The Nuclear Regulatory Commission (NRC) is amending its regulations to conform with recently enacted provisions contained in the Energy Policy Act of 2005, Public Law 109-58. In that act, Congress amended Section 170 of the Atomic Energy Act (the Price-Anderson Act) to increase the amount reactor licensees must contribute annually to compensate the public for damages if a nuclear accident occurs. Congress also provided special treatment for potential licensees of modular reactors by defining what combination of reactors is entitled to be considered a single reactor under the Price-Anderson Act for determining the applicable financial requirements. In the same legislation, Congress eliminated NRC's authority and responsibility to conduct antitrust reviews of future applications for a license to construct or operate a nuclear reactor.

This rule revises the Commission's regulations solely to comply with the Energy Policy Act of 2005. The changes simply incorporate mandatory statutory requirements or eliminate authorities and actions under a Congressional mandate, which by its terms applies only to future nuclear reactor construction permits and operating license applications and has no effect on the Commissions' authority relative to existing nuclear reactor operating license antitrust conditions. Accordingly, good cause exists under 5 U.S.C. 553(d)(3) to publish this final rule without soliciting public comment because the Commission has no discretion in these matters and public comment would serve no useful purpose. The revisions are being published as a final rule that will become effective 30 days from the date of publication in the Federal Register .

The Atomic Energy Commission and its successor the Nuclear Regulatory Commission have had the authority and obligation to conduct antitrust reviews of applicants for licenses to construct and operate nuclear reactors. In determining whether to grant such a license, the Commission was required to make a finding whether the activities under the license would create or maintain a situation inconsistent with the Nation's antitrust laws. Sometimes the Commission has needed to conduct a lengthy hearing on antitrust issues before issuing its decision. In recent years, other Government agencies more specialized in financial matters have demonstrated oversight and authority sufficient to discern and address potential anticompetitive behavior of nuclear energy producers. In light of the redundant antitrust responsibilities of the Commission and those agencies, Congress enacted section 625 of the Energy Policy Act of 2005 which eliminated the Commission's antitrust authority with respect to future license applications. The final rule's changes in the regulations remove all antitrust review requirements and references to the discontinued antitrust review.

In the event of a serious nuclear accident with substantial offsite damages, the Price-Anderson Amendments Act of 1988 required each licensee of a commercial reactor (one with a rated capacity of 100,000 electrical kilowatts or more) to pay into a retrospective premium pool, as needed, $10 million annually per reactor up to the sum of $63 million as adjusted for inflation to pay for harm to person or property caused by the accident. By August 2003, that sum, as adjusted for inflation, had reached the amount of $95,800,000. In section 603 of The Energy Policy Act of 2005, Congress replaced the $63 million limit with the $95,800,000 current limit, already incorporated in the Commission's rules as the new base for inflation adjustment. Congress also decided that the $10 million annual payment which had remained unchanged since 1988 should be increased to $15 million and should be adjusted for inflation in the future. Accordingly, the Commission is changing the regulation to reflect the current $15 million amount the nuclear reactor licensees would pay annually if public liability damages exceeded the insurance required to be carried by the licensee.

In section 608 of the Energy Policy Act of 2005, Congress recognized that new designs of reactors known as modular reactors could result in groupings of a smaller capacity reactor than the typical commercial reactor currently in use, but where each single modular reactor still exceeds the 100,000 electrical kilowatts that would trigger the financial obligations currently required of a large reactor. To make the small modular reactors economically feasible while maintaining for them an equitable obligation to assure available funds for the public, the Energy Policy Act provided that a prescribed combination of facilities should be considered as a single facility for the sole purpose of assessing financial obligations under the Price-Anderson Act. The Commission is amending its rules to include the description of the combination of modular reactors which is to be treated as a single reactor for assessing obligations to contribute to the pool that will pay for public harm if a serious nuclear accident occurs.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this rule, the NRC is revising its regulations to reflect statutory mandates contained in the Energy Policy Act of 2005. This action does not constitute the establishment of a standard that contains generally applicable requirements.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The basis for this determination is that the rule relates to liability under the Price-Anderson Act and the elimination of NRC's antitrust reviews. In addition, the changes to the regulations in Parts 2, 50, 52 and 140 are actions that fall within the categorical exclusions set out in 10 CFR 51.22(c)(1) and (3).

This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0011, 3150-0151, and 3150-0039.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

A regulatory analysis has not been prepared for this regulation. This rule amends NRC regulations to be consistent with provisions in the Energy Policy Act of 2005. This rule does not involve an exercise of Commission discretion and, therefore, does not necessitate preparation of a regulatory analysis.

The NRC has determined that the backfit rule does not apply to this final rule; and therefore, a backfit analysis is not required for this final rule because these amendments are mandated by the Energy Policy Act of 2005.

In accordance with the Congressional Review Act, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

Background

On August 4, 2005, the FAA amended its regulations to provide for issuance of a pilot type rating for SIC privileges when a person completes the SIC pilot familiarization training set forth under 14 CFR 61.55(b), an FAA-approved SIC training curriculum under 14 CFR parts 121 or 135, or a proficiency check under 14 CFR part 125. See 70 FR 45263. The amendments adopted on August 4, 2005, are based on a notice of proposed rulemaking (NPRM) published in the Federal Register on November 16, 2004. See 69 FR 67258.

The amendments require pilots acting as second in command and who plan to fly outside U.S. domestic airspace and land in foreign countries to obtain the SIC pilot type rating. The amendments also established two procedures for obtaining the SIC pilot type rating. The effective date of the amendments is September 6, 2005. The effective date is the date the amendments affect the current Code of Federal Regulations.

On September 9, 2005, the FAA published a final rule establishing a compliance date for the SIC pilot type rating final rule. See 70 FR 53560. The compliance date is June 6, 2006. A compliance date, in contrast to an effective date, is the date that those affected by the rule must begin to follow it. Thus, pilots acting as a second in command and who will be flying outside U.S. domestic airspace and landing in a foreign country must hold the appropriate SIC pilot type rating no later than June 6, 2006.

Neither the effective date, nor the compliance date, of the final rule are affected by these corrections. These corrections are effective as if they had been included in the final rule. Accordingly, these corrections have the same effective date as the final rule, September 6, 2005.

As described below, the FAA is making non-substantive corrections to the SIC pilot type rating final rule.

We are deleting the introductory phrase “Except as provided in paragraph (f) of this section.” That phrase erroneously excludes pilots employed by operators that conduct operations under subpart K of part 91, parts 121, 125, or 135 from the requirement to hold a SIC pilot type rating. In the preamble of the final rule, we did not exclude pilots conducting operations under subpart K of part 91, parts 121, 125, or 135 from the requirement to hold the SIC pilot type rating when operating an aircraft outside U.S. domestic airspace that takeoffs or lands in a foreign country. The entire purpose for the amendments under 14 CFR 61.55 was to conform U.S. pilot type rating requirements to the International Civil Aviation Organization's (ICAO) pilot type ratings standards (See ICAO Annex 1, paragraphs 2.1.3.2 and 2.1.4.1.A). This change conforms the regulatory language to the preamble discussion.

We are adding the words “or privilege” to acknowledge that those who hold an airline transport pilot certificate where instrument privileges are inferred also may qualify for the SIC pilot type rating. This action corrects an error in the pre-existing rule that was inadvertently carried over into the final rule adopted on August 4, 2005.

We are correcting an erroneous cross reference in the introductory language of this paragraph to read “Except as provided in paragraph (e) of this section.” By adding the SIC pilot type rating requirements while retaining some of the original language, the August 4, 2005, final rule unintentionally created an exception. Pilots who have satisfactorily completed a proficiency check or competency check under subpart K of part 91, parts 121, 125, or 135 do not have to complete the familiarization training of paragraph (b).

We are deleting the cross reference in the introductory language because it is unnecessary.

We are adding the phrase “provided the training was completed within the 12 calendar months before the month of application for the SIC pilot type rating” to both paragraphs (d) and (e). This will conform the regulatory text to the preamble discussion in the August 4, 2005, final rule. In the preamble to the final rule, we provided examples illustrating that completion of the required training had to occur within the 12 calendar months before the month of application for the SIC pilot type rating. This was clearly the intent of the final rule, yet the corresponding regulatory language was inadvertently omitted from the regulatory text.

We are amending the introductory language of this paragraph to exempt certain pilots from the familiarization training requirements of 14 CFR 61.55(b). This action corrects an error in pre-existing 14 CFR 61.55(d) that was inadvertently carried over into the August 4, 2005, final rule.

Pilots employed by operators that conduct operations under subpart K of part 91 and parts 121, 125, or 135 do not have to complete the SIC familiarization training described under paragraph (b) of this section. Instead, pilots that are employed by operators that conduct operations under subpart K of part 91 and parts 121, 125, or 135 must comply with the requirements of paragraph (e) of this section to qualify for a SIC pilot type rating.

We are deleting the introductory phrase “Except as provided in paragraph (h) of this section.” This action corrects an error in pre-existing 14 CFR 61.55(g) that was inadvertently carried over into the August 4, 2005, final rule, which redesignated paragraph (g) as paragraph (i).

We are adding the phrase “The training required under paragraphs (b) and (d) of this section and the training and proficiency check required under paragraph (e) of this section.” This clarifies that a flight simulator may be used in an approved training course conducted by a training center certificated under part 142 of this chapter or for the training and proficiency check under parts 121 or 135 of this chapter. This is a non-substantive correction because parts 121 and 135 already allow the use of a flight simulator in an approved training course and for the required proficiency/competency check.

We are deleting the phrase “who is qualifying under the terms of paragraph (g) of this section” because it is unnecessary. We also made editorial changes for the purpose of clarity.

Under our rules in effect before we adopted the August 4, 2005, final rule, certain pilots who received SIC training in an approved flight simulator did not have to complete at least one takeoff and landing in an aircraft of the type for which they were seeking the SIC qualification. See pre-existing 14 CFR 61.55(d). The August 4, 2005, final rule eliminated the exception. This had the unintentional effect of requiring the previously exempt simulator trainees to complete an actual takeoff and landing. This is a significant new requirement—one that we could not undertake without giving the public adequate notice and opportunity to comment. Thus, this correction adds a sentence to paragraph (j) of § 61.55 to re-establish the pre-existing exception. Pilots who complete a proficiency check under part 121 ( i.e. , § 121.441) or competency check under subpart K, part 91 ( i.e. , § 91.1065), part 125 ( i.e. , § 125.287), or part 135 ( i.e. , § 135.293) do not have to complete a takeoff and landing in an aircraft of the type for which they seek the SIC qualification.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before a rule takes effect. This is to comply with section 553(b) of the Administrative Procedure Act (5 U.S.C. 553(b)). However, we can waive the public notice and comment procedure if we find, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest. We must provide a statement of the finding and the reasons for it.

The SIC pilot type rating requirements under the August 4, 2005, final rule were subject to notice and comment procedures. This correction notice makes changes to conform the regulatory text to the requirements described in the preamble of the August 4, 2005, final rule. This correction notice also changes incorrect references and corrects errors in the pre-existing regulations that were inadvertently carried over. This correction notice is intended to ensure that the August 4, 2005, final rule accurately reflects the SIC pilot type rating requirements. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice.

We ordinarily provide a 30-day delay in the effective date of a final rule after the date of publication in the Federal Register . This is to comply with section 553(d) of the Administrative Procedure Act (5 U.S.C. 553(d)). However, we can waive the 30-day delay if we find, for good cause, that the delay is impracticable, unnecessary, or contrary to the public interest. We must provide a statement of the finding and the reasons for it.

We find that it is in the public interest to ensure that the August 4, 2005, final rule accurately reflects the SIC pilot type rating requirements. A delay in the effective date of these corrections would be contrary to the public interest. We also find that it is in the public interest to apply the changes in the correction notice retroactively to September 6, 2005, the effective date of the August 4, 2005, final rule. There is a limited amount of time available for affected pilots to comply with the final rule. The compliance date is June 6, 2006. Any further delay in the effective date of these changes would reduce the amount of time available.

MMS regulations currently charge cost recovery fees to lessees of Federal offshore oil and gas leases to offset the bureau's operating costs for specific administrative services provided to a particular lessee. These include pipeline right-of-way (ROW) grant applications, conversion of lease term pipelines to ROW pipelines, pipeline ROW assignments, record title/operating rights transfers, and filing of non-required documents.

Under current rules, these fees are established at the following rates under the following regulations:

On August 29, 2005, Hurricane Katrina came ashore on the Gulf of Mexico coast. The resultant flood of the City of New Orleans, Louisiana, forced the evacuation of the city and areas in the immediate vicinity. The evacuation area included MMS' GOMR office in Metairie, Louisiana. MMS has not been able to re-occupy the GOMR office and will not be able to do so for some time. While MMS GOMR personnel have resumed certain essential operations and services at a new temporary location in Houston, Texas, it is not possible to restore all functions and systems in that location in the immediate future. In addition, many MMS employees in the GOMR office have suffered severe property loss and personal and family dislocation, and will not be able to return to work immediately. When Hurricane Rita struck the Louisiana/Texas coast in September 2005, it further exacerbated these problems.

Among the operations that have been disrupted as a result of the hurricanes and the closure of the GOMR office in Metairie, is the collection and disposition of, and proper accounting for, cost recovery fees, including the fees identified above. Because very few of the documents identified are filed in either MMS' Pacific Region office or MMS' Alaska Region office, the computers that handle these payments are integrated with the GOMR office computers. Consequently MMS is temporarily unable to process payments that would be made to those offices.

Because the MMS presently cannot receive or handle cost recovery fee payments from lessees until it is able to restore or replace that part of its operations, MMS is suspending the operation of the provisions identified above until January 3, 2006.

The Administrative Procedure Act, at 5 U.S.C. 553(b), requires an agency to publish a proposed rule and seek public comment before promulgating a final rule, except

Under this provision, MMS for good cause finds that notice and public comment on this rulemaking is impracticable, unnecessary, and contrary to the public interest. The GOMR office's current situation cannot be changed or affected through public comment, and the need to suspend the operation of the cost recovery provisions is immediate.

The Administrative Procedure Act, at 5 U.S.C. 553(d) further provides:

As explained above, the need to suspend the operation of the cost recovery provisions is immediate and arises in much less than 30 days. MMS operations would be unnecessarily hindered if MMS were not to make this rule effective immediately. Therefore, MMS for good cause finds that this rule should take effect immediately.

If the GOMR office is not able to restore normal operations by January 3, 2006, MMS may consider extending the suspension of the cost recovery provisions.

This document is not a significant rule as determined by the Office of Management and Budget (OMB) and is not subject to review under E.O. 12866.

(1) This rule will not have an annual 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 rule waives for a limited time certain fees previously established based on cost recovery principles.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency because the costs incurred are for specific MMS services and other agencies are not involved in these aspects of the OCS program.

(3) This rule will not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This change will have no effect on the rights of the recipients of entitlements, grants, user fees, or loan programs. The fees waived by this rule are service fees based on cost recovery, and not user fees.

(4) This rule will not raise novel legal or policy issues.

MMS certifies that this rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ).

This change will affect lessees and operators of leases in the OCS. This includes about 130 Federal oil and gas lessees and 115 holders of pipeline rights-of-way. Small lessees that operate under this rule will fall under the Small Business Administration's (SBA) North American Industry Classification System Codes (NAICS) 211111, Crude Petroleum and Natural Gas Extraction and 213111, Drilling Oil and Gas Wells. For these NAICS code classifications, a small company is one with fewer than 500 employees. Based on these criteria, an estimated 70 percent of these companies are considered small. This rule, therefore, affects a substantial number of small entities.

This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. MMS is simply waiving certain service-based fees, not increasing them. The total estimated fee revenue MMS would waive until January 3, 2006 is between $400,000 and $500,000.

Comments are important. The SBA Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small business about federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to the SBA without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI.

This is not a major rule under the SBREFA (5 U.S.C. 804(2)). 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) Will 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. Leasing on the U.S. OCS is limited to residents of the U.S. or companies incorporated in the U.S. This rule does not change that requirement.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required. This is because the rule will not affect State, local, or tribal governments, and the effect on the private sector is small.

With respect to E.O. 12630, the rule will not have significant takings implications. A Takings Implication Assessment is not required. The rulemaking is not a governmental action capable of interfering with constitutionally protected property rights.

With respect to E.O.13132, the rule will not have Federalism implications. It will not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this change will not affect that role.

With respect to E.O. 12988, the Office of the Solicitor has determined that this rule will not unduly burden the judicial system, and meets the requirements of Sections 3(a) and 3(b)(2) of the E.O.

This rulemaking relates to 30 CFR part 250, subpart J and to 30 CFR part 256, subpart J. The rulemaking affects the information collections for these regulations but will not change the approved burden hours, just the associated fees. Therefore, OMB has determined that there is no change in the information collection and that MMS does not need to make a formal submission by Form OMB 83-I for this rulemaking.

OMB has approved the information collections for the affected regulations as 30 CFR part 250, subpart J, 1010-0050 and 30 CFR part 256, subpart J, 1010-0006. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

The MMS has determined that this rule is administrative and involves changes addressing fee requirements. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of the NEPA, pursuant to 516 DM 2.3A and 516 DM 2, Appendix 1, Item 1.10.

In addition, the rule does not meet any of the 10 criteria for exceptions to categorical exclusions listed in 516 DM 2, Appendix 2. Pursuant to Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the Department of the Interior, the term “categorical exclusions” means categories of actions which do not individually or cumulatively have a significant effect on the human environment and which have no such effect in procedures adopted by a Federal agency and therefore require neither an environmental assessment nor an environmental impact statement.

E.O. 13211 requires the agency to prepare a Statement of Energy Effects when it takes a regulatory action that is identified as a significant energy action. This rule is not a significant energy action, and therefore does not require a Statement of Energy Effects, because it:

(1) Is not a significant regulatory action under E.O. 12866,

(2) Is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and

(3) Has not been designated by the Administrator of the OIRA, OMB, as a significant energy action.

In accordance with E.O. 13175, this rule will not have tribal implications that impose substantial direct compliance costs on Indian tribal governments.

E.O. 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the rule? What else can we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov .

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 prohibits PWC use in all park units effective April 20, 2000, except a limited exception was provided for 21 parks, lakeshores, seashores, and recreation areas. The regulation established a 2-year grace period following the final rule publication to give these 21 park units time to consider whether PWC use should be allowed. Accordingly, on April 22, 2002, Pictured Rocks National Lakeshore closed for PWC use.

Pictured Rocks National Lakeshore is situated in the north-central section of Michigan's Upper Peninsula, along the southern shore of Lake Superior. The eastern half of the Upper Peninsula is bounded by Lakes Superior, Michigan, and Huron. There are a variety of other national parks in the upper Great Lakes, including Apostle Islands National Lakeshore and Isle Royale National Park on Lake Superior, and Sleeping Bear Dunes and Indiana Dunes National Lakeshores on Lake Michigan. Canadian provincial parks are also located on Lake Superior.

The national lakeshore stretches from Munising to Grand Marais, approximately 40 miles to the northeast. The shoreline consists of narrow sandy beaches, sandstone cliffs, and a perched sand dune system. The sandy shoreline is susceptible to erosion from natural weather conditions.

Pictured Rocks National Lakeshore was authorized in 1966. The lakeshore is noted for its multicolored sandstone cliffs, beaches, sand dunes, waterfalls, inland lakes, wildlife, and forested shoreline. Attractions include a lighthouse and former Coast Guard lifesaving stations, along with old farmsteads and orchards. The lakeshore is a year-round recreational destination where hiking, camping, hunting, nature study, and winter activities abound.

As formulated during the Pictured Rocks National Lakeshore general management planning process, the purpose of the national lakeshore includes the following:

• Preserve a portion of the Great Lakes shoreline for its geographic, scientific, scenic, and historic features, and its associated ecological processes.

• Provide opportunities for public benefit in recreation, education, enjoyment, and inspiration.

• Protect the character and use of the shoreline zone while allowing economic utilization of the inland buffer zone's renewable resources.

As stated in the national lakeshore's Draft General Management Plan/Wilderness Study/Environmental Impact Statement, Pictured Rocks National Lakeshore is significant because:

1. Pictured Rocks National Lakeshore preserves and affords public access to a spectacular and diverse segment of the Lake Superior shoreline.

2. Unmatched in their scenic value, the 200-foot high Pictured Rocks cliffs rise perpendicularly from Lake Superior, creating a rock mosaic of form, color, and texture, which is enhanced by cascading waterfalls. Grand Sable Dunes, perched atop 300-foot-high sand banks above Lake Superior, is one of two perched dune systems on the Great Lakes; within these dunes live unique plant communities resulting from geomorphic processes.

3. Twelve miles of unspoiled and undeveloped Lake Superior beach contrast with the Pictured Rocks cliffs and Grand Sable Dunes.

4. Bedrock geology and glacial landforms provide significant topographic relief marked by streams, inland lakes, and a diversity of associated vegetation.

5. The shoreline offers extraordinary and inspirational scenic vistas of Lake Superior, which has the largest surface area of any fresh water lake on earth.

6. Pictured Rocks National Lakeshore offers a variety of affordable year-round recreational opportunities for appropriate public use.

7. Within a distinct area, the lakeshore contains a spectrum of cultural resources focused on the human use of Lake Superior and its shoreline.

8. Lying in a transition zone between boreal and eastern hardwood forest, the lakeshore's scientifically recognized assemblage of flora and fauna is representative of associations unique to the Lake Superior Basin.

9. Pictured Rocks National Lakeshore is the only national park system area with a legislated buffer zone.

Under the National Park Service's Organic Act of 1916 (Organic Act) (16 U.S.C. 1 et seq. ) Congress granted the NPS broad authority to regulate the use of the Federal areas known as national parks. In addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the Secretary of the Interior, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks * * *”.

16 U.S.C. 1a-1 states, “The authorization of activities shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established * * *”.

As with the United States Coast Guard, NPS's regulatory authority over waters subject to the jurisdiction of the United States, including navigable waters and areas within their ordinary reach, is based upon the Property and Commerce Clauses of the U.S. 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 in Pictured Rocks National Lakeshore began around 1990. Before the ban, use was only allowed on Lake Superior, and it was relatively low. Restrictions on inland lakes precluded PWC use on those lakes. Pictured Rocks National Lakeshore has jurisdiction on the surface water of Lake Superior extending 0.25 mile from the shoreline. This final rule would only apply to the waters under the lakeshore's jurisdiction. In addition, Michigan's Personal Watercraft Safety Act of 1998 (Public Act 116) stipulates regulations for PWC use. One of the regulations is that personal watercraft cannot operate within 200 feet of the shoreline unless traveling perpendicular to shoreline at no-wake speed.

Before the ban, PWC operation on Lake Superior was concentrated between Sand Point and Chapel Beach, along the Lake Superior shoreline. The eastern side of the park had little PWC use. Rivers and streams within Pictured Rocks National Lakeshore are not accessible to personal watercraft due to extremely small size, shallow depths, and rocky bottoms. On inland lakes within the Lakeshore boundaries, the size of powerboat engines is restricted to two- and four-stroke internal combustion engines of 50 hp or less, essentially eliminating PWC use.

Before the ban was imposed, most PWC users at the park were from within 100 miles of the lakeshore. Based on staff observations, some users came from other parts of Michigan, Wisconsin, and Minnesota, and perhaps Ohio and Illinois. There are many other areas for water-based recreation in this portion of the Upper Peninsula, including State parks, national forests, and other lakes with public access. Such areas include other portions of Lake Superior (excluding the shore of Grand Island), many lakes within the Escanaba River and Lake Superior State Forests, several lakes within the Hiawatha National Forest, Manistique Lake, South Manistique Lake, and Lake Michigan.

To document actual PWC use and to provide peak usage information, staff conducted a survey at the Sand Point launch July 4-8, 2001. During the five-day survey, small craft warnings prohibited personal watercraft on two days. PWC use for the remaining three days ranged from 8 to 13 personal watercraft each day. Thus, the peak number of personal watercraft that were operating before the ban in the lakeshore was 13 per day—6.6 from the Sand Point launch and 6.6 from the Munising boat ramp.

Before the ban, because personal watercraft were also launched from the Munising boat ramp on the west end of the lakeshore, the city was contacted to determine launch numbers. However, specific data were not available. Based on discussions with lakeshore staff, the number of personal watercraft launched from Munising was assumed to be the same as the number launched from Sand Point. Based on the analysis of the survey and assumptions, 6.6 personal watercraft would be launched from the Munising boat ramp each day during July and August weekends. All of these personal watercraft would likely travel within the lakeshore's jurisdiction.

Grand Marais, on the east end of the lakeshore, also has boat launch facilities. According to city staff, very few personal watercraft are launched—perhaps 12 all summer, for an average of 1 personal watercraft every seven days. This analysis assumes that on average no personal watercraft would be launched from Grand Marais during July and August.

The low PWC numbers are primarily a result of the cold water temperature, cool ambient air temperature, changeable weather conditions, and heavy winds and wave action. The average PWC trip within Pictured Rocks National Lakeshore lasted between three and five hours, from mid morning to mid or late afternoon. State regulations restrict operations to the hours of 8 a.m. to one hour before sunset. Most PWC users cruised and sometimes raced along the shoreline, explored the rock cliffs up close, jumped the wakes of tour boats (which make 4-5 foot swells), and traveled to beach destinations and spent the day or afternoon on the beach. Fewer PWC users assembled in pontoons and did short trips or went to beach areas. A very small number may have done day trips between Munising and Grand Marais (40+ miles). Only a few users asked about PWC camping opportunities.

Before the ban, PWC users were distributed throughout the lakeshore. According to NPS staff, most personal watercraft were operated on the west end of the lakeshore. This is consistent with the launch locations and predicted launch numbers. Few PWC operators traveled the entire length of the lakeshore due to the long distance, rough waters, and potential for changing weather.

Generally, there is very little information specific to visitor concerns about PWC use. Visitor surveys were conducted for the winter of 1999-2000 and for the summer of 2000 (with questions specific to PWC use in the national lakeshore). A majority of the respondents to the survey supported or strongly supported restricting PWC use to designated areas. No PWC accidents have been observed or reported to NPS staff. Five incident reports have been documented, one for operating too close to other motorcraft, two for operating too close to swimmers, and two for operating illegally on inland lakes. There are no observations or reports related to natural resource concerns.

On November 15, 2004, the National Park Service published a Notice of Proposed Rulemaking (NPRM) for the operation of PWC at Pictured Rocks National Lakeshore (69 FR 65556). The proposed rule for PWC use was based on alternative B (one of three alternatives considered) in the Environmental Assessment (EA) prepared by NPS for Pictured Rocks National Lakeshore. The environmental assessment was available for public review and comment for the period August 1 through November 15, 2002. An errata sheet was prepared to address the changes to alternative B, the preferred alternative. To request a copy of the document and the errata sheet contact Superintendent, Pictured Rocks National Lakeshore, N8391 Sand Point Road, P.O. Box 40, Munising, MI 49862-0040. A copy of the Environmental Assessment and the errata sheet may also be found at http://www.nps.gov/piro/pwc/pwc.htm.

The purpose of the environmental assessment was to evaluate a range of alternatives and strategies for the management of PWC use at Pictured Rocks National Lakeshore to ensure the protection of park resources and values while offering recreational opportunities as provided for in the National Lakeshore's enabling legislation, purpose, mission, and goals. The assessment assumed alternatives would be implemented beginning in 2002 and considered a 10-year period, from 2002 to 2012.

The environmental assessment evaluated three alternatives addressing the use of personal watercraft at Pictured Rocks National Lakeshore. The errata sheet modified one of the alternatives, Alternative B. Each alternative is described below:

Alternative A—Under alternative A, PWC use would continue as was provided and managed within Pictured Rocks National Lakeshore before the ban. PWC use would be unrestricted on Lake Superior from the lakeshore's 0.25-mile jurisdictional boundary to the lakeshore's shoreline. Launch and retrieval of personal watercraft would be permitted only at the Sand Point boat ramp on Lake Superior. PWC users would be able to land anywhere along the shoreline. PWC users would continue to abide by Michigan's Personal Watercraft Safety Act of 1998 (Public Act 116) and related regulations.

Alternative B—Alternative B was modified by the errata dated October 2003. Under the modified alternative B, PWC use would be allowed to operate on the waters of Lake Superior within the boundaries of Pictured Rocks National Lakeshore from the western boundary of the lakeshore up to the east end of Miners Beach.

PWC use would be allowed under the following conditions: Personal watercraft may only be launched from a designated launch site at Sand Point, PWC users may beach their craft only at Sand Point Beach and Miners Beach, and PWC users may not launch or operate in any other area of the lakeshore. The superintendent of the park may temporarily limit, restrict, or terminate access to areas designated for PWC use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives. PWC use would be restricted at specific locations during the permitted use of ethnographic resources. Boat patrols would be conducted in the vicinity of the ethnographic resource use in order to reduce the potential for PWC-related intrusion into the ceremonial activity. PWC users would continue to abide by Michigan's Personal Watercraft Safety Act of 1998 (Public Act 116) and related regulations, as identified in alternative A. This alternative would allow PWC use along the Lake Superior shoreline within the western end of the park, covering approximately 8 miles of shoreline. The numbers of personal watercraft would not be restricted.

No-Action Alternative—Under the no-action alternative, the National Park Service would take no action to reinstate the use of personal watercraft at Pictured Rocks National Lakeshore and no special rule would be promulgated to continue personal watercraft use. Under this alternative, NPS would continue to prohibit personal watercraft use at Pictured Rocks National Lakeshore begun on April 22, 2002.

As stated in the NPRM, alternative B is the park's preferred alternative because it best fulfills the park responsibilities as trustee of the sensitive habitat; ensures safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attains a wider range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences. This final rule contains regulations to implement alternative B at Pictured Rocks National Lakeshore.

A proposed rule was published in the Federal Register for public comment on November 15, 2004, with the comment period lasting until January 14, 2005 (69 FR 65556). The National Park Service (NPS) received 600 timely written responses regarding the Environmental Assessment (EA) and proposed regulation. Of the responses, 387 were form letters in 6 different formats, and 213 were separate letters. Of the 213 separate letters, 202 were from individuals, 8 from organizations, one from a congressional affiliation, and 2 from government agencies. 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.

1. One commenter stated that the Environmental Assessment (EA) failed to use the best data available and picked alternative B without adequate scientific justification.

NPS Response: Where data was lacking, best professional judgment prevailed, using assumptions and extrapolations from scientific literature, other park units where personal watercraft (PWC) are used, and personal observations of park staff. The NPS believes that the EA is in full compliance with the court-ordered settlement and that the Finding of No Significant Impact (FONSI) shows that modified alternative B (Continued PWC use under special NPS regulation with management restrictions) is the preferred alternative and that decision has been adequately analyzed and explained.

2. The American Land Alliance suggested that the EA fails to analyze the surrounding opportunities for PWC use in the Upper Peninsula, because there are ample opportunities outside the park for PWC use, including state and private lands.

NPS Response: The location of nearby launching facilities is described in several sections of the EA and includes the Munising boat ramp and Grand Marais public launch, as well as the lakeshore's Sand Point launch. The EA notes that there are many other areas for water-based recreation in the central Upper Peninsula, including state parks, national forests, and other lakes with public access (See page 51 of the EA, Affected Environment—Visitor Use and Experience). There is a text change on the errata sheet adding other areas available for water-based recreation.

3. One commenter stated that the labeling of the alternative prohibiting PWC as the “no-action alternative” is misleading since PWC have been used without restriction for many years at the lakeshore. The commenter suggested issuing a revised EA with a clear designation of a No PWC alternative, and providing a new comment period after the revised EA is released.

NPS Response: The NPS Director's Order #12 states that a full range of alternatives must be examined and that “the alternatives carried forward for analysis must meet project objectives to a large degree, although not necessarily completely.” Under a full range of alternatives, the no-action alternative is developed as a viable choice in the range of alternatives and it sets a baseline of existing impact continued into the future against which to compare impacts of action alternatives. The No-Action alternative is a continuation of existing conditions and activities, which at the time the environmental analyses were being conducted was a ban on personal watercraft.

4. Two commenters stated that the EA fails to meet the requirements of NEPA because a reasonable range of alternatives was not evaluated.

NPS Response: A summary of the personal watercraft litigation is contained under “Personal Watercraft Regulatory Framework” in the “Purpose and Need” chapter of the EA. The NPS had to comply with the court order, which resulted from Bluewater v. Stanton, and assess the impacts of personal watercraft on those resources specified by the judge, as well as other resources that could be affected. NPS believes a reasonable range of alternatives was evaluated. After analyses were done for every applicable impact topic with the best available data and input from the public was analyzed, Pictured Rocks National Lakeshore management selected modified alternative B as its preferred alternative. Implementation of Alternative B in the final rule will allow PWC use west of Miners Beach.

5. 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: No part of the settlement agreement or NPS analysis of PWC use has violated or overturned Pictured Rocks National Lakeshore's enabling legislation. Both the personal watercraft settlement agreement and the authorizing legislation for Pictured Rocks National Lakeshore were considered when developing alternatives for the EA. The objective of the EA, as described in the “Purpose and Need” chapter of the EA, was derived from the enabling legislation for Pictured Rocks National Lakeshore. As further stated in this 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 Bluewater Network and the NPS.

As a result, the alternatives presented in the EA protect resources and values while providing recreational opportunities at Pictured Rocks National Lakeshore. As required by NPS policies, the impacts associated with personal watercraft and other recreational uses are evaluated under each alternative to determine the potential for impairment to park resources. The NPS finds that implementation of the modified preferred alternative (alternative B) in the final rule will not result in impairment of park resources and values for which the Pictured Rocks National Lakeshore was established.

6. One commenter suggested that the EA does not comply with the court settlement with Bluewater Network, and is out of compliance with the agreement.

NPS Response: 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 court order and has assessed the impacts of personal watercraft on those resources specified by the judge, as well as other resources that could be affected. This analysis was completed for every applicable impact topic with the best available data, as required by 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 EA is in full compliance with the court-ordered settlement and that the FONSI shows that the decision to implement modified alternative B (Continued PWC use under special NPS regulation with management restrictions) as the preferred alternative in the final rule has been adequately analyzed and explained.

7. One commenter stated that PWC have not been recognized by the U.S. Coast Guard as Class A vessels, and that the Coast Guard has refrained from defining PWC.

NPS Response: The NPS has chosen to define PWC and our definition is as follows: Personal watercraft refers to a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull.

8. One person commented that the EA incorrectly references the Michigan Personal Watercraft Safety Act of 1998 regarding the prohibition of PWC ‘through submerged and emergent vegetation.’

NPS Response: The statement in the EA was incorrect and has been updated on the errata sheet as follows: Guiding Regulations and Policies, second paragraph, change last sentence to read “Personal watercraft are not allowed to operate in waters where the water depth is less than two feet unless the watercraft is being operated at slow, no-wake speed or is being docked or launched.”

9. Several commenters stated that the preferred alternative is likely to violate the Organic Act by sacrificing full protection of park resources if PWC use is allowed within the park. Further, the draft regulations appear to violate the NPS mandate to fully protect park resources by allowing the use of damaging PWC on park waters.

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 Pictured Rocks National Lakeshore resources and values can be found under “Impairment Analysis” in the “Methodology” section of the EA.

Impact thresholds are not arbitrary; rather, they are established by a review of applicable literature, consultation with subject matter experts, applicable regulatory standards, and best professional judgment. The methods for establishing specific thresholds are disclosed under each impact topic.

The National Park Service has determined that, under the modified preferred alternative (alternative B), as implemented in this final rule, there will be no major negative impacts on park resources or values.

10. One commenter stated that PWC use estimates used in the EA are inaccurate. Specifically, the launch points within the lakeshore are unmonitored, so the number of PWC that use the lakeshore, along with trends in PWC use, are unknown.

NPS Response: See Errata Sheet, Table 11, for the EA: The totals have been corrected and do not substantially change NPS conclusions.

The 2000 and 2001 data indicate a 1% increase in PWC registration. While PWC registration increased by as much as 19% in 1996, the past five years of data exhibit a substantial decreasing trend in PWC registration in the state. This trend is also confirmed by industry sales data ( http://www.pwia.org/Abo_PWC.htm ). In consultation with park staff and through review of national data, the NPS believes that a 2% annual increase in PWC use at the lakeshore is appropriate.

Historical use of PWC is described on pages 51 and 52 of the “Affected Environment” section of the EA. The NPS used all available data to extrapolate PWC use trends within the lakeshore. PWC visitor use trends were determined using data available from the park, discussions with staff, as well as discussions with the Cities of Munising and Burt Township, which oversee local public launch facilities. The best practicable data was used and the NPS is confident that the analysis provides a reasonable evaluation of potential PWC use within the lakeshore.

11. One commenter stated that there is an error in Table 12: Peak Daily Visitor Use Numbers in the EA, because the whole chart is based on an overly simplistic interpretation of the PWC/Motorboat relationship. When segment three states that there will be zero “PWC users,” the model accidentally extrapolates that there will be zero “other motorboats” as well. In addition, the model should have predicted some amount of growth in kayaking and canoeing over the next 10 years.

NPS Response: Alternative B and the no-action alternative assume that all motorized craft would be excluded from areas designated as primitive under a draft or final general management plan. The potential primitive area would extend 0.25 mile into Lake Superior from the shoreline, between Spray Falls and 1.25 miles east of Sevenmile Creek. The modified preferred alternative (alternative B), as implemented in this final rule, further restricts PWC use by discontinuing PWC use east of Miners Beach.

The number of sea kayakers and canoeists was estimated to increase 5% over the next ten years. A more accurate estimate, per recent discussions with park staff, would be an increase of 5% per year over the next 10 years. Thus, the number of canoeists/kayakers is estimated to increase from 45 persons in 2002 to 73 persons in 2012. These visitors would be distributed throughout the lakeshore. Although this is a relatively large increase in use as compared to the numbers evaluated in the EA, it would not change the evaluation that was completed. As indicated in the Visitor Experience section (page 107 of the EA), most non-motorized craft are concentrated closer to shore, such that interactions between these users and PWC would be infrequent. Additionally, PWC present near the shore are required to travel at flat-wake speed and would have minimal impact on non-motorized watercraft in that area.

12. One commenter stated that impacts to water quality from PWC are underestimated. Polycyclic Aromatic Hydrocarbons (PAHs) can remain suspended in the water column or deposited in sediment for years after initial deposition. Even minor, short- term oil spills can cause detrimental damage to aquatic wildlife. Exposure to hydrocarbon (HC) pollution can interfere with biological processes of the lakeshore's plants and wildlife.

NPS Response: The protection of water quality within the Pictured Rocks National Lakeshore has been addressed in the EA in a conservative evaluation of surface water quality impacts. 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 motorboat high-use-day loadings of chemicals identified as constituents of gasoline, and water quality benchmarks, it is possible to identify potentially unacceptable impacts to human health or the environment. Chronic water quality benchmarks protective of aquatic populations and protective of human health were acquired from various sources, including USEPA water quality criteria. Potential impacts to wildlife and plants from personal watercraft were addressed in other sections of the EA.

This comment appears to have several errors in its assertions regarding the water quality impact section of the EA: None of the three alternatives is expected to have a “moderate to major” impact as stated in the comment. All water quality impacts from personal watercraft are expected to be negligible to minor. Despite the fact that estimated water concentrations of individual PAHs are well below water quality benchmarks, cumulative impacts from PWC and motorboat use were judged to be “minor to moderate” when the potential for phototoxicity from total PAHs is considered.

This comment also misquotes the EA as follows: “* * * most PWC gas and oil spills ‘volatize’ into the atmosphere * * *”. The EA for Pictured Rocks National Lakeshore considers the range of organic compound behavior in water on page 65 of the EA:

13. One commenter stated that the analysis represents an outdated look at potential emissions from an overstated PWC population of conventional two-stroke engines, and underestimated the accelerating changeover to four-stroke and newer two-stroke engines. The net effect is that the analysis overestimates potential PWC HC emissions, including benzene and PAHs, to the water. In addition, the water quality analysis uses assumptions that result in overestimation of potential PWC HC emission to the water. For example, the analysis states that benzo(a)pyrene concentrations in gasoline can be “up to 2.8 mg/kg.”

NPS Response: The NPS recognizes that the assumption of all personal watercraft using 2-stroke engines in 2002 is conservative but believes it was appropriate to be protective of park resources. The assumption is consistent with emission data available in California Air Resources Board (CARB) (1998) and Bluewater Network (2001). The emission rate of 3 gallons per hour at full throttle is a mid-point between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per hour for an average 2000 model year personal watercraft (Personal Watercraft and Bluewater Network 2001). The assumption also is reasonable in view of the initiation of production line testing in 2000 (EPA 1997) and expected full implementation of testing by 2006 (EPA 1996).

Reductions in emissions used in the water quality impact assessment are in accordance with the overall hydrocarbon emission reduction projections published by the EPA (1996). EPA (1996) estimates a 52% reduction by personal watercraft by 2010 and a 68% reduction by 2015. The 50% reduction in emissions by 2012 (the future date used in the EA) is a conservative interpolation of the emission reduction percentages and associated years (2010 and 2015) reported by the EPA (1996) but with a one-year delay in production line testing (EPA 1997).

The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in the calculations is considered conservative, yet realistic, since it is within the range of concentrations measured in gasoline, according to Gustafson et al. (1997).

14. One commenter stated that the “cleaner and quieter” PWC will still cause significant damage to the environment and wildlife because PWC produce pollutants such as PAHs that are toxic to plants and animals even at minute levels.

NPS Response: Personal watercraft and outboard motorboat engines discharge both unburned and burned gasoline and oil. In fact, it was shown in the EA that because more outboards than personal watercraft are used in the lakeshore, the outboards contributed more of the organic compounds evaluated (PAHs and benzene) than personal watercraft. The new engine technology, including four-stroke engines and two-stroke direct injection engines, substantially reduces the emissions of most pollutants to the water and the air. As older personal watercraft are replaced with new, cleaner models, the emission rates of pollutants will decrease.

It is agreed that some research indicates that PAH toxicity can be enhanced by exposure to ultraviolet radiation in oligotrophic lakes having high light penetration (Oris et al. 1998). Limited data indicate that, under these conditions, PAHs may have toxic effects on fish and zooplankton at very low concentrations (less than 1 μg/L). Conversely, some PAHs may be degraded via photodegradation or microbial degradation (Fasnacht and Blough 2002; Albers 2002). Impacts to water quality from the emission of selected PAHs present in gasoline emissions (benzo(a)pyrene, naphthalene, and 1-methyl naphthalene) were evaluated in the EA. Also, the potential for increased toxic effects of PAHs is recognized and discussed qualitatively in the impact analyses, where appropriate.

15. One commenter stated that Lake Superior was designated by the U.S. and Canada Joint Commission as a zero discharge body of water, and the considerable amount of pollution discharged by PWC comprises more than “zero” discharge.

NPS Response: The impacts of both noise and discharge of burned and unburned fuel by personal watercraft were evaluated in the EA. In 1991, an International Joint Commission recommended that Lake Superior be a “zero discharge” demonstration zone (GLC 2003). However, the latest listing (March 2003) of priorities by the Great Lakes Commission in “2003 Great Lakes Program: Restore the Greatness” does not mention zero discharge as a priority for the coming year. The only current reference to zero discharge found on the Great Lakes Commission Web site ( http://www.glc.org ) is for zero discharge of aquatic nuisance species that are often carried in ship ballast water that is dumped after the ships enter the Great Lakes. Zero discharge of fuel from recreational boating does not appear to be an achievable objective since one of every three registered recreational vessels in the United States is found in the Great Lakes (GLC 2003). In response to the EPA emission reduction regulations (EPA 1996, 1997), the discharge of fuel and its associated pollutants by personal watercraft and other motorboats is being reduced. The net effect of this reduction is factored into the EA impact analysis of water quality.

16. One commenter stated that the analysis does not properly account for the rapid engine conversion that is occurring due to the phase-in of cleaner running engine technologies.

NPS Response: A conservative approach was used in the analysis, since the numbers of PWC that have already converted to four-stroke engines are not known. In addition, the Environmental Protection Agency (EPA) model takes into account the reduction in emissions over time. Even with the conservative approach, the analysis for alternative B presented in the EA indicates that current PWC use at Pictured Rocks National Lakeshore would result in negligible to moderate impacts to air quality.

17. One commenter indicated that direct-injected two-stroke engines are dirtier than four-stroke engines.

NPS Response: The comment is correct in stating the relationships between emissions of two-stroke direct injection and four-stroke PWC engines. EPA NONROAD model factors differ from those of the California Air Resources Board (CARB). As a result of the EPA rule requiring the manufacturing of cleaner PWC engines, the existing carbureted two-stroke PWC will, over time, be replaced with less-polluting PWC models. This replacement, with the anticipated resultant improvement in air quality, is parallel to that experienced in urban environments as the automobile fleet becomes cleaner over time.

18. One commenter stated that the analysis fails to mention the impact of PWC permeation losses on local air quality.

NPS Response: Permeation losses of volatile organic compounds (VOCs) from personal watercraft were not included in the calculation of air quality impacts primarily because these losses are insignificant relative to emissions from operating watercraft. Using the permeation loss numbers in the comment (estimated to be half the total of 7 grams of losses per 24 hours from the fuel system), the permeation losses per hour from fuel systems are orders of magnitude less than emissions from operating personal watercraft. Therefore, including permeation losses would have no effect on the results of the air quality impact analyses. Also, permeation losses were not included because of numerous related unknown contributing factors, such as the number of personal watercraft refueling at the lakeshore and the location of refueling (inside or outside of the airshed).

19. One commenter stated that none of the air quality monitoring sites used as part of the analysis are located at the lakeshore, and that the most recent data available to the NPS are from 1999.

NPS Response: The statewide air quality monitoring sites are located near areas where air quality is known or likely to be impaired. As the comment states, data used in the EA were obtained from the 1999 Air Quality Report which, at time of preparation, was the best published regional source of general air quality information. Current site-specific background air monitoring data were also reviewed, available from the State of Michigan's website http://www.michigan.gov/deq/0,1607,7-135-3310_4104---,00.html. The closest monitoring site is for PM 2.5 located at Traverse City, Michigan. It is agreed that monitoring sites distant from the location do not provide representative data for Pictured Rocks National Lakeshore; however, they are the nearest available sources of data. The absence of closer State monitoring sites is indicative of the good overall air quality in the area and attainment status with respect to all national ambient air quality standards. No health or environmental risks are identified by the Michigan Department of Environmental Quality that would warrant more frequent or intensive monitoring in the area. The EA analyzed air impacts by assessing the effects of predicted pollutant emissions, rather than measuring ambient air conditions, due to the lack of available site-specific monitoring data and cost and uncertainty factors inherent in obtaining and interpreting such data. In this context, the NPS takes the position that “appropriate consideration” has been given to air quality impacts from PWC.

20. One commenter stated that the EA fails to analyze new four-stroke engine technology. The PAH concentrations derived from worst-case modeling are orders of magnitude below the permissible exposure limits established by the Occupational Safety and Health Administration (OSHA) and National Institute for Occupational Safety and Health (NIOSH); therefore, continued PWC use would not pose any adverse health risks for park visitors under worst-case airborne PAH concentrations.

NPS Response: The criteria for analysis of impacts from PWC to human health are based on the National Ambient Air Quality Standards (NAAQS) for criteria pollutants, as established by the U.S. EPA under the Clean Air Act, and on criteria pollutant annual emission levels. This methodology was selected to assess air quality impacts for all NPS EAs to promote regional and national consistency, and identify areas of potential ambient standard exceedances. PAHs are not assessed specifically as they are not a criteria pollutant. However, they are indirectly included as a subset of Total Hydrocarbons (THC), which are assessed because they are the focus of the EPA's emissions standards directed at manufacturers of spark ignition marine gasoline engines (See 61 FR 52088; October 4, 1996). Neither peak exposure levels nor NIOSH nor OSHA standards are included as criteria for analyzing air quality related impacts, except where short-term exposure is included in a NAAQS.

As stated above, the methodology for assessing air quality impacts was based on a combination of annual emission levels and the NAAQS, which are aimed at protection of the public. OSHA and NIOSH standards are intended primarily for workers and others exposed to airborne chemicals for specific time periods. The OSHA and NIOSH standards are not as suitable for application in the context of local and regional analysis of a park or recreational area as are the ambient standards, nor are they intended to protect the general public from exposure to pollutants in ambient air.

The “Kado Study” (Kado et al. 2000) presented the outboard engine air quality portion of a larger study described in Outboard Engine and Personal Watercraft Emissions to Air and Water: A Laboratory Study (CARB 2001). In the CARB report, results from both outboards and personal watercraft (two-stroke and four-stroke) were reported. The general pattern of emissions to air and water shown in CARB (2001) was two-stroke carbureted outboards and personal watercraft having the highest emissions, and four-stroke outboard and personal watercraft having the lowest emissions. The only substantive exception to this pattern was in nitrogen oxide (NO X ) emissions to air: Two-stroke carbureted outboards and personal watercraft had the lowest NO X emissions, while the four-stroke outboard had the highest emissions. Therefore, the pattern of emissions for outboards is generally applicable to personal watercraft and applicable to outboards directly under the cumulative impacts evaluations.

21. One commenter expressed concern that PWC emissions were declining faster than forecasted by the EPA. As the Sierra Report documents, in 2002, HC+ NO X 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 incorporate into the 1996 Spark Ignition Marine Engine rule were used as the basis for the assessment of air quality, and not the Sierra Research data. It is agreed that these data show a greater rate of emissions reductions than the assumptions in the 1996 rule and in the EPA's NONROAD Model, which was used to estimate emissions. However, the level of detail included in the Sierra Research report has not been carried into the EA for reasons of consistency and conformance with the model predictions. Most states use the EPA's NONROAD Model for estimating emissions from a broad array of mobile sources. To provide consistency with state programs and with the methods of analysis used for other similar NPS assessments, the NPS has elected not to base its analysis on focused research such as the Sierra Report for assessing PWC impacts.

It is agreed that the Sierra Research report provides data on “worst case” scenarios. However worst case or short-term scenarios were not analyzed for air quality impacts in this or other NPS EAs.

It is agreed that the relative quantity of HC+ NO X are a very small proportion of the county-based emissions and that this proportion will continue to be reduced over time. The EA takes this into consideration in the analysis.

CARB certified PWC may be used; however, the degree of certainty of overall use of this engine type nationwide is not well established. For consistency and conformity in approach, the NPS has elected to rely on the assumptions in the 1996 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.

22. One commenter stated that continued PWC use in the Pictured Rocks National Lakeshore will not result in sound emissions that exceed the applicable federal or state noise abatement standards, and technological innovations by the PWC companies will continue to result in substantial sound reductions.

NPS Response: The NPS concurs that on-going and future improvements in engine technology and design will likely further reduce the noise emitted from PWC. However, given the ambient noise levels at the lakeshore, it is unlikely that the improved technology could reduce all impacts to negligible adverse, particularly at the Sand Point launch.

23. One commenter cited noise testing conducted at Glen Canyon National Recreation Area (NRA) that indicated the maximum noise levels for PWC were actually lower than the maximum noise levels for other motorized vessels. In particular, the levels for PWC at 25 meters (82 feet) were approximately 68 to 76 A-weighted decibels (dB), whereas the levels for other motorized vessels at 82 feet were approximately 64 to 86 A-weighted decibels.

NPS Response: A correction has been included in the errata sheet to indicate that one PWC would emit 68 to 76 A-weighted dB at 82 feet. The reasons for assuming that PWC operate in pairs at the National Lakeshore are stated in the EA, and are based on staff observation and safety issues related to operating small watercraft at the park. Based on the PWC noise levels from the Glen Canyon study, two PWC would emit 66 to 77 dB at 82 feet, 65 to 75 dB at 100 feet, and 59 to 69 dB at 200 feet. The noise levels of two PWC traveling together would be less than the NPS noise limit of 82 dB at 82 feet for all alternatives. Given that ambient sound levels range from 22 dBA to 55 dBA in the lakeshore, the operation of PWC 200 feet from shore would still have negligible to minor adverse effects on the soundscape. In most locations natural sounds would prevail and motorized noise would be very infrequent or absent. At destinations such as the Sand Point launch and Miners Castle, natural sounds would predominate but motorized noise could be heard occasionally throughout the day. The correction noted above will not change the impact determinations identified in the original analysis.

24. One commenter stated that the EA has no site-specific support regarding the conclusion that PWC will inflict “short-term negligible impacts” upon the lakeshore's soundscapes and “negligible adverse impacts” upon visitor experience. The commenter stated that most of the public comments received on the lakeshore's draft General Management Plan (GMP) complained about PWC noise and urged that the machines be banned.

NPS Response: The effects of PWC on soundscapes were evaluated for site-specific areas, such as Sand Point, and general use areas, such as backcountry locations. The effects of PWC noise were determined to be negligible adverse to minor adverse, depending on the alternative and location. While many comments on the GMP were related to PWC noise, commenters also mentioned noise from chain saws, snowmobiles, and cars. Additionally, the visitor use survey conducted in the summer of 2000 provided the following results: on a scale of 1 (not a problem) to 5 (very serious problem), backcountry visitors ranked “PWC disturbing backcountry experience” as 1.6 (no problem to slight problem). Frontcountry users identified PWC disruption as 1.4 on the same scale. Overall, more than 80% of the 228 persons responding to this question indicated that PWC operation within the lakeshore was “no problem.” The NPS is confident that the soundscape analysis portrays an accurate description of the effects of PWC operation within the lakeshore.

25. One commenter stated that the impact of PWC on non-motorized visitors was grossly underestimated.

NPS Response: As stated previously, the summer visitor survey indicated that over 80% of the respondents, including backcountry visitors, identified PWC disturbance as “no problem.” Approximately 8% of the 228 respondents identified PWC disturbances as a “serious or very serious” problem. The NPS recognizes that the degree to which a visitor is disturbed is a function of the timing, duration, and character of the PWC activity, as well as the visitor's personal perceptions of PWC use. Based on the data evaluated, the NPS is confident that the impact evaluation provides a reasonable estimate of PWC impacts on soundscapes and visitor experience.

26. One commenter stated that PWC use and human activities associated with their use may not be any more disturbing to wildlife species than any other type of motorized or non-motorized watercraft. The commenter cites research by Dr. Rodgers, 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, and that PWC posed less of a disturbance than other vessel types. Dr. Rodgers' research clearly shows that there is no reason to differentiate PWC from motorized boating based on claims on wildlife disturbance.

NPS Response: The NPS agrees that some research indicates that personal watercraft are no more apt to disturb wildlife than are small outboard motorboats; however, disturbance from both PWC and outboard motor boats does occur. Dr. Rodgers recommends that buffer zones be established for all watercraft, creating minimum distances between boats (personal watercraft and outboard motorboats) and nesting and foraging waterbirds. As part of the Michigan Personal Watercraft Safety Act, PWC operating within 200 feet of the shoreline of any Great Lake must travel perpendicular to the shore and operate at a flat-wake speed. 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.

In addition, the EA was not conducted to determine if personal watercraft caused more environmental damage to park resources than other boats, but rather to determine if personal watercraft use was consistent with the national lakeshore's enabling legislation and management goals and objectives. The alternatives listed and the determination of their consequences was based upon the best information available.

27. One commenter stated that PWC cause lasting impacts to fish and wildlife. Two-stroke engines have been shown to produce pollutants that cause significant damage to aquatic plants and fish.

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 that increased efficiencies in automobile engines, combined with catalytic converters and other technologies, decreased the amount and types of automobile exhaust emissions. EPA-sponsored evaluations of different personal watercraft engine designs and emissions concluded that emission reductions would result with implementation of the EPA emission standards for marine engines. The modified preferred alternative provides for further protection of wildlife in the lakeshore. Phasing in of new personal watercraft technology under the modified preferred alternative (alternative B) will reduce impacts to aquatic and shoreline species by reducing the discharge of fuel components into the water. These 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 consist of dozens of different chemical compounds, each of which has substantially different toxicity characteristics in water, sediment, and soils, and toxicity varies dramatically among different fish and wildlife species. The ecological toxicity analysis for PAHs reported in the EA explains the chemical, physical, and biological conditions that were used to conduct the assessment of PAH effects to fish species.

28. One commenter stated that the EA lacks site-specific data on PWC impacts to threatened and endangered species.

NPS Response: The scope of the EA did not include site-specific surveys for species with the potential to occur at Pictured Rocks National Lakeshore. Potential for the occurrence and the location of special status species at Pictured Rocks National Lakeshore was based on existing surveys and studies conducted in the park in addition to input by park staff and federal and state agencies responsible for special status species management and protection.

Identification of state and federally listed species was accomplished through discussions with park staff and informal consultation with U.S. Fish and Wildlife Service. Primary steps in assessing impacts on listed species were to determine (1) which species are found in areas likely to be affected by management actions described in the PWC alternatives, (2) current and future use and distribution of PWC by alternative, (3) habitat loss or alteration caused by the alternatives, and (4) displacement and disturbance potential of the actions and the species' potential to be affected by PWC activities.

The information used in the analysis was obtained through best professional judgment of park staff and experts in the field and by conducting a literature review.

Documentation of the occurrence and locations of federal and state rare, threatened and endangered species at Pictured Rocks National Lakeshore was provided by National Park Service through several studies and surveys that have been conducted at the park. A list of federal and state protected species is provided in Table 6 in the EA.

29. The U.S. Fish and Wildlife Service commented that the Grand Sable Dunes site was last verified by the Michigan Natural Features Inventory (MNFI) in 1989, and recommended that the current presence of Pitcher's thistle be verified.

NPS Response: The location of Pitcher's thistle described in the EA is based on discussion with park staff and is current. Park staff will advise the MNFI as requested.

30. The U.S. Fish and Wildlife Service (USFWS) commented that the “not likely to adversely affect” determination for both action alternatives for the gray wolf, bald eagle, and Pitcher's thistle suggests that there are beneficial, insignificant, or discountable effects of the proposed actions on these species. These effects are not clear in the EA. The USFWS stated that the EA seems to make a better case that the alternatives would have no effect on these three species, and suggested the park considers these determinations and provides support when the park requests Section 7 consultation with the USFWS office.

NPS Response: The determination of “not likely to adversely affect” was made based on the fact that, while PWC may provide access to locations where threatened/endangered species may be present, the likelihood of having an effect is extremely unlikely to occur. The errata has been updated to reflect a “no effect” determination for the gray wolf and Pitcher's thistle. After further analysis and discussions with U.S. Fish and Wildlife Service staff, the “not likely to adversely affect” determination for the bald eagle will remain, since the bald eagle's use of the shoreline is limited and known nest sites are located east of Miners Beach, where PWC use would be prohibited. The errata has been updated with further information to support this determination.

31. The U.S. Fish and Wildlife Service suggested that the extent to which bald eagles use the Lake Superior shoreline within Pictured Rocks National Lakeshore be described. If any such use occurs or can be expected to occur in the future, the park should clarify whether PWC use in the lakeshore could affect bald eagles.

NPS Response: Based on discussions with park staff, the bald eagle's use of the Lake Superior shoreline within Pictured Rocks National Lakeshore is limited. Known nest sites are located east of Miners Beach, where PWC use would be prohibited under the preferred alternative. The errata has been updated to reflect this.

32. The U.S. Fish and Wildlife Service stated that NPS must complete Section 7 consultation with the USFWS prior to completing a FONSI. The USFWS concurs that the only federally listed species currently on or near Pictured Rocks National Lakeshore are the piping plover, gray wolf, bald eagle, and Pitcher's thistle.

NPS Response: As indicated on page 96 of the Environmental Consequences section of the EA, Section 7 consultation would be initiated if the NPS determined that actions in the preferred alternative would be “likely to adversely affect” one or more of the federally listed threatened or endangered species identified in the lakeshore. The modified preferred alternative (alternative B) will have no effect on piping plover, Pitcher's thistle, gray wolf, or Lake Huron tansy, and is not likely to adversely affect the common loon, bald eagle or the peregrine falcon. The errata has been updated to reflect a “no effect” determination for the gray wolf. The USFWS concurred with this determination after submitting this comment.

33. One commenter stated that the EA inadequately describes the impacts from PWC to osprey and bald eagle, and underestimates the impacts to the peregrine falcon and common loon, along with other species.

NPS Response: The NPS concurs that some studies have shown that PWC operation in proximity to nesting osprey and other wildlife species can have adverse affects. Studies also indicate that the timing, duration, and character (aggressiveness of PWC operation) of these interactions are important factors in determining the effect. As discussed in the EA (pages 20 and 96-101), state regulations require that PWC operating within 200 feet of the shore must be running perpendicular to the shore at flat-wake speeds. This state regulation minimizes the potential for adverse affects on shoreline wildlife at the lakeshore.

34. The U.S. Fish and Wildlife Service stated that piping plovers currently do not nest on Pictured Rocks National Lakeshore, but at nearby at Grand Marais. Nesting occurred there in 2002 and has occurred there annually for more than 10 years. As the EA indicates, there is the potential for piping plover to use the Pictured Rocks National Lakeshore beach, at least for foraging, if not nesting. The piping plover breeding population has increased in recent years. As the population expands, piping plover may be found in previously unexpected areas. The USFWS recommended annual efforts to survey Pictured Rocks National Lakeshore for the bird. The USFWS also recommended that when the park requests Section 7 consultation, it refer to the appropriate information in the EA that supports the conclusion that interactions between piping plovers and PWC would be extremely limited.

NPS Response: Pictured Rocks National Lakeshore staff will continue to monitor and document piping plover activities within the lakeshore. PWC would not be allowed in the Grand Sable segment, where potential piping plover habitat exists. If plovers ever become established in the western end of the lakeshore, then mitigating actions could be required to minimize any adverse effect from PWC use. The modified preferred alternative will result in “no effect” on future populations of piping plover that may inhabit the lakeshore.

35. One commenter stated that since PWC lack an exposed propeller, they are much more environmentally friendly in shallow water environments. Further, Michigan law prohibits PWC from operating in less than two feet of water and in areas where aquatic rooted vegetation is visible in sensitive wetland areas.

NPS Response: The NPS recognizes that scientists do not agree on the potential for impacts to aquatic vegetation from personal watercraft. However, because of their design, personal watercraft can potentially operate in shallower water than conventional outboard motorboats, and it is not possible to know if all operators fully adhere to manufacturer's recommendations. As described in the EA (pages 103-104), impacts to sensitive shoreline vegetation are expected to be negligible for all alternatives and both years evaluated (2002 and 2012).

36. One commenter stated that the EA failed to adequately assess the safety threat posed to park visitors by PWC use, and failed to analyze existing accident data available from the U.S. Coast Guard.

NPS Response: Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of incidents on the lake are estimated to go unreported. The accident data for the three-year period of 1999 through 2001 displays a consistent pattern and differs from nationally reported results for all watercraft. In the “Visitor Conflicts and Visitor Safety” section of the “Affected Environment” chapter of the EA, it is reported that personal watercraft represent 26 percent of the watercraft on the lake but did not exceed 18 percent of all watercraft accidents over the three-year time period. While personal injury rates for personal watercraft were somewhat higher, they did not exceed 24 percent of all watercraft personal injuries—approximately equal to their representation in the population of all watercraft.

37. One commenter stated that keeping PWC 200 feet from shore is not sufficient to prevent serious loss to those seeking solitude and/or a natural experience. What happens if the number of PWC users increases over the years to a level that is intolerable?

NPS Response: The best available data was used to determine existing and future PWC use in the lakeshore, and was based on a visitor survey, discussion with park staff, and discussion with local launch site operators in Grand Marais and Munising. The analysis indicates that PWC use would have minor adverse impacts to backcountry visitors who seek solitude within the lakeshore. The selection of the modified preferred alternative (alternative B) would result in negligible to moderate beneficial impacts on soundscapes and visitor experience for non-PWC users.

38. One commenter indicated that the EA fails to include the numbers of comments received about PWC noise and offers no comparison of those comments with others regarding noise produced by other recreational pursuits, such as tour boats. Were the noise comments regarding PWC use any more positive or negative than those related to other lakeshore user groups?

NPS Response: The comments received for the GMP regarding noise disturbance from PWC, motorboats, and other recreational users have not been quantified. However, the summer visitor survey conducted in 2000 provides specific data about noise issues within the lakeshore. Over 80% of the survey respondents, including backcountry visitors, identified PWC disturbance as “no problem.” Approximately 8% of the 228 respondents identified PWC disturbances as a “serious or very serious” problem. Likewise, approximately 6% of those surveyed identified motorized boats on Lake Superior “disturbing my backcountry experience” as a “serious or very serious” problem; 4% indicated that too many commercial tour boats on Lake Superior shoreline as a “serious or very serious problem''; and 1% indicated noise from airplanes as a “serious or very serious problem.” Overall, only 2.6% of those surveyed indicated that too much noise on Lake Superior shoreline was a “serious or very serious problem.”

39. One commenter stated that the 1998 Boating Accident Report Database (BARD) estimates reported in the EA are outdated, and that more recent BARD data shows that, despite the increasing number of PWC in use, the number of reported PWC-associated accidents has been declining every year since 1997.

NPS Response: Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of incidents on the lake are estimated to go unreported. The accident data for the three-year period of 1999 through 2001 displays a consistent pattern and differs from nationally reported results for all watercraft. In the “Visitor Conflicts and Visitor Safety” section of the “Affected Environment” chapter of the EA, it is reported that personal watercraft represented 26 percent of the watercraft on the lake but did not exceed 18 percent of all watercraft accidents over the three-year time period. While personal injury rates for personal watercraft were somewhat higher, they did not exceed 24 percent of all watercraft personal injuries—approximately equal to their representation in the population of all watercraft.

40. One commenter stated that, according to Coast Guard statistics, PWC represent roughly 10 percent of all boats, yet are involved in approximately 30 percent of all boating accidents. In addition, nearly 80 percent of PWC accidents are the result of a collision with objects such as another boat, swimmer, or dock.

NPS Response: The concern about PWC operation and safety is discussed in the EA, which provides similar national statistics (page 16) and statistics from the park itself (page 51). Some of the provisions of the preferred alternative, such as increasing the number of areas with flat-wake restrictions, were included to provide a higher level of safe PWC operations and to lessen potential conflicts with other park users.

41. 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: We disagree. Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of watercraft accidents at Fire Island National Seashore are estimated to go unreported.

42. One commenter suggested that all boaters should abide by the restrictions, and that there is no justification for imposing any additional restrictions or requirements on PWC operators based on safety considerations.

NPS Response: The proposed alternatives did not impose additional restrictions or requirements on PWC based solely on safety considerations. The final rule, implementing modified preferred alternative (alternative B), will discontinue PWC use east of Miners Beach. The selection of modified alternative B is based on the evaluation of all issues analyzed in the EA and the public comments received regarding the proposed action.

43. Several commenters stated that the NPS analysis downplayed the threat PWC pose to the visiting public, specifically regarding PWC fire hazards.

NPS Response: According to the National Marine Manufacturers Association, PWC manufacturers have sold roughly 1.2 million watercraft during the last ten years. Out of 1.2 million PWC sold, the U.S. Coast Guard received only 90 reports of fires/explosions in the years from 1995-1999. This is less than 1% of PWC boats reporting 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 recalled 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. The replacement fuel tanks differed from those installed in the watercraft subject to the recall in that the replacement tanks had revised filler neck radiuses, and the installation procedure now also requires revised torque specifications and the fuel system must successfully complete a pressure leak test. Bombardier found that the major factor contributing to PWC fires/explosions was over-torquing of the gear clamp. Bombardier was legally required by the U.S. Coast Guard to fix 9.72% of the recalled models. Out of 125,349 recalls, the company repaired 48,370 units, which 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 have been reduced significantly since the National Marine Manufacturers Association (NMMA) set requirements for meeting manufacturing regulations established by the U.S. Coast Guard. Many companies even choose to participate in the more stringent Certification Program administered by the NMMA. The NMMA verifies boat models annually, or whenever a new product is put on the market, 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.

44. One commenter suggested that the NPS consider requiring permits or other approval for ceremonial activities, so that motorized boaters can be given adequate advance notice of any specific time/location restrictions on vessel usage. This will better enable PWC users and other boaters to respect these observances, reduce the potential for user conflicts, and assist in enforcement efforts.

NPS Response: Historically, tribal groups pursuing traditional activities in the park have been very small and permits have not been issued. In addition, past observances have occurred in seasons of the year when PWC use is light or non-existent. If and when the ceremonial activities become larger in scope or number, the park will initiate more formal permitting.

45. One commenter stated that there is no discussion of the economic costs of continued PWC operation upon the lakeshore's wildlife, public safety, and visitor use. In addition, it is questionable to assume that a PWC ban will automatically result in a decrease in park visitation. The commenter states that the EA also incorrectly assumes that a PWC ban will reduce the consumer surplus of other motorized boaters.

NPS Response: The socioeconomic study did not address the future potential costs of environmental damage. The study examined the potential effect that the ban would have on the local economy, and the potential effects on socio-economically disadvantaged groups. The comment is correct in stating that the same level of analysis was not given to the future environmental costs.

The number of recreational visits at Pictured Rocks National Lakeshore in calendar year 2000 was 424,533, which is a 4.6% reduction from 1999. The most recent available visitation data was used at the time the EA was written. A variety of factors influence visitor use numbers at national parks; therefore, it is not possible to precisely ascertain specific reasons for increases or decreases in visitation.

46. One commenter stated that the analysis of socioeconomic effects of the different alternatives failed to consider the possibility that the no-action alternative could have positive economic effects upon those renting kayaks or providing guiding services.

NPS Response: The evaluation concentrated on the effects of PWC management on the local economy. No data is available indicating that the presence of PWC has decreased the lakeshore visitation by kayakers or other visitors. Thus, a conclusion cannot be made that banning PWC would increase use by other groups. According to the visitor survey (summer 2000), most visitors identified issues associated with PWC operation within the lakeshore as “no problem or slight problem.” This indicates that banning PWC would not have a substantial effect on visitor experience or visitor satisfaction. The NPS concurs that a ban on PWC would allow local businesses to target their marketing and services to an audience that is sensitive to PWC use.

47. Several commenters stated that additional staff would be required to adequately address the increased enforcement needed under the final rule.

NPS Response: The NPS used the best available data to evaluate potential conflicts between PWC and other park visitors. The NPS concurs that it is likely that some violations are not reported, particularly those that may be considered minor infractions by the general public. The evaluation in the EA assumed that some violations would occur and noted that staffing was insufficient to properly police existing boating activities, with or without PWC use in the lakeshore.

The analysis indicated that increased staffing would be necessary to more adequately monitor watercraft on Lake Superior. The NPS believes that operation of PWC in the lakeshore will not require more staff than that required for increased monitoring of all watercraft because (1) the number of PWC operating within the lakeshore is small in comparison to the number of other motorboats and watercraft, (2) the location of PWC operation is separated from most other visitors (excluding motorboats) and (3) the increased patrols necessary to monitor all boating traffic will increase the observed presence of policing such that all infractions will likely decrease.

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

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 Personal Watercraft Regulations in Pictured Rocks National Lakeshore” (RTI, International, November 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 and discussion from the public concerning the overall effect of authorizing PWC use and National Park Service policy and park management.

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 Personal Watercraft Regulations in Pictured Rocks National Lakeshore” (RTI, International, November 2004), copies of which are available from the address in the ADDRESSES section.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This final 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.

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.

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.

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.

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.

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.

As a companion document to the NPRM, NPS issued the Personal Watercraft Use Environmental Assessment for Pictured Rocks National Lakeshore and subsequent errata sheet. The environmental assessment was available for public review and comment for the period August 1 through November 15, 2004. A Finding of No Significant Impact (FONSI) was signed on September 9, 2005. To request a copy of these documents contact Superintendent, Pictured Rocks National Lakeshore, N8391 Sand Point Road, P.O. Box 40, Munising, MI 49862-0040. A copy of the Environmental Assessment, errata sheet, and FONSI may also be found at http://www.nps.gov/piro/pwc.

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on Federally recognized Indian tribes and have determined that there are no potential effects.

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 7.32(d), is exempt from the requirement of publication of a substantive rule not less than 30 days before its effective date.

As discussed in this preamble, the final rule is a part 7 special regulation for Pictured Rocks National Lakeshore 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 51788) on August 23, 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 Pictured Rocks National Lakeshore final rule.

On April 27, 2005, President Bush signed the Family Entertainment and Copyright Act (“FECA”). Pub. L. No. 109-9, 119 Stat. 218. Title I of FECA is the Artists' Rights and Theft Prevention Act of 2005, or “ART Act,” which among other things addresses copyright infringement of works committed prior to their authorized commercial distribution, or pre-release infringement. Section 104 directs the Copyright Office to conduct a rulemaking proceeding to establish a procedure for preregistration of unpublished works that are being prepared for commercial distribution.

Specifically, Section 104 provides that “Not later than 180 days after the date of enactment of this subsection, the Register of Copyrights shall issue regulations to establish procedures for preregistration of a work that is being prepared for commercial distribution and has not been published.” 17 U.S. C. 408(f)(1). Preregistration is a new procedure in the Copyright Office that permits such an action to serve as a place-holder for limited purposes - notably where a copyright owner needs to sue for infringement while a work is still being prepared for commercial release.

Congress also assigned the Register to determine which works are eligible for preregistration by directing that “the regulations established under paragraph (1) shall permit preregistration for any work that is in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution.” 17 U.S.C. 408(f)(2). Thus, falling in one or more of the classes so determined by the Register is a precondition to eligibility for preregistration, and applications for works that do not appear to fall within these classes should not be entertained.

On July 22, 2005, the Register of Copyrights initiated this rulemaking proceeding pursuant to the ART Act's Section 408(f)(2) with publication of a Notice of Proposed Rulemaking (“NOPR”). 70 FR 42286. The Copyright Office received ten initial comments and five reply comments related to proposals of one or more classes of works or to general preregistration procedure. The Office also received a large number of comments in response to a Supplemental Notice of Proposed Rulemaking published August 4, 2005, which sought information relating to browser compatibility for those expected to file the electronic preregistration form. The Office made this inquiry after learning that persons attempting to use the Office's new online preregistration system, which was still in development, may have difficulties if they used web browsers other then Microsoft Internet Explorer.

In order to preregister, applicants must use the Office's online preregistration system, which will be accessible from the Copyright Office's home page at http://www.copyright.gov. While the Office is attempting to address browser compatibility issues, initially some applicants may experience difficulties if they are using browsers other than Internet Explorer. For applicants who are unable to use the online preregistration system, information will be available on the Copyright Office website on how to preregister their works.

In order to comply with the ART Act's requirement that regulations to establish procedures for preregistration be issued by October 24, the Office is now issuing the following interim regulations. It is anticipated that final regulations, which will be identical or very similar to the interim regulations, will be published within the next few weeks, along with a more detailed discussion of the comments received in response to the notice of proposed rulemaking and of the Office's responses to those comments. For further information in the meantime, please refer to the July 22 notice of proposed rulemaking, as supplemented by the following brief explanation.

The Register's determination today adopts the liberalized classes named and discussed below. The Register has now carefully reviewed the record in this rulemaking proceeding to determine the classes of works that have had a history of infringement prior to authorized commercial distribution. Based on that review of the comments, it appears that the case has been made for eligibility for preregistration of the following classes of works upon their fulfillment of the conditions specified in 37 CFR 202.16:

(i) Motion pictures;

(ii) Sound recordings;

(iii) Musical compositions;

(iv) Literary works being prepared for publication in book form;

(v) Computer programs (including videogames); and

(vi) Advertising or marketing photographs.

Many copyright owners urged that much or all of the information provided on applications for preregistration be maintained as confidential records by the Copyright Office. The Register cannot accept the proposition that the public should be denied access to the preregistration records. As an office of public record administering a system of registration and recordation the purpose of which is to provide information regarding copyright ownership to the public, the Copyright Office is not disposed to receive and maintain private information. The Office is subject to the Freedom of Information Act (“FOIA”), and it may or may not be able to refuse release of records based on applicable FOIA exceptions. To preclude accessibility to information related to a preregistration is inconsistent with the very concept of preregistration and registration systems.

The Office does not believe that the alleged risks of making such information public pose serious danger to copyright owners. The information required to preregister a work need not be detailed and need not include confidential information. To the extent that a title is demanded, it is sufficient to provide a “working title”; moreover, the risk of cybersquatting can easily be mitigated if the copyright owner obtains the applicable domain name prior to or simultaneously with preregistration. Information such as anticipated release dates is not immutable; it should be understood that when a preregistration made at an early stage in a work's preparation states an anticipated date of release, that date is at best a prediction and is hardly a binding commitment.

Accordingly, the preregistration record will be a public record, and information from the preregistration records will be available on the Copyright Office Web site. 1

The Office has abandoned its proposal that, in order to be eligible for preregistration, a work must already be subject to a contract for distribution of the work with an established distributor of works. However, a person preregistering a work must certify, under penalty of law, that the work is in fact being prepared for commercial distribution and that the applicant has a reasonable expectation that the work will be commercially distributed to the public.

Commenters also asserted that distribution is already extensively occurring online, and in some genres, exclusively so. Therefore, the Office will not limit the coverage of this regulation to work being prepared for commercial distribution in physical format. Any class of work that the Register determines has had a history of pre-release infringement may be preregistered without regard to whether the work is intended to be distributed in physical formats or is intended for online distribution.

Additional information relating to preregistration may be found in the help pages of the Office's online preregistration system, which will be accessible from the Copyright Office's home page at http://www.copyright.gov. The online preregistration system, which is in its final stages of preparation, will go online, and preregistration will be available, on November 15.

On May 12, 2000, NHTSA issued a final rule for advanced air bags, amending FMVSS No. 208 to, among other things, minimize injuries to small adults and young children due to air bag deployment (65 FR 30680). To address the risk air bags pose to young children in child restraint systems, the agency amended FMVSS No. 208 to include a number of alternative tests, one of which requires the front passenger air bag system to automatically suppress when a child or child in a child restraint system is present. Some manufacturers rely on weight-based technology to comply with the automatic air bag suppression requirement. Weight-based technologies utilize load cells or other sensors designed into the vehicle seat. With this option, the vehicle air bag in the right front passenger seat is suppressed when a child or a child in a child restraint system is placed on the seat. If an adult occupies the front passenger seat, the feature enables the air bag deployment. The threshold for enabling the air bag deployment is dependent on the design and calibration of the suppression system used.

The agency selected certain child restraint systems to be used for compliance testing of the air bag suppression systems. The selected child restraint systems are included as an appendix (Appendix A, “Selection of child restraint systems”) in FMVSS No. 208. The list of child restraint systems is periodically updated to reflect child restraint systems currently on the market. On November 19, 2003, the agency updated the list of child restraint systems in Appendix A of FMVSS No. 208 (68 FR 65179). FMVSS No. 208 requires that vehicles be certified for compliance using any of the child restraint systems in Appendix A.

On February 11, 2004, the agency received a petition for rulemaking from Honda requesting that NHTSA amend FMVSS No. 213 to limit the weight of all child restraint systems, including rear-facing, forward-facing, and convertible type restraints used by 3-year-old children and produced in accordance with FMVSS No. 213, for the purpose of maintaining the appropriate air bag deployment for small occupants. Honda suggested that, based on available child restraint system designs, “perhaps a weight limit of about 8.5 kilograms (kg) (18.7 lb) may be appropriate.”

As Honda's petition specifically addresses the air bag suppression requirements for child restraints used with the 3-year-old dummy, NHTSA notes that manufacturers choosing to certify to FMVSS No. 208 S21.2, Option-Automatic suppression feature, must demonstrate compliance when using any of the child restraints listed in sections C and D of FMVSS No. 208 Appendix A. These child restraints include (1) forward-facing toddler and forward-facing convertible seats, and (2) forward-facing toddler/belt positioning-booster seats and belt-positioning booster seats.

In its petition, Honda stated that it agrees with NHTSA that it is very important to periodically update the child restraint system list in Appendix A of FMVSS No. 208. However, Honda claimed that the weight of certain child restraint system models recommended for 3-year-old children in the updated list were heavier than others. Honda proposed to limit the child restraint system mass to about 8.5 kg (18.7 pounds). Specifically, the petitioner stated:

Honda provided the mass distribution for the child restraint systems in Appendix A of FMVSS No. 208. The weight distribution for these restraints ranged from about 1.5 kg (3.3 pounds) for Evenflo Right Fit to about 7.9 kg (17.4 pounds) for Britax Expressway ISOFIX, with an average weight of about 4.6 kg (11 pounds). Honda proposed to limit the child restraint system weight to about 8.5 kg (18.7 pounds). It is important to note that as currently written, FMVSS No. 213 is a performance standard, and as such, does not specify any weight limit on particular child restraint system designs.

While Honda's petition provided the weight of the child restraint systems currently included in Appendix A of FMVSS No. 208, NHTSA obtained the weight of a number of varying restraint designs, either currently available or available in recent years, including infant beds, infant seats with and without a base, convertible child seats, forward-facing only seats, combination child and booster seats, and booster seats child restraints. 1 From this list, NHTSA examined the weights of those restraints that could possibly be included in sections C and D of FMVSS No. 208 Appendix A, and therefore relevant to the subject petition ( e.g. , forward-facing toddler, forward-facing convertible seats, forward-facing toddler/belt positioning-booster seats, and belt-positioning booster seats). While the vast majority of these child restraint systems weigh less than the Britax Expressway ISOFIX (currently, the heaviest child restraint system included in Appendix A of FMVSS No. 208), NHTSA found at least seven child restraint systems heavier than the Britax Expressway ISOFIX. Further, six of these are heavier than the 8.5 kg limit suggested by Honda in its petition.

Appendix A of FMVSS No. 208 specifies a list of child restraint systems that may be used by NHTSA to test the air bag suppression systems of a vehicle that has been certified as complying with S19, S21, or S23 of FMVSS No. 208. When selecting a child restraint system to be included in Appendix A, the agency considers a number of different factors. These factors are outlined in the agency's November 2003, final rule as follows:

Specifically with respect to Honda's concern about the increasing weight of child restraint systems, the heaviest child restraint system selected for inclusion in Appendix A, as amended in the November 19, 2003 final rule, is about 0.5 kg (1.1 lbs) heavier than the heaviest child restraint system removed from Appendix A. However, as noted earlier, the Britax Expressway ISOFIX is lighter than at least seven other child restraint systems either currently available or available in recent years that could be included in sections C and D of FMVSS No. 208 Appendix A. Importantly, NHTSA notes that there is no single established weight threshold for all weight-based air bag suppression systems on the market. The design of these systems may vary depending on a number of different parameters, as long as the system adequately suppresses the air bag when tested in accordance with the requirements of FMVSS No. 208.

Honda stated that for weight-based occupant detection systems used for air bag suppression, if increasingly heavier child restraint systems are added to the market endlessly, the stable and reliable performance of small occupant detection systems could not be achieved. NHTSA does not believe that the addition of the Britax Expressway ISOFIX, the heaviest child restraint system included in Appendix A of FMVSS No. 208 to date, serves as an indication that child restraints are becoming heavier. As noted earlier, NHTSA has identified at least nine child restraint systems that are above the 8.5 kg mass limit proposed by Honda. However, as FMVSS No. 213 does not require child restraint systems to meet specific weight limits, NHTSA does not weigh the restraints as part of its annual compliance test program. As such, the agency has no historical data to show that there is a trend towards increasingly heavier child restraint systems as implied by Honda. Further, Honda did not provide such data in support of its petition.

The agency did estimate that, in order to comply with the requirement that all child restraint systems have hardware enabling the restraint to attach to the universal child restraint anchorage system required in vehicles as a result of FMVSS No. 225, “Child restraint anchorage systems,” each child restraint system would have an incremental weight increase ranging from less than 0.45 kg (1 pound) to 1.36 kg (3 pounds) depending on the type of attachment hardware used. 2 To date, virtually all child restraint systems have adopted the use of flexible-type attachment hardware, which only marginally increases the weight of the child restraint system. Notably, the heaviest child restraint system in Appendix A of FMVSS No. 208-the Britax Expressway ISOFIX-is a restraint that utilizes a rigid lower attachment system to connect to the vehicle anchorages and is designed for forward-facing use. These rigid anchorages are typically heavier than the flexible attachment hardware that is predominant in current designs. However, we note that the Britax Expressway ISOFIX, at 7.9 kg (17.4 lb), is still significantly lighter than the heaviest child restraint system examined by NHTSA-the Britax Super Elite (a forward-facing seat for children weighing between 22 and 80 pounds, equipped with a 5-point harness restraint system) at 11.6 kg (25.6 lb).

Honda stated that based on the wide variety of child restraint system designs already on the market, the company does not believe a weight limit requirement would unduly limit child restraint system design or performance. However, Honda did not present evidence to support this claim. Absent such evidence, there is no way for the agency to confirm Honda's assertion. As noted earlier, FMVSS No. 213-as with the other FMVSSs-is a performance standard. The agency does not believe that it is appropriate to impose design-restrictive requirements that may hinder the development of safety features for use in future child restraint system designs. For example, NHTSA is conducting ongoing research in the area of improved side impact protection for children in crashes in response to the Transportation Recall, Enhancement, Accountability and Documentation (TREAD) Act. NHTSA does not want to put constraints on potential innovative designs that could improve safety for children in this or other areas in the future, and believes that imposing design-restrictive parameters for child restraints-such as imposing a weight limit as suggested in the subject petition-could potentially preclude the development of safety advances. While FMVSS No. 213 does not currently specify weight limits on child restraint designs, the agency notes, as did Honda, that lighter weight child restraint systems can be considered more user-friendly in that they are easier to move from one vehicle to another and from one seating position to another in the same vehicle if needed.

Honda stated that it is concerned that older vehicles that are already on the road, with suppression systems calibrated to the lower weights of older child restraint systems, will fail to recognize newer and heavier child restraint systems. Honda stated that the air bag could deploy for an infant or small child in a very heavy child restraint system in vehicles calibrated to lighter weight child restraint systems that were on the market at the time the vehicle suppression system was designed. NHTSA notes that the mass of the Britax Expressway ISOFIX is only 0.5 kg (1.1 lb) more than the previous heaviest child restraint system included in Appendix A. This is a very nominal increase (approximately 3 percent) in child restraint mass, and the agency would expect that the margin of safety designed into the occupant detection systems used to control air bag suppression systems is sufficient to address such small changes in child restraint system mass. This is especially important given that the agency has identified a number of child restraints either currently available or available in the recent past that are heavier- and in some cases, significantly heavier-than the Britax Expressway ISOFIX.

While Honda proposed to limit child restraint system design mass to about 8.5 kg (18.7 lb), it did not provide any rationale or supporting data to justify this 8.5 kg limit. This, coupled with the fact that there is no single established weight threshold for all weight-based air bag suppression systems on the market, does not support the adoption of Honda's proposed amendment. The agency does not have a rationale to restrict the mass of child restraint systems to a limit of 8.5 kg at this time.

While NHTSA does not believe that amendments are necessary at this time, the agency shares Honda's concern. As noted earlier, the agency does not weigh child restraints as part of the FMVSS No. 213 compliance test program. However, the agency does now weigh these seats for use in (1) developing future upgrades to Appendix A of FMVSS No. 208 and (2) the agency's Child Restraint Ease of Use Ratings Program. In addition, we will continue to monitor developments on this matter through the Society of Automotive Engineers-Child Restraint Systems Standard Committee, whose members include motor vehicle and motor vehicle equipment manufacturers, and child restraint systems manufacturers. This committee has been and continues to be in dialog on this subject, and we will ensure that the concerns are well communicated.

The agency has clearly noted the composition of Appendix A is intended to represent large portions of the child restraint system market, while including exceptionally large or small restraints. This combination of restraints is needed to assure the robustness of automatic suppression systems under real world conditions. It is also important to note that when Appendix A was amended in November 2003, the Britax Expressway ISOFIX was unique in design, in that it was the only child restraint system available with rigid Lower Anchors and Tethers for Children (LATCH) attachments. While the agency has identified a small percentage of child restraint systems that weigh more than the Britax Expressway ISOFIX, the inclusion of heavier child restraint system designs is not inconsistent with the intent of Appendix A of FMVSS No. 208. Further, while the Britax Expressway ISOFIX is approximately 0.5 kg (1.1 lb) heavier than the heaviest child restraint system that was removed from Appendix A as amended in the November 2003 final rule, the agency does not consider this to be an indication that child restraint system designs are increasing in weight.

As noted earlier, FMVSS No. 213 is a performance standard, and does not specify particular design constraints such as mass and/or dimensions. Honda did not provide any rationale for its proposal to limit child restraint system designs to a maximum of 8.5 kg (18.7 lb). NHTSA has not identified any real-world data to support the need to limit the weight of child restraint systems, and specifically as it relates to the performance of occupant detection systems for automatic air bag suppression. Further, specification of a child restraint system mass limit, when considered in conjunction with the mass of the dummy used in air bag suppression testing, would effectively establish a weight threshold for weight-based air bag suppression systems. It is not the intent of the agency to specify such a threshold. Each vehicle manufacturer is responsible for meeting the requirements of FMVSS No. 208 when using any of the child restraint systems listed in Appendix A.

In consideration of the foregoing, NHTSA is denying Honda's petition for rulemaking to amend FMVSS No. 213 to adopt a design weight limit for child restraint systems used with the 3-year-old dummy. In accordance with 49 CFR Part 552, this completes the agency's review of the petition.

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) turtles are listed as endangered. The loggerhead ( Caretta caretta ) and green ( Chelonia mydas ) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Sea turtles are incidentally taken, and some are killed, as a result of numerous activities, including fishery-related trawling activities in the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and its implementing regulations, the taking of sea turtles is prohibited, with exceptions identified in 50 CFR 223.206(d), or according to the terms and conditions of a biological opinion issued under section 7 of the ESA, or according to an incidental take permit issued under section 10 of the ESA. The incidental taking of turtles during shrimp or summer flounder trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR 223) are followed. The regulations require most shrimp trawlers and summer flounder trawlers operating in the southeastern United States (Atlantic area, Gulf area, and summer flounder sea turtle protection area, see 50 CFR 223.206) to have a NMFS-approved TED installed in each net that is rigged for fishing to allow sea turtles to escape. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, the flounder TED, and one type of soft TED the Parker soft TED (see 50 CFR 223.207).

TEDs incorporate an escape opening, usually covered by a webbing flap, which allows sea turtles to escape from trawl nets. To be approved by NMFS, a TED design must be shown to be 97 percent effective in excluding sea turtles during testing based upon specific testing protocols (50 CFR 223.207(e)(1)). Most approved hard TEDs are described in the regulations (50 CFR 223.207(a)) according to generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape.

The regulations governing sea turtle take prohibitions and exemptions provide for the use of limited tow times as an alternative to the use of TEDs for vessels with certain specified characteristics or under certain special circumstances. The provisions of 50 CFR 223.206(d)(3)(ii) specify that the NOAA Assistant Administrator for Fisheries (AA) may authorize compliance with tow time restrictions as an alternative to the TED requirement if the AA determines that the presence of algae, seaweed, debris, or other special environmental conditions in a particular area makes trawling with TED-equipped nets impracticable. The provisions of 50 CFR 223.206(d)(3)(i) specify the maximum tow times that may be used when tow time limits are authorized as an alternative to the use of TEDs. Each tow may be no more than 55 minutes from April 1 through October 31 and no more than 75 minutes from November 1 through March 31, as measured from the time that the trawl doors enter the water until they are removed from the water. These tow time limits are designed to minimize the level of mortality of sea turtles that are captured by trawl nets not equipped with TEDs.

On September 12, 2005, the NMFS Southeast Regional Administrator received requests from the Marine Fisheries Division of the Alabama Department of Conservation and Natural Resources (ALDCNR) and the Louisiana Department of Wildlife and Fisheries (LADWF) to allow the use of tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm-related debris on the fishing grounds as a result of Hurricane Katrina. NMFS received a similar request from the Mississippi Department of Marine Resources (MDMR) on September 13. On September 27, 2005, the NMFS Southeast Regional Administrator received requests from the Louisiana Department of Wildlife and Fisheries (LADWF) and the Texas Parks and Wildlife Department (TPWD) to allow the use of tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm-related debris on the fishing grounds as a result of Hurricane Rita. Subsequent to these requests, NMFS issued 30-day exemptions to the TED requirements from September 23 through October 23, 2005, and October 11 through November 10, 2005, for waters affected by Hurricanes Katrina and Rita, respectively (70 FR 56593 and 70 FR 60013, respectively).

On October 11, 2005, the NMFS Southeast Regional Administrator received requests from the ALDCNR, MDMR, LADWF, and the TPWD for an additional 30-day period allowing the use of restricted tow times as an alternative to TEDs in inshore and offshore waters because of excessive storm-related debris that is still present on the fishing grounds as a result of Hurricanes Katrina and Rita. After an investigation, NMFS has determined that this debris is still affecting fishermen's ability to use TEDs effectively, which is not expected to dissipate anytime soon. When a TED is clogged with debris it can no longer catch shrimp effectively nor can it effectively exclude turtles. NMFS has investigated the continuing problems with debris and has determined that shrimp fisherman may continue to use limited two times as an alterative to TEDs in inshore and offshore waters in the affected area off Alabama westward through Texas.

The AA finds that debris washed into inshore and offshore waters by Hurricanes Katrina and Rita off Alabama, westward to the boundary shared by Matagorda and Brazoria Counties, Texas, and extending offshore 50 nautical miles, has created ongoing special environmental conditions that make trawling with TED-equipped nets impracticable. Therefore, the AA issues this notification to extend the two previous authorizations for the use of restricted tow times as an alternative to the use of TEDs in inshore and offshore waters off Alabama, westward to the boundary shared by Matagorda and Brazoria Counties, Texas, and extending offshore 50 nautical miles, through 11:59 p.m. on November 23, 2005. Tow times must be limited to no more than 55 minutes measured from the time trawl doors enter the water until they are retrieved from the water through October 31, 2005, and no more than 75 minutes from the time trawl doors enter the water until they are retrieved, November 1 through November 23, 2005; thus, the permitted tow time will change part way through this exemption period.

NMFS encourages shrimp trawlers in the affected areas to continue to use TEDs if possible, even though they are authorized under this action to use restricted tow times.

NMFS' gear experts have provided several general operational recommendations to fishermen to maximize the debris exclusion ability of TEDs that may allow some fishermen to continue using TEDs without resorting to restricted tow times. To exclude debris, NMFS recommends the use of hard TEDs made of either solid rod or of hollow pipe that incorporate a bent angle at the escape opening, in a bottom-opening configuration. In addition, the installation angle of a hard TED in the trawl extension is an important performance element in excluding debris from the trawl. High installation angles can trap debris either on or in front of the bars of the TED; NMFS recommends an installation angle of 45°, relative to the normal horizontal flow of water through the trawl, to optimize the TED's ability to exclude turtles and debris. Furthermore, the use of accelerator funnels, which are allowable modifications to hard TEDs, is not recommended in areas with heavy amounts of debris or vegetation. Lastly, the webbing flap that is usually installed to cover the turtle escape opening may be modified to help exclude debris quickly: the webbing flap can either be cut horizontally to shorten it so that it does not overlap the frame of the TED or be slit in a fore-and-aft direction to facilitate the exclusion of debris. The use of the double cover flap TED will also aid in debris exclusion.

All of these recommendations represent legal configurations of TEDs for shrimpers fishing in the affected areas. This action does not authorize any other departure from the TED requirements, including any illegal modifications to TEDs. In particular, if TEDs are installed in trawl nets, they may not be sewn shut.

The authorization provided by this rule applies to all shrimp trawlers that would otherwise be required to use TEDs in accordance with the requirements of 50 CFR 223.206(d)(2) who are operating in inshore and offshore waters affected by Hurricanes Katrina and Rita off Alabama, westward to the boundary shared by Matagorda and Brazoria Counties, Texas, and extending offshore 50 nautical miles, through November 23, 2005. Through this temporary rule, shrimp trawlers may choose either restricted tow times or TEDs to comply with the sea turtle conservation regulations, as prescribed above.

The AA, at any time, may withdraw or modify this temporary authorization to use tow time restrictions in lieu of TEDs through publication of a notice in the Federal Register , if necessary to ensure adequate protection of endangered and threatened sea turtles. Under this procedure, the AA may modify the affected area or impose any necessary additional or more stringent measures, including more restrictive tow times, synchronized tow times, or withdrawal of the authorization if the AA determines that the alternative authorized by this rule is not sufficiently protecting turtles or no longer needed. The AA may also terminate this authorization if information from enforcement, state authorities, or NMFS indicates compliance cannot be monitored effectively. This authorization will expire automatically at 11:59 p.m., local time, on November 23, 2005, unless it is explicitly extended through another notification published in the Federal Register .

This action has been determined to be not significant for purposes of Executive Order 12866.

The AA has determined that this action is necessary to respond to special environmental conditions to allow more efficient fishing for shrimp, while providing adequate protection for endangered and threatened sea turtles pursuant to the ESA and applicable regulations.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this rule. The AA finds that unusually high amounts of debris has created ongoing special environmental conditions that make trawling with TED-equipped nets impracticable. Prior notice and opportunity to comment are impracticable and contrary to the public interest in this instance because providing notice and comment would prevent the agency from providing the affected industry relief from the effects of Hurricanes Katrina and Rita in a timely manner.

The AA finds that there is good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3) to provide alternatives to comply with the sea turtle regulations in a timely manner. Many fishermen may be unable to operate under the special environmental conditions created by Hurricanes Katrina and Rita without an alternative to using TEDs. Providing a 30-day delay in effective date would prevent the agency from providing the affected industry relief from the effects of Hurricanes Katrina and Rita in a timely manner. For the reasons stated above, the AA finds that this temporary rule should not be subject to a 30-day delay in effective date, pursuant to 5 U.S.C. 553(d)(1).

Since prior notice and an opportunity for public comment are not required to be provided for this action by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601 et seq. are inapplicable.

The AA prepared an Environmental Assessment (EA) for this rule. Copies of the EA are available (see ADDRESSES ).