysis lacked site-specific 
data for impacts to wildlife, fish, and threatened and endangered 
species at Lake Meredith.
    NPS Response: The EA did not include site specific studies 
regarding potential effects of PWC use on wildlife species at Lake 
Meredith 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.
    15. 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 vessels 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 motorized vessels. In addition to this 
conclusion, Dr. Rodgers recommends that buffer zones be established, 
creating minimum distances between vessels (personal watercraft and 
outboard motorized vessels) and nesting and foraging waterbirds. In 
Lake Meredith National Recreation Area, a 50-foot wide area along the 
shoreline is already established under the Texas Water Safety Act where 
the use of personal 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.
    16. One commenter stated that wildlife biologists are finding that 
PWC cause lasting impacts to 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 engine. The 
preferred alternative provides for further protection of wildlife in 
the recreation area. Establishing new flat wake zones under the 
preferred alternative (Alternative B) would reduce impacts to aquatic 
and shoreline species by reducing the discharge of fuel components into 
the water. These

[[Page 30220]]

reductions should indirectly benefit wildlife by reducing some of the 
contaminant loading of surface waters.
    PAH toxicity to fish and wildlife species is a complicated topic 
because PAHs consists 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 Related to Shoreline/Submerged Aquatic Vegetation

    17. One commenter stated that there has been no documentation of 
any adverse effects to shoreline vegetation from PWC use.
    NPS Response: The NPS recognizes that scientists do not agree on 
the potential for impacts to aquatic vegetation from personal 
watercraft. However, personal watercraft, because of their design, can 
potentially operate in shallower water than conventional outboard 
motorized vessels, and it is not possible to say if all operators fully 
adhere to manufacturer's recommendations. Impacts to shoreline 
vegetation are expected to be negligible.

Comments Related to Visitor Experience, Visitor Conflict, and Safety

    18. Several commenters stated that the NPS analysis downplayed the 
threat PWC pose to the visiting public.
    NPS Response: According to the National Marine Manufacturers 
Association, PWC manufacturers have sold roughly 1.2 million personal 
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 PWCs having reports of problems 
associated with fires/explosions. As far as the recall campaigns 
conducted by Kawasaki and Bombardier, the problems that were associated 
with fuel tanks were fixed. Kawasaki conducted a recall for potentially 
defective fuel filler necks and fuel tank outlet gaskets on 23,579 
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.
    19. One commenter stated that the presence of PWC monopolizes the 
recreational environment and adversely impacts the wide range of 
diverse uses favored by a majority of visitors and therefore allowing 
PWC use is not the best course of action.
    NPS Response: PWC account for approximately 20% of all watercraft 
used on Lake Meredith each year. Additionally, during 2001 PWC were 
approximately 2% of total Lake Meredith NRA visitation. None of the 
alternatives evaluated in the Environmental Assessment resulted in 
substantial adverse or beneficial impacts. The NPS chose the preferred 
alternative, Continued PWC Use with Restrictions, because it appeared 
to meet the needs of most park visitors while continuing to protect the 
environment.
    20. One commenter stated that Alternative B would require more 
permanent staff and vessels to enforce the new restrictions.
    NPS Response: The NPS believes that operation of PWC in the 
recreation area would not require more staff than that required for 
increased monitoring of all vessels because (1) the number of PWC 
operating within the recreation area is small in comparison to the 
number of other motorized vessels, (2) the location of PWC operation is 
separated from most other visitors (excluding motorized vessels) and 
(3) the increased patrols necessary to monitor all boating traffic 
would increase the observed presence of policing such that all 
infractions would likely decrease.
    21. One commenter stated that the conclusion that PWC use poses a 
health and safety risk ``primarily to the operators'' themselves is 
mistaken and the analysis does not adequately assess the safety threat 
posed to park visitors by PWC use.
    NPS Response: Incidents involving vessels of all types, including 
personal watercraft, are reported to and logged by National Park 
Service staff. A very small proportion of incidents on the lake are 
estimated to go unreported. The accident data for the five-year period 
of 1997 through 2001 displays a consistent pattern and differs from 
nationally reported results for all vessels. In the ``Visitor Conflicts 
and Visitor Safety'' section of the ``Affected Environment'' chapter, 
it is reported that personal watercraft represent 20 percent of the 
vessels on the lake but did not exceed 3 percent of all vessel 
accidents over the five year time period.
    22. Several commenters stated that there is no basis to impose flat 
wake restrictions on PWC only, as proposed in Alternative B, and doing 
so would endanger all boaters. For these reasons, any flat wake zones 
established under the special regulation in the 11 back coves (or any 
other areas) should be applied to all motorized vessels, not just PWC.
    NPS Response: The proposed flat wake zones under Alternative B 
would apply to all motorized vessels. The description of Alternative B 
on p. 24 does not indicate that the flat wake zone applies only to PWC. 
However, vessels other than PWC are regulated through other mechanisms 
and are therefore not addressed in the language for this regulation.
    23. 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: Incidents involving vessels of all types, including 
personal watercraft, are reported to and logged by

[[Page 30221]]

National Park Service staff. A very small proportion of incidents on 
the lake are estimated to go unreported. The accident data for the 
five-year period of 1997 through 2001 displays a consistent pattern and 
differs from nationally reported results for all vessels. In the 
``Visitor Conflicts and Visitor Safety'' section of the ``Affected 
Environment'' chapter, it is reported that personal watercraft 
represent 20 percent of the vessels on the lake but did not exceed 3 
percent of all vessel accidents over the five year time period.

Comments Related to Cultural Resources

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

Comments Related to Socioeconomics

    25. Two commenters commented that the analysis did not adequately 
assess socioeconomic impacts on the regional economy.
    NPS Response: 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 socioeconomic study did not 
address the future potential costs of environmental damage. The 
preferred alternative does not include an elimination of PWC, but 
rather restrictions on area of use and speed. If a decrease in PWC use 
occurred due to the proposed restrictions, there could be some 
reductions in PWC-related revenues. However, given the low levels of 
PWC use at Lake Meredith and the fact that a total ban is not proposed, 
impacts on local and regional economics would not result in significant 
negative socioeconomic impacts.

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 Impacts

    Alternative A would permit PWC use as previously managed within the 
park before the November 2002 ban, while Alternative B would permit PWC 
use with additional management strategies to reduce user conflicts and 
to protect water resources. Alternative B is the preferred alternative, 
and includes no-wake zones, PWC fueling requirements, and water quality 
monitoring. 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 
Lake Meredith 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 $3,520,980 and $4,676,120, 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 $137,580 and $1,012,360. 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 Lake Meredith National Recreation Area, 2003-2012 (2001 $) a
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         PWC users                         Businesses                                         Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alternative A:
    Discounted at 3% \b\...........         $4,676,120  $185,180 to $1,012,360.........................  $4,861,300 to $5,688,480.
    Discounted at 7%\b\............          3,706,280  $146,770 to $802,390...........................  $3,853,050 to $4,508,670.
Alternative B:
    Discounted at 3% \b\...........          4,442,330  $173,590 to $941,220...........................  $4,615,920 to $5,383,550.
    Discounted 7% \b\..............          3,520,980  $137,580 to $746,010...........................  $3,658,560 to $4,266,990.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits were rounded to the nearest ten dollars, and may not sum to the indicated totals due to independent rounding.
\b\ Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount rate when analyzing impacts to private
  consumption.


Table 2.--Amortized Total Benefits per Year for PWC Use in Lake Meredith
              National Recreation Area, 2003-2012 (2001 $)
------------------------------------------------------------------------
                                 Amortized total benefits per year \a\
------------------------------------------------------------------------
Alternative A:
    Discounted at 3% \b\.....  $569,893 to $666,863.
    Discounted at 7% \b\.....  $548,588 to $641,933.
Alternative B:
    Discounted at 3% \b\.....  $541,127 to $631,116.
    Discounted at 7% \b\.....  $520,897 to $607,523.
------------------------------------------------------------------------
\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.


[[Page 30222]]

    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 
Lake Meredith National Recreation Area, non-PWC uses include boating, 
canoeing, fishing, and hiking. Additionally, the public could incur 
costs associated with impacts to aesthetics, ecosystem protection, 
human health and safety, congestion, nonuse values, and enforcement. 
However, these costs could not be quantified because of a lack of 
available data. Nevertheless, the magnitude of costs associated with 
PWC use would likely be greatest under Alternative A, and lower for 
Alternative B due to increasingly stringent restrictions on PWC use.
    Because the costs of Alternatives A and B could not be quantified, 
the net benefits associated with those alternatives (benefits minus 
costs) also could not be quantified. However, from an economic 
perspective, the selection of Alternative B as the preferred 
alternative was considered reasonable even though the quantified 
benefits are somewhat smaller than under Alternative A. That is because 
the costs associated with non-PWC use, aesthetics, ecosystem 
protection, human health and safety, congestion, and nonuse values 
would likely be greater under Alternative A than under Alternative B. 
Given that the quantified benefits of Alternatives A and B were 
similar, quantification of the costs could reasonably result in 
Alternative B having the greatest level of net benefits.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and has not been reviewed 
by the Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The National Park Service has completed the report 
``Economic Analysis of Management Alternatives for Personal Watercraft 
in Lake Meredith National Recreation Area'' (MACTEC Engineering and 
Consulting, Inc.) dated April 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 not raise novel legal or policy issues. This 
rule is one of the special regulations being issued for managing PWC 
use in National Park Units. The National Park Service published general 
regulations (36 CFR 3.24) in March 2000, requiring individual park 
areas to adopt special regulations to authorize PWC use. The 
implementation of the requirement of the general regulation continues 
to generate interest from the public concerning the overall effect of 
authorizing PWC use and National Park Service policy and park 
management but is not a significant controversy for this park.

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 Lake Meredith 
National Recreation Area'' (MACTEC Engineering and Consulting, Inc. 
April 2004). The focus of this study was to document the impact of this 
rule on ten PWC related businesses in the vicinity of Lake Meredith 
that may be affected by any restriction of PWC use, including PWC 
dealerships, a PWC rental shop, and convenience stores offering PWC 
storage and other boating related services. This report found that the 
potential loss for these businesses as a result of this rule would be 
minimal, as PWC users account for a very small fraction of economic 
activity in the region.

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 rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    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 March 10 to April 9, 2003. Additionally, a Finding 
of No Significant Impact (FONSI) was completed and signed on May 21, 
2004.

[[Page 30223]]

A copy of the EA and the FONSI is available by contacting the 
Superintendent, Lake Meredith National Recreation Area, P.O. Box 1460, 
Fritch, TX 79036, or by downloading it from the Internet at http://www.nps.gov/lamr.

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 have evaluated potential 
effects on federally recognized Indian tribes and have determined that 
there are no potential effects.
    During the consultation process in late 2002, the NPS consulted 
with the tribes that claim some affiliation with Lake Meredith National 
Recreation Area, in writing about the development of this rule and the 
supporting Environmental Assessment. Those Tribes include the Wichita 
and Affiliated Tribes; Kiowa Indian Tribe of Oklahoma; Comanche Indian 
Tribe, Oklahoma; Cheyenne-Arapaho Tribe, Oklahoma; Caddo Indian Tribe 
of Oklahoma; Jicarilla Apache Tribe, NM; Mescalero Apache Tribe, NM; 
Apache Tribe of Oklahoma; and, the Fort Sill Apache Tribe of Oklahoma. 
To date no comments have been received from any of the Native American 
Tribes.

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 Lake Meredith 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 69358) on December 
12, 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 Lake Meredith 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

    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 DC Code 8-137 (1981) and DC Code 40-721 (1981).

0
2. Section 7.57 is amended by revising the section heading and adding 
paragraph (h) to read as follows:


Sec.  7.57  Lake Meredith National Recreation Area.

* * * * *
    (h) Personal watercraft (PWC). (1) PWC may operate on Lake Meredith 
except in the following closed areas: stilling basin below Sanford Dam, 
within 750 feet of the Sanford Dam intake tower, and on the waters of 
the Canadian River.
    (2) PWC may operate on Lake Meredith under the following 
conditions:
    (i) Fueling of PWC is prohibited on the lake, except at the marina 
fuel dock with an attendant providing the fuel service, or onshore and 
out of the water.
    (ii) Carrying of fuel in an external or portable container onboard 
a PWC is prohibited.
    (iii) PWC may only be launched at designated launch sites 
established by the Superintendent in accordance with 36 CFR 1.5 and 
1.7.
    (iv) PWC may not operate at greater than flat wake speed in the 
following designated areas: North Turkey Creek, Bugbee Canyon, North 
Canyon, North Cove, South Canyon, Sexy Canyon, Amphitheater Canyon, the 
coves between day markers 9 and 11, Fritch Canyon, Short Creek, Evans 
Canyon and Canal Canyon. Flat wake areas are designated by buoys marked 
with ``flat wake'' or other similar markings. The location of those 
buoys may be adjusted by the Superintendent based on reservoir water 
levels.
    (3) 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.


[[Page 30224]]


    Dated: May 21, 2004.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12054 Filed 5-26-04; 8:45 am]
BILLING CODE 4310-3A-P