[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Rules and Regulations]
[Pages 35519-35526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14115]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD01


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

EFFECTIVE DATE: This rule is effective June 25, 2004.

ADDRESSES: Mail inquiries to Superintendent, Lake Roosevelt National 
Recreation Area, 1008 Crest Drive, Coulee Dam, WA 99116 or 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:

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. The regulation established a 2-
year grace period for 21 park units with existing PWC use to consider 
whether PWC use should be allowed.

Description of Lake Roosevelt National Recreation Area

    Lake Roosevelt National Recreation Area was established in eastern 
Washington State in 1946 following the Secretary of the Interior's 
approval of a Tri-Party Agreement among the National Park Service, the 
Bureau of Reclamation, and the Bureau of Indian Affairs. The reservoir 
and related lands were administered as the recreation area under this 
agreement until 1974 when Interior Secretary Rogers C.B. Morton 
directed that the agreement for the management of the lake be expanded 
to include the Confederated Tribes of the Colville Reservation and the 
Spokane Tribe of Indians. Secretary Morton's directive was prompted by 
the Interior Solicitor's opinion that the tribes have exclusive rights 
to hunting, boating, and fishing within those areas of the reservoir 
that are within the boundaries of the two Indian reservations. An 
accord was reached on April 5, 1990, when the Secretary of the Interior 
approved the Lake Roosevelt Cooperative Management Agreement. The 
agreement confirmed and established management authority of the two 
Indian tribes over the portions of Lake Roosevelt and related lands 
within the boundaries of their respective reservations that were 
previously administered as part of the national recreation area. In 
1997, the name of the park was changed from Coulee Dam National 
Recreation Area to Lake Roosevelt National Recreation Area.
    In the Lake Roosevelt Cooperative Management Agreement, Lake 
Roosevelt National Recreation Area is defined as the waters and lands 
managed by the National Park Service. Lake Roosevelt National 
Recreation Area consists of 312 miles of shoreline along the Columbia 
River. The National Park Service administers 47,438 acres of the 
81,389-acre water surface (at full pool), and 12,936 acres of adjacent 
land. The lands of Lake Roosevelt National Recreation Area consist 
primarily of a narrow band of shore above the maximum high water mark 
(1,290 feet), which was originally

[[Page 35520]]

purchased by the Bureau of Reclamation for construction of the 
reservoir. The national recreation area also includes shoreline along 
about 29 miles of the Spokane River Arm of the lake and about 7 miles 
along the Kettle River Arm. Most of the remainder of the shoreline and 
surface area of Lake Roosevelt lies within the reservation boundaries 
of the Spokane Tribe and the Colville Confederated Tribes and is not 
part of the national recreation area. The Bureau of Reclamation retains 
the management of the dam, an area immediately around the dam, and a 
few other locations that are necessary for operating the reservoir.
    The NPS at Lake Roosevelt preserves and protects a rich cultural 
history throughout the park. Nine thousand years of human use of the 
area is evident throughout the park through a variety of archeological 
resources. Historical features such as St. Paul's Mission and Fort 
Spokane attest to a more recent history. The natural features around 
the lake tell the story of the Ice Age Floods that shaped this 
landscape about 13,000 years ago. The recreation area is home to many 
species of wildlife and fish, including bald eagles, peregrine falcons, 
black bear, kokanee salmon and walleye. Ponderosa Pine and Douglas Fir 
are plentiful. Popular types of recreation include fishing, swimming, 
boating, water skiing, picnicking, and camping from vessels and 
vehicles.

Purpose of Lake Roosevelt National Recreation Area

    The purpose and significance statements below are from Lake 
Roosevelt's Strategic Plan (NPS 2000) and General Management Plan (NPS 
2000). Lake Roosevelt National Recreation Area was established for the 
following purposes:
    (1) To provide opportunities for diverse, safe, quality, outdoor 
recreational experiences for the public.
    (2) To preserve, conserve, and protect the integrity of natural, 
cultural, and scenic resources.
    (3) To provide opportunities to enhance public appreciation and 
understanding about the area's significant resources. The Recreation 
Area has no specific enabling legislation and was created under an act 
passed in 1946 authorizing the administration of the areas by the NPS 
for recreational use pursuant to cooperative agreements. [Act of August 
7, 1946, 16 U.S.C. 17j-2(b)].

Significance of Lake Roosevelt National Recreation Area

    The following statements summarize the significance of Lake 
Roosevelt National Recreation Area:
    (1) It offers a wide variety of recreation opportunities in a 
diverse natural setting on a 154-mile-long lake that is bordered by 312 
miles of publicly owned shoreline that is available for public use.
    (2) It contains a large section of the upper Columbia River and a 
record of continuous human occupation dating back more than 9,000 
years.
    (3) It is contained within three distinct geologic provinces--the 
Okanogan Highlands, the Columbia Plateau, and the Kootenay Arc, which 
were sculpted by Ice Age floods.
    The park's mission statement is as follows: As a unit of the 
national park system, Lake Roosevelt National Recreation Area is 
dedicated to conserving unimpaired, the natural and cultural resources 
and recreational and scenic values of Lake Roosevelt for the enjoyment, 
education, and inspiration of this and future generations. The 
recreation area also shares responsibility for advancing a great 
variety of programs designed to help extend the benefits of natural and 
cultural resource conservation and outdoor recreation.

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

PWC Use at Lake Roosevelt National Recreation Area

    A variety of watercraft can be found on Lake Roosevelt during the 
summer season, e.g., ski boats, PWC, runabouts, day cruisers, sailboats 
(some with auxiliary motors), houseboats, and, to a lesser degree, 
canoes, kayaks, and rowboats. Activities on the lake associated with 
boating include sightseeing, water skiing, fishing, swimming, camping, 
picnicking, and sailing. The park estimates that there were over 50,000 
boat launches during the 2001 primary boating season based on the 
launch fees counted at the park. Most boaters reside within 100 miles 
of Lake Roosevelt but others come from cities and communities 
throughout Washington, as well as from Idaho, Oregon and Canada. PWC 
use is estimated at approximately 56 PWC users on a peak use summer day 
in 2002, increasing to an average of 62 PWC users per peak use day by 
2012.
    PWC use began on Lake Roosevelt during the 1980s but did not become 
fairly common until the mid-1990s. PWC are often used as a houseboat 
accessory. Activities undertaken by PWC on Lake Roosevelt include 
running up and down sections of the lake, towing skiers, jumping wakes, 
and general boating activities. Surveys of boat trailers conducted in 
2001 and 2002 estimate the number of PWC to be approximately 4% of all 
boating use at Lake Roosevelt. PWC are allowed to launch, operate, and 
beach from dawn to dusk throughout the national recreation area. The 
primary PWC use season is June through September with some use from 
April through May and October through December, but no use in winter 
months because the weather and water is generally too cold.
    In the past, PWC were regulated as vessels under the 
Superintendent's Compendium and, along with other vessels, were allowed 
in all areas of the lake. The Superintendent's Compendium is 
terminology the NPS uses to describe the authority provided to the 
Superintendent under 36 CFR 1.5 and 1.7. It allows for local, park-
specific regulations for a variety of issues and under specific 
criteria. Before the closure, areas 100 feet around swim beaches, 
marinas, and narrow sections

[[Page 35521]]

of the lake had speed or ``flat-wake'' restrictions applicable to all 
vessels, based on Washington State boating regulations. In addition, 
before the closure, flat-wake zones on the lake included Hawk Creek 
from the waterfall at the campground to an area called ``the narrows'' 
and on the Kettle River above the Napoleon Bridge. Crescent Bay Lake, 
located near Lake Roosevelt but not a connected waterway, was closed to 
all motorized craft. In flat-wake zones vessels and PWC could not 
exceed flat-wake speed, which is defined as a minimal disturbance of 
the water by a vessel in order to prevent damage or injury.
    None of the concessioners at Lake Roosevelt currently rent PWC. 
Within 60 to 100 miles of the park, a total of five PWC dealerships 
were identified in Wenatchee, Spokane, and Okanogan. No PWC dealerships 
were identified closer to the park. A total of three rental shops were 
found within 30 miles of the park including Banks Lake, Sun Lake, and 
Blue Lake.
    Within 100 miles of Lake Roosevelt National Recreation Area there 
are several major lakes and many smaller lakes that allow PWC. The 
larger lakes include Banks Lake and Lake Chelan in Washington and Lake 
Coeur d'Alene and Lake Pend Oreille in Idaho.
    Some research suggests that some segments of the public view PWC as 
a ``nuisance'' due to their noise, speed, and overall effects on the 
environment, while others view PWC as no different from other 
watercraft and believe PWC users have a ``right'' to enjoy their sport. 
There has been some conflict between PWC and fishermen, canoeists, and 
swimmers at Lake Roosevelt.
    A total of only eight safety incidents involving PWC were reported 
on Lake Roosevelt during the years 1997 through 2002.

Notice of Proposed Rulemaking and Environmental Assessment

    On February 6, 2004, the National Park Service published a Notice 
of Proposed Rulemaking (NPRM) for the operation of PWC at Lake 
Roosevelt National Recreation Area (69 FR 5799). The proposed rule for 
PWC use was based on alternative B in the Environmental Assessment (EA) 
prepared by NPS for Lake Roosevelt. The EA was available for public 
review and comment from April 28 to May 28, 2003, and the NPRM was 
available for public comment from February 6 to April 6, 2004.
    The purpose of the environmental assessment was to evaluate a range 
of alternatives and strategies for the management of PWC use at Lake 
Roosevelt to ensure the protection of park resources and values while 
offering recreational opportunities. The analysis assumed alternatives 
would be implemented beginning in 2002 and considered a 10-year use 
period, from 2002 to 2012. In addition, the analysis assumed that PWC 
annual use will increase approximately 1% annually. Also, the analysis 
assumed that, due to the narrow and linear characteristics of the 
reservoir, each PWC that launches will recreate on waters managed by 
both NPS and tribal entities during an average trip, regardless of 
launch point. The NPS assumes no jurisdiction over tribal waters and 
generally does not enforce regulations in those areas; however, because 
of existing Memorandums of Understanding with the tribes the park may 
respond to law enforcement or emergency situations on tribal waters.
    The EA evaluated three alternatives concerning the use of PWC at 
Lake Roosevelt National Recreation Area. Alternative A allows PWC use 
under a special NPS regulation in accordance with NPS Management 
Policies 2001, 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 the closure on November 7, 2002. Therefore, under Alternative A, 
PWC use would be allowed throughout the recreation area, with 
limitations only in areas where restrictions existed before the 
closure. These areas include the following: Crescent Bay Lake 
(motorized watercraft restricted), Upper Kettle River, above the 
Napoleon Bridge (flat wake), and Upper Hawk Creek from the waterfall 
near the campground through the area known as the ``narrows'' (flat 
wake). Launch and retrieval of PWC would continue to be permitted only 
at designated boat launch ramps within Lake Roosevelt National 
Recreation Area. PWC users would be able to land anywhere along the 
shoreline, except in designated swimming areas. All nonconflicting 
State and Federal watercraft laws and regulations would continue to be 
enforced.
    As with Alternative A, Alternative B reinstates PWC use under a 
special regulation, but specific limits and use areas would be defined. 
However, based on comments received from the public during the EA 
scoping process and through the comment period for the EA, the NPRM 
proposed to implement Alternative B with one modification; the Kettle 
River would be closed to PWC above the Hedlund Bridge. Under 
Alternative B, PWC use would be reinstated within Lake Roosevelt in 
most locations of the recreation area where it was allowed prior to 
November 7, 2002 with some new restrictions. Under this alternative, 
the current flat-wake zone in Hawk Creek and the restriction on 
motorized watercraft use on Crescent Bay Lake would remain. In 
addition, extra flat-wake speed zoning would be implemented. These 
flat-wake restrictions would apply to the following areas: Within 200 
feet from launch ramps, marina facilities, campgrounds, beaches 
occupied by swimmers, water skiers and other persons in the water and 
the Spokane Arm from 200 feet west of the Two Rivers Marina on the 
downstream end, to 200 feet east of the Fort Spokane launch ramp on the 
upstream end, above the vehicle bridge. In addition to the extra flat-
wake zones, PWC use would be prohibited on the Kettle River from 
Hedlund Bridge, north to the headwaters. Except for Napoleon Bridge 
launch on the Kettle River where PWC launching would be prohibited, 
launch and retrieval of PWC would be permitted only at designated boat 
launch ramps within Lake Roosevelt National Recreation Area. As with 
Alternative A, PWC users would be able to land anywhere along the 
shoreline, except in designated swimming areas and all state and 
federal watercraft laws and regulations would continue to be enforced. 
The no-action alternative, would continue the current closure on PWC 
use within this national park system unit.
    As stated in the NPRM, based on the environmental analysis prepared 
for PWC use at Lake Roosevelt National Recreation Area, Alternative B 
is the preferred alternative and is also considered the environmentally 
preferred alternative because it best fulfills park responsibilities as 
trustee of this sensitive habitat; ensuring safe, healthful, 
productive, and aesthetically and culturally pleasing surroundings; and 
attaining 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

    The proposed rule was published for public comment on February 6, 
2004 (69 FR 5799), with the comment period lasting until April 6, 2004. 
The National Park Service received 19 timely written responses 
regarding the proposed regulation. All of the responses were separate 
letters. Of the 19 separate letters, 14 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

[[Page 35522]]

agency that responded. The term ``comments'' refers to statements made 
by a commenter.

General Comments

    1. Several commenters stated that the analysis and restrictions 
should include all motorized watercraft and not be limited to only PWC.
    NPS Response: The EA 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 purposes and management goals and 
objectives. An analysis was done on the management of personal 
watercraft in order to meet the requirement of the NPS general 
regulations 36 CFR 3.24, for PWC use.
    2. Several commenters stated that the proposed rule does not comply 
with Park's General Management Plan because it allows PWC use upstream 
of the Hedlund Bridge on the Kettle River.
    NPS Response: The implementation of this final rule is consistent 
with the Lake Roosevelt National Recreation Area General Management 
Plan, which allows for continuing PWC use subject to additional 
controls as necessary. The final rule, which is based on the updated 
Preferred Alternative B, does not allow PWC use upstream of the Hedlund 
Bridge on the Kettle River.
    3. One commenter stated that the management of PWC by the NPS was 
inconsistent with the Tri-Party Agreement signed in 1946 by the Bureau 
of Reclamation, National Park Service and the Bureau of Indian Affairs.
    NPS Response: PWC use under this final rule will be managed in 
accordance with state boating regulations with additional management 
prescriptions included as part of this alternative. The prescriptions 
are within the authority of the National Park Service to regulate 
recreational activities in areas under National Park Service 
jurisdiction. The Lake Roosevelt Cooperative Management Agreement, 
signed by the Secretary of the Interior on April 5, 1990, recognizes 
Lake Roosevelt National Recreation Area as an existing unit of the 
national park system and as such, subject to all NPS laws, regulations, 
policies and guidelines.
    4. Several commenters stated that the analysis failed to adequately 
address NPS impairment policies and mandates.
    NPS Response: The ``Summary of Laws and Policies'' section in the 
``Environmental Consequences'' chapter of the 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 Roosevelt National 
Recreation Area resources and values can be found under ``Impairment 
Analysis'' in the ``Methodology'' section of the EA.
    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.
    5. One commenter stated that the proposed rule gave the 
Superintendent of Lake Roosevelt National Recreation Area too much 
discretion to react contrarily to public preference for PWC use.
    NPS Response: Section 1.5 of Title 36 of the Code of Federal 
Regulations authorizes a park superintendent to temporarily limit, 
restrict, or terminate access to a park area to all public use or to a 
specific use or activity. Except in emergency situations, prior to 
implementing or terminating a restriction, condition, public use limit 
or closure, the superintendent will prepare a written determination 
justifying the action. The determination will set forth the reason(s) 
the restriction or closure has been established and an explanation of 
why less restrictive measures will not suffice. This authority is the 
same authority that is given to all superintendents to manage visitor 
use activities in any unit of the national park system.
    6. One commenter stated that the analysis considered for the 
proposed rule does not include adequate studies on visitor experience 
related to PWC use.
    NPS Response: The scope of the EA did not include conducting site 
specific studies regarding potential effects of PWC use on the Lake 
Roosevelt National Recreation Area. Analysis of potential impacts of 
PWC use on the national recreation area was based on best available 
data, input from park staff, and the results of analysis using that 
data.
    7. One commenter expressed concern that the water quality analysis 
did not take into account the actual lake level, which is currently 
well below full pool, when analyzing impacts from PWC use on water 
quality.
    NPS Response: Although the analysis did not look at the lower lake 
levels described in this comment, the volume of water required for 
dilution was calculated to be such a small volume that even with lower 
lake levels impacts would be negligible adverse.
    8. One commenter requested additional information regarding the 
statement from Bluewater Network that research at Lake Mead, Nevada, 
showed PWC dump 25-30% of unburned fuel into the water.
    NPS Response: The report by the Bluewater Network cited in the 
Selected Bibliography section of the EA is ``Jet Position Paper'' 
(2001) available on the Web at http://www.earthisland.org/bw/jetskipos.htm. Information from this article is not used in the EA. In 
appendix A of the EA, an emission rate of 3 gal./hour is attributed to 
the California Air Research Board (CARB 1998). This is based on the 
CARB (1998, 1999) estimate of 25-30% unburned fuel discharged into the 
water. In Bluewater Network (2001), reference is made to figures in 
Personal Watercraft Illustrated wherein model year 2000 personal 
watercraft on average consume 15.1 gallons of fuel per hour at full 
throttle and can dump between 25 and 30% of the fuel unburned into the 
water or 3.79 to 4.53 gal/hour. The emission rate of 3 gal/hour used in 
calculations of impacts to water quality is a mid-point between 3 
gallons in 2 hours (1.5 gal/hour; NPS 1999) and 3.79 to 4.53 gal/hour 
(Personal Watercraft Illustrated and Bluewater Network 2001). The 
reference in the comment to ``25%-30% of unburned fuel in Lake Mead, 
Nevada'' cannot be located in the Bluewater Network (2001) article, and 
therefore, the raw data also cannot be located.
    9. One commenter expressed concern that there was little discussion 
of cumulative impacts to water quality in the analysis.
    NPS Response: Cumulative impacts to water quality are not ignored 
in the EA. Cumulative impacts are discussed for each of the three 
alternatives on pages 95-96 and 98-99. The challenge in the EA was to 
quantify the impacts to water quality from personal watercraft, other 
motorized vessels, and from other sources of petroleum-based organic 
compounds typical of those emitted from personal watercraft within the

[[Page 35523]]

Columbia River watershed. Contributions of organic pollutants from 
personal watercraft and other motorized vessels were estimated for the 
purpose of evaluating cumulative impacts from these two types of 
vessels. As described on pages 88-89 of the EA, Lake Roosevelt National 
Recreation Area does not have quantitative water quality data 
applicable to the evaluation of impacts to the reservoir water quality. 
Therefore, the contribution of organic contaminants from upstream 
sources cannot be quantified. Because the EA was prepared for the 
purpose of evaluating potential impacts from personal watercraft, which 
constitute an estimated 4% of all motorized vessels on the reservoir 
(page 84 of the EA), the contribution from these watercraft was not 
ignored.
    10. One commenter was concerned that the EA failed to adequately 
address the impacts to wildlife from PWC use. The commenter felt that 
the absence of osprey is directly related to PWC noise level and that 
the EA does not address the loss of river otters.
    NPS Response: The upper Hawk Creek area is designated as a flat-
wake zone (page 64 of the EA) which helps minimize noise disturbance of 
waterfowl, including osprey. The decline of a species from an area is 
usually the result of many contributing factors. These factors can 
include a loss of habitat, loss of suitable prey organisms, increased 
pollution levels, or other human disturbance. The apparent decline in 
numbers of osprey likely is not due to just one factor (e.g., personal 
watercraft noise levels), especially since Hawk Creek is a flat-wake 
zone.
    River otters are listed together with beaver as common small 
mammals on page 63 of the EA. In the Environmental Consequences section 
of the EA, ``Aquatic mammals such as beaver * * *'' are discussed in 
the context of disturbance of wildlife and wildlife habitat. A list of 
current protected (endangered, threatened, and species of concern) 
species is provided in Table 9 (page 66 of the EA). The river otter is 
not listed by either the U.S. Fish and Wildlife Service or the 
Washington Department of Fish and Wildlife. If, as the comment 
contends, the river otter is now absent from areas where it was once 
abundant, it might be considered as an extirpated species--missing from 
a formerly occupied area but still found in other areas of its normal 
range.
    11. Several commenters expressed concern regarding the park's 
ability to adequately enforce the new regulations set forth in the 
proposed rule.
    NPS Response: PWC use under the final rule will be managed under 
current NPS boating regulations, which adopt Washington State Boating 
Laws, with additional management prescriptions included as a part of 
this alternative. These management strategies are more restrictive than 
state PWC regulations by increasing flat-wake speed zones and resource 
monitoring. The prescriptions are within the NPS legal mandate to 
regulate recreational activities under its jurisdiction, and there will 
be no conflict with state or other federal policies or regulations. 
Conflicts with regulations and policies of the Spokane Tribe of Indians 
and the Confederated Tribes of the Colville Reservation would exist due 
to differences in restrictions on the National Park Service versus 
tribal waters. The park anticipates staffing at current levels will be 
able to manage the new restrictions.
    12. Two commenters were concerned that the socioeconomic impact 
analysis was not adequate because it failed to consider impacts to 
other non-PWC businesses if a ban on PWC was to continue.
    NPS Response: As outlined in the EA, Alternative B is expected to 
have minimal, if any, impact on local/regional socioeconomics since the 
use of PWC at Lake Roosevelt will not be banned.
    13. Two commenters expressed concern that that Spokane and Colville 
Confederated Tribes were not consulted with during the planning 
process.
    NPS Response: The tribes were invited to review and comment on the 
draft EA before it was released to the public. The superintendent, 
after the public comment period closed, involved the tribal Business 
Councils and senior BIA representatives in discussions about the final 
version of the preferred alternative. Both tribes indicated that they 
did not intend to limit use by PWC on the portions of Lake Roosevelt 
that they manage and that for the NPS to act unilaterally on this issue 
would cause great confusion for the recreating public, result in 
greater impacts from PWC on the parts of the lake under their 
management.
Economic Summary
    The preferred alternative (Alternative B) and another alternative 
(Alternative A) were analyzed to determine the economic impacts of 
allowing the use of personal watercraft (PWC) in Lake Roosevelt 
National Recreation Area (LARO).\1\ Alternative C, which would maintain 
a ban on PWC in LARO, represents the baseline for this analysis. The 
economic impacts of Alternatives A and B are measured relative to that 
baseline. Alternative A would reinstate PWC use in LARO as previously 
managed prior to the ban subject to specific location, flat wake, 
launch and retrieval, and operating restrictions. Alternative B would 
also reinstate PWC use, but includes additional location and flat wake 
restrictions to mitigate watercraft safety and visitor health and 
safety concerns, and to enhance the overall visitor experience. 
Additionally, Alternative B would establish a monitoring program to 
determine any future impacts of allowing PWC use in LARO.
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    \1\ This summary briefly describes the results of the economic 
analysis presented in National Park Service 2003.
---------------------------------------------------------------------------

    The primary beneficiaries of Alternatives A and B are the visitors 
who would use PWCs within the recreation area if permitted, PWC users 
in substitute areas outside LARO where individuals displaced from LARO 
ride because of the ban, and the businesses that serve PWC users. All 
visitors using PWCs in LARO prior to the ban are assumed to regain 
their full economic value for PWC use in LARO under both Alternatives A 
and B. PWC users who currently ride in substitute areas outside LARO 
are assumed to gain some economic value if these areas are less crowded 
than under baseline conditions due to reinstating PWC use in LARO. 
Finally, suppliers of PWC rentals, sales, and service, as well as local 
hotels, restaurants, gas stations, and other businesses that serve PWC 
users, will likely experience an increase in business under 
Alternatives A and B.
    While beneficiaries may gain more economic value under Alternative 
A than Alternative B due to fewer restrictions, NPS was unable to 
quantify any differences, and considers the benefits of those two 
alternatives to be similar. For both Alternatives A and B, PWC users 
are expected to gain a total present value of benefits between 
$1,076,400 and $1,311,300 over the next ten years, depending on the 
discount rate used.\2\ Businesses are expected to gain a total present 
value of benefits between $9,600 and $78,000, depending on the discount 
rate used. The total present values of these benefits are presented in 
Table 1, and their

[[Page 35524]]

amortized values per year are given in Table 2.
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    \2\ Quantified economic impacts were discounted over the ten-
year timeframe using both 3 and 7-percent discount rates. A 3-
percent discount rate is indicated by the economics literature 
(e.g., Freeman, 1993) and by two Federal rule-makings (61 FR 453; 61 
FR 20584). A 7-percent discount rate is required by Office of 
Management and Budget Circular A-94.

 Table 1.--Total Present Value of Benefits (Thousands of Dollars) for Personal Watercraft Use in Lake Roosevelt
                                     National Recreation Area, 2003 to 2012
----------------------------------------------------------------------------------------------------------------
                                      PWC users            Businesses                        Total
----------------------------------------------------------------------------------------------------------------
Alternative A:
    Discounted at 3%\a\............     $1,311.3  $12.1 to $78.0.............  $1,323.5 to $1,389.3
    Discounted at 7%\b\............      1,076.4  9.6 to 61.6................  1,086.0 to 1,138.0
Alternative B:
    Discounted at 3%\a\............      1,311.3  12.1 to 78.0...............  1,323.5 to 1,389.3
    Discounted at 7%\b\............      1,076.4  9.6 to 61.6................  1,086.0 to 1,138.0
----------------------------------------------------------------------------------------------------------------
\a\ The economics literature supports a 3-percent discount rate in the valuation of public goods (e.g., Freeman,
  1993). Federal rule-makings also support a 3-percent discount rate in the valuation of lost natural resource
  use (61 FR 453; 61 FR 20584).
\b\ Office of Management and Budget Circular A-94, revised January 2003.


   Table 2.--Amortized Benefits per Year (Thousands of Dollars) for Personal Watercraft Use in Lake Roosevelt
                                    National Recreation Area, 2003 to 2012 a
----------------------------------------------------------------------------------------------------------------
                                       PWC users            Businesses                        Total
----------------------------------------------------------------------------------------------------------------
Alternative A:
    Discounted at 3% \b\............       $153.7  $1.4 to $9.1................  $155.2 to $162.9.
    Discounted at 7% \c\............        153.3  1.4 to 8.8..................  154.6 to 162.0.
Alternative B:
    Discounted at 3% \b\............        153.7  1.4 to 9.1..................  155.2 to 162.9.
    Discounted at 7% \c\............        153.3  1.4 to 8.8..................  154.6 to 162.0.
----------------------------------------------------------------------------------------------------------------
\a\ This is the total present value of benefits reported in Table 1 amortized over the ten-year analysis
  timeframe at the indicated discount rate.
\b\ The economics literature supports a 3-percent discount rate in the valuation of public goods (e.g., Freeman,
  1993). Federal rule-makings also support a 3-percent discount rate in the valuation of lost natural resource
  use (61 FR 453; 61 FR 20584).
\c\ Office of Management and Budget Circular A-94, revised January 2003.

    The costs associated with Alternatives A and B would accrue 
primarily to LARO visitors who do not use PWCs and whose recreation 
area experience is negatively affected by the use of PWCs within the 
recreation area. At LARO, non-PWC uses include boating, canoeing, 
fishing, and hiking. Impacts to these users may include the aesthetic 
costs associated with noise and visibility impacts, human health costs, 
ecosystem degradation costs, and safety and congestion costs. Average 
annual visitation to LARO was over 1.4 million people from 1998 to 
2002. Most of these visitors are believed to come to the park for some 
form of water-based recreation. However, non-PWC users accounted for 
over 99 percent of total visitation.
    ``Nonusers'' of the recreation area may also bear some costs under 
Alternatives A and B. For example, individuals who do not visit the 
recreation area may experience a reduction in economic value simply 
from the knowledge that the natural resources of the recreation area 
may be degraded by PWC use. Part of this loss may stem from a decreased 
assurance that the quality of the recreation area's resources is being 
protected for the enjoyment of future generations.
    Most of the costs associated with Alternatives A and B are believed 
to be relatively small. Evaluating these costs in monetary terms was 
not feasible with currently available data, but they are qualitatively 
described in the economic analysis. Therefore, the benefits presented 
in Tables 1 and 2 above overstate the net benefits (benefits minus 
costs) of the different alternatives. If all costs could be quantified, 
the indicated net benefits for each alternative would be lower than the 
benefits indicated in Tables 1 and 2.
    The costs associated with aesthetics, ecosystem protection, human 
health and safety, congestion, and nonuse values would likely be 
greater for Alternative A and for Alternative B due to the additional 
restrictions on PWC use in Alternative B. Since the quantified benefits 
for Alternatives A and B were the same, inclusion of these un-
quantified costs would reasonably result in Alternative B having the 
greatest level of net benefits. Therefore, based on this analysis, the 
selection of Alternative B as the preferred alternative was considered 
reasonable.
References
Freeman, A. M. III. The Measurement of Environmental and Resource 
Values: Theory and Methods. Washington, DC: Resources for the Future, 
1993.
National Park Service. ``Economic Analysis of Management Alternatives 
for Personal Watercraft in Lake Roosevelt National Recreation Area.'' 
Report prepared for the National Park Service by MACTEC Engineering and 
Consulting, Inc., BBL Sciences, Inc., and RTI International, October 
2003.

Changes to the Final Rule

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

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and has not been reviewed 
by the Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This determination is based on the report ``Economic 
Analysis of Management Alternatives for Personal Watercraft in Lake 
Roosevelt National Recreation Area'' (MACTEC Engineering and 
Consulting, Inc., October 2003).
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by

[[Page 35525]]

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.

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 report ``Economic 
Analysis of Management Alternatives for Personal Watercraft in Lake 
Roosevelt National Recreation Area'' (MACTEC Engineering and 
Consulting, Inc., October 2003).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

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

Unfunded Mandates Reform Act

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    As a companion document to the NPRM, NPS issued the Personal 
Watercraft Use Environmental Assessment for Lake Roosevelt National 
Recreation Area. The Environmental Assessment (EA) was open for public 
review and comment from April 28, 2003 to May 28, 2003. A Finding of No 
Significant Impact (FONSI) was signed on June 17, 2004. Copies of the 
FONSI may be downloaded at http://www.nps.gov/laro or obtained by 
calling 509-633-9441 ext. 110 or writing to the Superintendent, Lake 
Roosevelt National Recreation Area, 1008 Crest Drive, Coulee Dam, WA 
99116.

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 potential effects. Lake Roosevelt conducted preliminary 
consultation with the Spokane Tribe of Indians and the Confederated 
Tribes of the Colville Reservation in 2000 when the original rulemaking 
came into effect. Since that time, the park has continued to keep the 
Tribes informed in writing about various milestones during the PWC 
process. The Colville Tribes also commented on the EA which supports 
this rulemaking and supported the preferred alternative which is 
implemented through this rulemaking. The NPS also consulted with the 
Tribes on the provisions of the regulation and its possible effects on 
tribal waters.

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 7.55(c), 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 Roosevelt National Recreation Area that relieves 
the restrictions imposed by the general regulation, 36 CFR 3.24. The 
general regulation, 36 CFR 3.24, prohibits the use of PWC in units of 
the national park system unless an individual park area has designated 
the use of PWC by adopting a part 7 special regulation. The proposed 
rule was published in the Federal Register (69 FR 5799) on February 6, 
2004, with a 60-day period for notice and comment consistent with the 
requirements of 5 U.S.C. 553(b). The Administrative Procedure Act, 
pursuant to the exception in paragraph (d)(1), waives the section 
553(d) 30-day waiting period when the published rule ``grants or 
recognizes an exemption or relieves a restriction.'' In this rule the 
NPS is authorizing the use of PWCs, which is otherwise prohibited by 36 
CFR 3.24. As a result, the 30-day waiting period before the effective 
date does not apply to the Lake Roosevelt 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

[[Page 35526]]

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).


0
2. Amend Sec.  7.55 by revising the section title and adding new 
paragraph (c) to read as follows:


Sec.  7.55  Lake Roosevelt National Recreation Area.

* * * * *
    (c) Personal Watercraft (PWC). (1) PWCs are allowed on the waters 
within Lake Roosevelt National Recreation Area except in the following 
areas:
    (i) Crescent Bay Lake.
    (ii) Kettle River above the Hedlund Bridge.
    (2) Launch and retrieval of PWC are permitted only at designated 
launch ramps. Launching and retrieval of PWC at Napoleon Bridge launch 
ramp is prohibited.
    (3) PWC may land anywhere along the shoreline except in designated 
swimming areas.
    (4) PWC may not be operated at greater than flat-wake speeds in the 
following locations:
    (i) Upper Hawk Creek from the waterfall near the campground through 
the area known as the ``narrows'' to the confluence of the lake, marked 
by ``flat wake'' buoy(s).
    (ii) Within 200 feet of launch ramps, marina facilities, campground 
areas, water skiers, beaches occupied by swimmers, or other persons in 
the water.
    (iii) The stretch of the Spokane Arm from 200 feet west of the Two 
Rivers Marina on the downstream end, to 200 feet east of the Fort 
Spokane launch ramp on the upstream end, above the vehicle bridge.
    (5) 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: June 10, 2004.
Paul Hoffman,
Deputy Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 04-14115 Filed 6-24-04; 8:45 am]
BILLING CODE 4312-52-P