[Federal Register Volume 70, Number 104 (Wednesday, June 1, 2005)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10855]
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
Bighorn Canyon National Recreation Area, Personal Watercraft Use
AGENCY: National Park Service, Interior.
ACTION: Final rule.
SUMMARY: This rule designates areas where personal watercraft (PWC) may
be used in Bighorn Canyon National Recreation Area, Montana and
Wyoming. This rule implements the provisions of the National Park
Service (NPS) general regulations authorizing park areas to allow the
use of PWC by promulgating a special regulation. The NPS Management
Policies 2001 require individual parks to determine whether PWC use is
appropriate for a specific park area based on an evaluation of that
area's enabling legislation, resources and values, other visitor uses,
and overall management objectives.
DATES: Effective June 1, 2005.
ADDRESSES: Mail inquiries to Superintendent, Bighorn Canyon NRA, P.O.
Box 7458, Fort Smith, MT 59035 or e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program
Manager, National Park Service, 1849 C Street, NW., Room 7241,
Washington, DC 20240. Phone: (202) 208-4206. E-mail: [email protected].
Personal Watercraft Regulation
On March 21, 2000, the National Park Service published a regulation
(36 CFR 3.24) on the management of personal watercraft (PWC) use within
all units of the national park system (65 FR 15077). This regulation
prohibits PWC use in all national park units unless the NPS determines
that this type of water-based recreational activity is appropriate for
the specific park unit based on the legislation establishing that park,
the park's resources and values, other visitor uses of the area, and
overall management objectives. The regulation banned PWC use in all
park units effective April 20, 2000, except 21 parks, lakeshores,
seashores, and recreation areas. The regulation established a 2-year
grace period following the final rule publication to provide these 21
park units time to consider whether PWC use should be allowed.
Description of Bighorn Canyon National Recreation Area
Bighorn Canyon National Recreation Area was established by an act
of Congress on October 15, 1966, following the construction of the
Yellowtail Dam by the Bureau of Reclamation. This dam, named after the
famous Crow chairman Robert Yellowtail, harnessed the waters of the
Bighorn River and turned this variable stream into a lake. The most
direct route to the southern end of Bighorn Canyon NRA is via Montana
State road 310 from Billings, Montana, or U.S. Highway 14A from
Bighorn Lake extends approximately 60 miles through Wyoming and
Montana, 55 miles of which are held within Bighorn Canyon. The
Recreation Area is composed of more than 70,000 acres of land and
water, which straddle the northern Wyoming and southern Montana
borders. There are two visitor centers and other developed facilities
in Fort Smith, Montana, and near Lovell, Wyoming. The Afterbay Lake
below the Yellowtail Dam is a good spot for trout fishing and wildlife
viewing for ducks, geese, and other animals. The Bighorn River below
the Afterbay Dam is a world class trout fishing area.
Purpose of Bighorn Canyon National Recreation Area
The purpose and significance statements listed below are from
Bighorn Canyon's Strategic Plan and Master Plan. Bighorn Canyon
National Recreation Area was established to:
1. Provide for public outdoor recreation use and enjoyment of
Bighorn Lake (also referred to as Yellowtail Reservoir) and lands
adjacent thereto within the boundary of the National Recreation Area on
2. Preserve the scenic, scientific, and historic features
contributing to public enjoyment of such lands and waters.
3. Coordinate administration of the recreation area with the other
purposes of the Yellowtail Reservoir project so that it will best
provide for: (1) Public outdoor recreation benefits, (2) preservation
of scenic, scientific, and historic features contributing to public
enjoyment, and (3) management, utilization, and disposal of renewable
natural resources that promotes or is compatible with and does not
significantly impair public recreation or scenic, scientific, or
historic features contributing to public enjoyment.
Significance of Bighorn Canyon National Recreation Area
Bighorn Canyon National Recreation Area is significant for the
1. The outstanding scenic and recreational values of the 60-mile
long, 12,700 acre Bighorn Lake.
2. The history of over 10,000 years of continuous human habitation.
3. The contribution the recreation area is making to the
preservation of wild horses on the Pryor Mountain Wild Horse Range, of
which one-third is located within the recreation area, as well as the
preservation of a Bighorn sheep herd that repatriated the area in the
4. The 19,000 acre Yellowtail Wildlife Habitat, which preserves one
of the best examples of a Cottonwood Riparian area remaining in the
western United States.
Authority and Jurisdiction
Under the National Park Service's Organic Act of 1916 (Organic Act)
(16 U.S.C. 1 et seq.) Congress granted the NPS broad authority to
regulate the use of the Federal areas known as national parks. In
addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the
Secretary of the Interior, to ``make and publish such rules and
regulations as he may deem necessary or proper for the use and
management of the parks * * *''
16 U.S.C. 1a-1 states, ``The authorization of activities shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been established
* * *''
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
PWC Use at Bighorn Canyon National Recreation Area
Personal watercraft use on Bighorn Lake began during the early
1990s. During 2001, personal watercraft comprised approximately 5% of
the boat use on Bighorn Lake. Before the ban was imposed in November
2002, personal watercraft were allowed to operate throughout the
national recreation area, but most personal watercraft use occurred at
the north end of the lake in the vicinity of Ok-A-Beh Marina. The
primary use season is mid-May through mid-September. During the other
months the water is generally too cold for PWC use.
Bighorn Canyon has two marinas: Horseshoe Bend and Ok-A-Beh. Both
provide gas, rental docks, food, and boater supplies, typically from
Memorial Day through Labor Day. Personal watercraft (before the ban)
and other watercraft could also enter the lake at Barry's Landing,
which has a launching ramp but no marina. Primitive access to the lake
is available at the causeway, and access to the Bighorn and Shoshone
Rivers is available throughout the Yellowtail Wildlife Habitat.
Watercraft may be launched at the Afterbay launch ramp and on the river
at the Afterbay and Three-Mile access areas.
Personal watercraft (before the ban) and other watercraft are
piloted over the main surface of the lake, along the lakeshore, and in
coves and back bays. Boaters may camp at one of the national recreation
area's 156 developed campsites or at one of nearly 30 primitive
No surveys have been conducted regarding the operating hours of
personal watercraft at Bighorn Canyon National Recreation Area, though
most personal watercraft probably operate between the hours of dawn to
dusk. There are currently no State regulations regarding hours of
operation in either Montana or Wyoming. Due to the narrowness of
Bighorn Lake, most watercraft activity, including use of personal
watercraft before the ban, occurs in the several wide sections of the
lake, or watercraft traverse back and forth across the lake. Some
thrill-seeking activity by personal watercraft users did occur.
Before the ban on PWC use, PWC use was such a small percentage of
the overall boating use within Bighorn Canyon that accidents involving
PWC operators varied greatly from year to year. Two accidents were
recorded at Bighorn Canyon National Recreation Area during the 2000 and
2001 seasons. Both accidents were attributed to the operators'
inexperience in operating personal watercraft, allowing them to run
into other vessels. Statistics for other vessel accidents per year are
Complaints regarding misuse of personal watercraft are infrequent,
and the most commonly reported are wakes in the flat-wake zones near
boat launch areas. Bighorn Canyon National Recreation Area has issued
citations under Montana and Wyoming State law to personal watercraft
users for acts such as wake jumping, under-age riding, and failing to
wear flotation devices. The most common citation has been for under-age
riding. Montana State law requires riders age 13 and 14 to have a
certificate, and riders 12 and younger must be accompanied by an adult.
Wyoming State law requires riders to be 16 years old.
Notice of Proposed Rulemaking and Environmental Assessment
On May 5, 2004, the National Park Service published a Notice of
Proposed Rulemaking (NPRM) for the operation of PWC at Bighorn Canyon
National Recreation Area (NRA) (69 FR 25043). The proposed rule for PWC
use was based on alternative B in the Environmental Assessment (EA)
prepared by NPS for Bighorn Canyon NRA. The EA was available for public
review and comment from June 9, 2003, through July 11, 2003, and the
NPRM was available for public comment from May 5, 2004, through July 6,
The purpose of the EA was to evaluate a range of alternatives and
strategies for the management of PWC use at Bighorn Canyon to ensure
the protection of park resources and values while offering recreational
opportunities as provided for in the National Recreation Area'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 assessment also
compared each alternative to PWC use before November 7, 2002, when the
service-wide closure took effect.
The EA evaluated three alternatives addressing the use of personal
watercraft at Bighorn Canyon National Recreation Area. Alternative A
reinstates PWC use under those restrictions that applied to PWC use
before November 7, 2002, as defined in the park's Superintendent's
Compendium. Alternative B manages PWC use by imposing management
prescriptions in addition to those restrictions in effect before
November 7, 2002. In addition to those areas closed to PWC use in
alternative A, alternative B includes a closure of the Bighorn Lake and
shoreline south of the area known as the South Narrows. Bighorn Canyon
National Recreation Area would also install buoys to delineate this
boundary and personal watercraft users would be required to stay north
of this boundary. Under alternative B, Bighorn Canyon would also
establish a PWC user education program implemented through vessel
inspections, law enforcement contacts, and signing. In addition to
alternatives A and B, the National Park Service considered a no-action
alternative that takes no action to reinstate the use of personal
watercraft at Bighorn Canyon National Recreation Area. Under this
alternative, NPS would continue the ban on personal watercraft use at
Bighorn Canyon National Recreation Area begun in November 2002.
Based on the analysis, NPS determined that 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 Bighorn Canyon National
Summary of Comments
A proposed rule was published for public comment on May 5, 2004,
with the comment period lasting until July 6, 2004. The National Park
Service received 2,550 timely written responses regarding the proposed
regulation. Of the responses, 2,486 were form letters in 4 different
formats, and 64 were separate letters. Of the 64 separate letters, 56
were from individuals, 5 from organizations, and 3 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. Bluewater Network 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 are used, and
personal observations of park staff. The NPS believes that the EA is in
full compliance with National Environmental Policy Act (NEPA) and that
the Findings of No Significant Impacts (FONSI) shows Alternative B
(continued PWC use with restrictions) as the Preferred Alternative and
that decision has been adequately analyzed and explained.
2. Several commenters stated that allowing PWC use with additional
restrictions violates the park's enabling legislation and NPS mandate
to protect resources from harm.
NPS Response: NPS analysis of PWC use has found that the use is
appropriate and consistent with the Bighorn Canyon National Recreation
Area's enabling legislation. The authorizing legislation for Bighorn
Canyon was considered when developing alternatives for the EA. The
objective of the EA, as described in the ``Purpose and Need'' chapter,
was derived from the enabling legislation for Bighorn Canyon. The
recreation area's enabling legislation also states that the ``Secretary
shall administer Bighorn Canyon National Recreation Area for general
purposes of public outdoor recreation.'' The recreation area was
established as a unit of the national park system. The goal of the
national recreation area is to provide each visitor with an
educational, enjoyable, safe and memorable experience.
As a result, the alternatives presented in the EA protect resources
and values while providing recreational opportunities at Bighorn Canyon
National Recreation Area. 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. Implementation of Alternative B in the
final rule will not result in impairment of park resources and values
for which the Bighorn Canyon National Recreation Area was established.
3. One commenter stated the analysis did not adequately consult
with and seek the expertise of various agencies, which appears to
violate the NPS' PWC regulations.
NPS Response: The final PWC regulation published by the NPS in
March 2000 indicates that we intend to seek the expertise of the U.S.
Environmental Protection Agency (EPA), OSHA and other relevant agencies
and literature when deciding whether to allow continued PWC use in
units of the National Park System. The EA references EPA and OSHA
regulations and studies throughout.
We sent out 68 letters to other Federal, State, local agencies
including U.S. Fish and Wildlife, Wyoming Game and Fish Department,
Montana Fish Wildlife and Parks, Bureau of Reclamation, Wyoming
Department of Environmental Quality, Montana Department of
Environmental Quality (the State agencies charged with application of
EPA regulations in Wyoming and Montana), Bighorn National Forest,
Gallatin National Forest, Bureau of Land Management, U.S. Environmental
Protection Agency, U.S. Department of the Army Corps of Engineers,
Wyoming State Historic Preservation Office, Montana State Historic
Preservation Office, Crow Indian tribe, The Wilderness Society,
American Watercraft Association, National Parks Conservation
Association-Northern Rockies Regional Office, Zoo Montana Science and
Conservation Center, Big Horn Mountain Country Coalition, State and
Federal representatives and senators, and multiple Chambers of
Commerce. We have met the requirements for consultation as well as the
intent of the March 2000 PWC regulations.
4. Several commenters stated that the decision violates the Organic
Act and will result in the impairment of resources.
NPS Response: The ``Summary of Laws and Policies'' section in the
``Environmental Consequences'' chapter of the PWC Use EA summarizes the
three overarching laws that guide the National Park Service in making
decisions concerning protection of park resources. These laws, as well
as others, are also reflected in the NPS Management Policies. An
explanation of how the National Park Service applied these laws and
policies to analyze the effects of personal watercraft on Bighorn
Canyon National Recreation Area resources and values can be found under
``Impairment Analysis'' in the ``Methodology'' section of that chapter.
An impairment to a particular park resource or park value must rise
to the magnitude of a major impact, as defined by its context,
duration, and intensity and must also affect the ability of the
National Park Service to meet its mandates as established by Congress
in the park's governing legislation. ``Impairment'' is clearly defined
in the EA (page 83) and is the most severe of the five potential impact
categories. The other impact categories starting with the least severe
are: negligible, minor, moderate, and major. For each resource topic,
the EA establishes thresholds or indicators of magnitude of impact. An
impact approaching a ``major'' level of intensity is one indication
that impairment could result. For each impact topic, when the intensity
approached ``major,'' the park would consider mitigation measures to
reduce the potential for ``major'' impacts, thus reducing the potential
The National Park Service has determined that under the final rule
implementing the preferred alternative, Alternative B, there will be no
negative impacts on park resources or values, nor impairment of any
park resources or values for which the Bighorn Canyon National
Recreation Area was established.
5. Several commenters stated that the proposed restrictions under
Alternative B discriminate against PWC because Alternative B regulates
PWC use on Bighorn Lake more restrictively than other motorized vessels
without any reasonable justification.
NPS Response: The EA was written in response to a lawsuit by
Bluewater Network and the subsequent settlement agreement regarding the
appropriateness of PWC use within the National Park System. The
objective of the Environmental Assessment, as described in the
``Purpose and Need'' Chapter, was to evaluate a range of alternatives
and strategies for the management of PWC use in order to ensure the
protection of park resources and values, while offering recreational
opportunities as provided in the enabling legislation, purpose,
mission, and goals. A special analysis on the management of personal
watercraft was provided under each alternative to meet the terms of the
settlement agreement between the Bluewater Network and the NPS. The
plan was designed to determine if PWC use, not motorized boat use in
general, was consistent with the park's enabling legislation and
management goals and objectives.
6. The U.S. EPA suggested that PWC in the NRA be limited to 4-
stroke engines, which will be the best way to meet NPS management
policies for protection of air, natural soundscapes, and for the use of
NPS Response: Impacts on water and air from PWC use are discussed
in the EA on pages 76 to 100, and are negligible to minor for
Alternative B. Impacts on soundscapes, discussed on pages 100 to 108,
are negligible to moderate for Alternative B. PWC use at Bighorn Canyon
is small, and limiting the use to only 4-stroke engines would not
appreciably affect air, water or soundscape resources.
Comments Regarding Air Quality
7. One commenter stated that the analysis failed 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 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 reservoir and the location of refueling (inside or
outside of the airshed).
8. One commenter stated that the use of air quality data from Cody,
Wyoming, and Billings, Montana, some 50 miles and 90 miles from Bighorn
Canyon NRA, in the analysis does not provide the best representation of
air quality at the lake.
NPS Response: The Cody and Billings monitoring stations are the
closest air quality monitoring sites to the study area. The data from
these sites were discussed in the EA; however, these data were not used
in the impact analysis. The analysis was based on the results of an EPA
air emissions model, which used estimated PWC and boat usage at Bighorn
Canyon NRA as inputs.
9. One commenter expressed concern that PWC emissions were
declining faster than forecasted by the EPA. As the Sierra Report
documents, in 2002, hydrocarbon (HC) and nitrogen oxides
(NOX) emissions from the existing fleet of PWC were already
23% lower than they were before the EPA regulations became effective,
and will achieve reductions greater than 80% by 2012.
NPS Response: The U.S. EPA's data incorporated into the 1996 Spark
Ignition Marine Engine rule were used as the basis for the assessment
of air quality, and not the Sierra Research data. It is agreed that
these data show a greater rate of emissions reductions than the
assumptions in the 1996 Rule and in the EPA's NONROAD Model, which was
used to estimate emissions. However, the 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 and NOX
are a very small proportion of the county based emissions and that this
proportion will continue to be reduced over time. The EA takes this
into consideration in the analysis.
California Air Resources Board (CARB) certified PWCs 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
Spark Ignition 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.
10. Several commenters stated that research indicated that direct-
injection 2-stroke engines are dirtier than 4-stroke engines.
NPS Response: It is agreed that two-stroke carbureted and two-
stroke DI engines generally emit greater amounts of pollutants than
four-stroke engines. Only 4 of the 20 PAHs included in the analyses
were detected in water: naphthalene, 2-methylnaphthalene, fluorene, and
acenaphthylene. Some pollutants (benzene, toluene, ethylbenzene, and
xylene, collectively referred to as BTEX, and formaldehyde) were
reported by CARB in the test tanks after 24 hours at approximately 50%
the concentrations seen immediately following the test. No results for
PAH concentrations after 24 hours were seen in the CARB (2001) results,
but a discussion of sampling/analyses of PAHs in the six environmental
compartments was presented.
EPA NONROAD model factors differ from those of CARB. As a result of
the EPA rule requiring the manufacturing of cleaner PWC engines, the
existing carbureted 2-stroke PWC will, over time, be replaced with PWC
with less-polluting 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
Regarding the rate of evaporation of gasoline constituents, data
provided in CARB (2001), EPA (2001), and Verschuren (1983) do not
support the contention in the comment that ``most of the unburned
gasoline and gasoline additives * * * evaporate from water within the
first hour and 15 minutes after they are released.'' In CARB (2001),
the observation was made that at least 70% of the contaminant
concentrations remained in the water 2 hours after running the engines.
In most cases, often 40% or more of the concentration was still present
the following day. The loss rate observed by CARB (2001) is supported
by the EPA (2001) and Verschuren (1983) volatilization rate for
benzene. These two sources give the half-life of benzene as
approximately 5 hours at a water temperature of 30 degrees C. This
estimate of the benzene half-life was considered in evaluation of the
threshold volumes calculated for benzene.
Comments Regarding Water Quality
11. One commenter stated that the analysis disregarded or
overlooked relevant research regarding impacts to water quality from
PWC use as well as the impact to downstream resources and long term
site specific water quality data on PWC pollutants.
NPS Response: The EA states that in 2002 impacts to water quality
from PWC on a high-use day would be negligible for all chemicals
evaluated based on ecological and human health benchmarks and for
benzo(a)pyrene based on human health benchmarks. The EA states that in
2012, impacts would also be negligible based on all ecological and
human health benchmarks. Impacts to water quality downstream from the
lake are not expected to be more severe when the environmental
processes affecting concentrations of organics (e.g., evaporation,
dilution, deposition) are considered.
12. One commenter stated that the analysis represents an outdated
look at potential emissions from an overstated PWC population of
conventional 2-stroke engines, and underestimates the accelerating
changeover to 4-stroke and newer 2-stroke engines. The net effect is
that the analysis overestimates potential PWC hydrocarbon emissions,
including benzene and polyaromatic hydrocarbons (PAHs), to the water in
Bighorn Lake. In addition, the water quality analysis uses assumptions
that result in overestimation of potential PWC hydrocarbon emission to
the water in Bighorn Lake. For example, the analysis states that
benzo(a)pyrene concentrations in gasoline can be ``up to 2.8 mg/kg.''
NPS Response: Assumptions regarding PWC use (5 per day in 2002 and
6 per day in 2012) were based on actual count data from the month of
July 2002. PWC use at other times of the year ranged from 0 to 4 PWC
per day. Data for the years 2001 and 2002 were the only data available
for Bighorn Canyon (EA, page 75). Because data from other years were
not available, trends in PWC use at Bighorn Canyon could not be
determined for use in the EA. The July 2002 data can be considered a
``worst case'' estimate, but it is not ``unrealistic'' since it is
based on actual Bighorn Canyon data. Despite these conservative
estimates, impacts to water quality from personal watercraft are judged
to be negligible for all alternatives evaluated. Cumulative impacts
from personal watercraft and other outboard motorboats are expected to
be negligible. If the assumptions used were less than conservative, the
conclusions could not be considered protective of the environment,
while still being within the range of expected use.
The 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 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).
Comments Regarding Wildlife and Threatened and Endangered Species
13. One commenter stated that the analysis lacked site-specific
data for impacts to wildlife, fish, and threatened and endangered
species at Bighorn Lake.
NPS Response: The scope of the EA did not include the conduct of
site-specific studies regarding potential effects of PWC use on
wildlife species at Bighorn Lake National Recreation Area. Analysis of
potential impacts of PWC use on wildlife at the national recreation
area was based on best available data, input from park staff, and the
results of analysis using that data. The EA still includes a thorough
analysis of impacts on wildlife and threatened and endangered species
using this approach.
14. 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. James Rodgers of the Florida Fish
and Wildlife Conservation Commission, whose studies have shown that PWC
are no more likely to disturb wildlife than any other form of human
interaction. PWC posed less of a disturbance than other vessel types.
Dr. Rodgers' research clearly shows that there is no reason to
differentiate PWC from motorized boating based on claims on wildlife
NPS Response: We agree 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. Rogers recommends that buffer zones be established,
creating minimum distances between boats (personal watercraft and
outboard motorboats) and nesting and foraging waterbirds. Under
Alternative B, the area south of the South Narrows will be closed to
PWC use, but there will be no other shoreline restrictions related to
wildlife and wildlife habitat. ``No-wake'' speeds must be maintained
when within 200 feet of a dock, swimmer, swimming raft, non-motorized
boat or anchored vessel in Montana, and within 100 feet in Wyoming.
Impacts to wildlife and wildlife habitat under all the alternatives
were judged to be negligible to moderate from all visitor activities.
Comments Regarding Soundscapes
15. One commenter stated that continued PWC use in the Bighorn
Canyon NRA will not result in sound emissions that exceed the
applicable Federal or State noise abatement standards, and
technological innovations by the PWC companies will continue to result
in substantial sound reductions.
NPS Response: The NPS concurs that on-going and future improvements
in engine technology and design would likely further reduce the noise
emitted from PWC. However, given the low level of PWC use, a reduction
in ambient noise levels in the recreation area is unlikely even with
improved technology and would unlikely reduce impacts beyond minor to
moderate through out the recreation area.
16. One commenter stated that the NPS places too much hope in new
technologies significantly reducing PWC noise since there is little
possibility that the existing fleet of more than 1.1 million machines
(most of which are powered by conventional two-stroke engines) will be
retooled to reduce noise. This commenter was also concerned that the
conclusions of relevant PWC noise studies, such as Drowning in Noise,
Noise Costs of PWC in America, were disregarded.
NPS Response: The analysis of the preferred alternative states that
noise from PWC would continue to have minor to moderate, temporary
adverse impacts, and that impact levels would be related to number of
PWC and sensitivity of other visitors. This recognizes that noise will
occur and will bother some visitors, but site-specific modeling was not
needed to make this assessment. The availability of noise reduction
technologies is also growing, and we are not aware of any scientific
studies that show these technologies do not reduce engine noise levels.
Also, the analysis did not rely heavily on any future noise reduction
technology. It recognizes that the noise from the operation of PWC will
depending on the speed, manner of use, and wave action present.
Although PWC use does occur throughout the lake, it is concentrated
more in certain areas, and this is noted in the soundscapes impact
analysis that follows the introductory statements and assumptions
listed on page 105 of the EA. The analysis of impacts states that
``minor adverse impacts would occur at times and places where use is
infrequent and distanced from other park users, for example, as PWC
users operated far from shore. Moderate adverse impacts would occur at
landings on the lake on days of relatively consistent PWC operation
with more than one PWC operating at one time. Moderate adverse impacts
would occur from highly concentrated PWC use in one area and in areas
where PWC noise is magnified off the surrounding cliffs.'' The analysis
did not assume even distribution of PWC and predicted moderate impacts
from concentrated PWC use in one area.
The noise annoyance costs in the ``Drowning in Noise'' study are
recognized in the EA by the moderate impacts predicted, although no
monetary costs are assigned. These costs would vary by type and
location of user. Given the intended usage of the higher use marina/
beach areas of Bighorn Canyon and visitor expectations and tolerances
at these areas, it is unlikely that the PWC noise experienced there
would meet the definition of ``major'' impact, as defined in the EA.
Comments Regarding Cultural Resources
17. One commenter stated that the analysis refers to a potential
concern that the ability of PWC operators to access remote areas of the
park unit might make certain cultural, archeological and ethnographic
sites vulnerable to looting or vandalism. However, there is no
indication of any instances where these problems have occurred. Nor is
there any reason to believe that PWC users are any more likely to pose
these concerns than canoeists, kayakers, hikers, or others who might
access these same areas.
NPS Response: The EA was focused on the analysis of impacts from
PWC use. PWC can make it easier to reach some remote upstream areas,
compared to hiking to these areas, but we agree that the type of
impacts to cultural resources from any users of remote areas of the
park would be similar if they can reach these areas.
Comments Associated With Safety
18. 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. Further, there have been few
PWC accidents reported in the Bighorn Canyon NRA.
NPS Response: The mediating factors described in the comment are
recognized. However, these factors are unlikely to fully explain the
large difference in percentages (personal watercraft are only 7.5% of
nationally registered vessels, yet they are involved in 36% of reported
accidents). In other words, personal watercraft are 5 times more likely
to have a reportable accident than are other boats. This difference is
even more significant when canoes and kayaks, which are not required to
be registered but are included in the total number of accidents, are
considered. Despite these national boating accident statistics, impacts
of PWC use and visitor conflicts are judged to be negligible relative
to swimmers and minor relative to other motorboats at the national
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 in the recreation area are
estimated to go unreported.
19. One commenter stated that there was no discussion regarding PWC
fire and explosion hazards. According to the U.S. Coast Guard, the PWC
industry has recalled more than 280,000 watercraft over the past ten
years with production/design problems that could lead to fires and
NPS Response: According to the National Marine Manufacturers
Association, PWC manufacturers have sold roughly 1.2 million watercraft
during the last ten years. Out of 1.2 million PWC sold the U.S. Coast
Guard had only 90 reports of fires/explosions in the years from 1995-
1999. This is less than 1% of PWC boats having reports of problems
associated with fires/explosions. As far as the recall campaigns
conducted by Kawasaki and Bombardier, the problems that were associated
with fuel tanks were fixed. Kawasaki conducted a recall for potentially
defective fuel filler necks and fuel tank outlet gaskets on 23,579 PWCs
from the years 1989 and 1990. The fuel tank problems were eliminated in
Kawasaki's newer models, and the 1989 and 1990 models are most likely
not in use anymore since life expectancy of a PWC is only five to seven
years, according to PWIA. Bombardier also did a recall for its 1993,
1994, and 1995 models to reassess possible fuel tank design flaws.
However, the number of fuel tanks that had to be recalled was a very
small percent of the 1993, 1994, and 1995 fleets because fuel tank
sales only amounted to 2.16% of the total fleet during this period
(Bombardier Inc.). The replacement fuel tanks differed from those
installed in the 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 were
approximately 38% of the total recall, far exceeding its 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
annually, or whenever a new product is put on the market, boat model
lines to determine that they satisfy not only the U.S. Coast Guard
Regulations but also the more rigorous standards based on those
established by the American Boat and Yacht Council.
Comments Related to Visitor Experience and Satisfaction
20. One commenter stated that several of the restrictions under
Alternative B, such as the PWC-only exclusion zone south of the South
Narrows and the PWC-user education program discriminate without any
justification against PWC users.
NPS Response: The EA was designed to determine if personal
watercraft use was consistent with the park's enabling legislation and
management goals and objectives, not to determine if these restrictions
should also apply to boats. That analysis must be completed as part of
a separate EA.
21. One commenter is concerned that PWC operators are not being
cited for violating regulations.
NPS Response: Park officials have issued citations under Montana
and Wyoming state law to PWC users for acts such as wake jumping,
under-age riding, and failing to wear floatation devices. Due to the
configuration of the lake, and the fact that PWC comprise only
approximately 4% of the boat use on Bighorn Lake, it is unlikely that a
visitor would witness a PWC operator being cited for a violation.
Comments Regarding Socioeconomics
22. One commenter is concerned that a PWC ban would have severe
economic effects on the local economies surrounding the NRA, which
receive their livelihoods from PWC users as well as other
NPS Response: The economic analysis evaluated the socioeconomic
impact of each alternative. NPS anticipates that the final rule
implementing Alternative B will actually increase benefits to local
businesses compared to the baseline of continuing the PWC ban.
Increased benefits to local businesses from this alternative are
estimated between $33,110 and $156,300 per year. These increased
benefits will result from the permitted PWC use under this alternative.
Comments Regarding Consultation and Coordination
23. The U.S. EPA commented that the rule is unclear about the Crow
Indian Tribe's comments or reservations about the action, and if there
was any consultation with the Tribe.
NPS Response: The Crow Tribe received a copy of the EA in August
2003. Although no written comments were received from the tribe,
Bighorn Canyon staff had conversations with the tribe about the
project, and no issues were raised.
Summary of Economic Impacts
Alternative A would permit PWC use as previously managed within the
park before the November 7, 2002, ban, while Alternative B would permit
PWC use with additional management strategies. Alternative B is the
preferred alternative, and includes a closure of the reservoir and
shoreline south of the area known as the South Narrows, and a PWC user
education program implemented through vessel inspections, law
enforcement contacts, and signing. Alternative C is the no action
alternative and represents the baseline conditions for this economic
analysis. Under that alternative, the November 7, 2002, ban would be
continued. All benefits and costs associated with Alternatives A and B
are measured relative to that baseline.
The primary beneficiaries of Alternatives A and B would be the park
visitors who use PWCs and the businesses that provide services to PWC
users such as rental shops, restaurants, gas stations, and hotels.
Additional beneficiaries include individuals who use PWCs outside the
park due to the November 7, 2002 ban. Over a ten-year horizon from 2003
to 2012, the present value of benefits to PWC users is expected to
range between $540,900 and $693,650, depending on the alternative
analyzed and the discount rate used. The present value of benefits to
businesses over the same timeframe is expected to range between $27,420
and $210,640. These benefit estimates are presented in Table 1. The
amortized values per year of these benefits over the ten-year timeframe
are presented in Table 2.
Table 1.--Present Value of Benefits for PWC Use in Bighorn Canyon National Recreation Area, 2003-2012
[2001 $] a
PWC users Businesses Total
Discounted at 3% b........ $693,650 $36,980 to $210,640............ $730,630 to $904,290.
Discounted at 7% b........ 569,370 $29,230 to $166,440............ $598,600 to $735,810.
Discounted at 3% b........ 658,960 $34,700 to $196,470............ $693,660 to $855,430.
Discounted at 7% b........ 540,900 $27,420 to $155,240............ $568,320 to $696,140.
a Benefits were rounded to the nearest ten dollars, and may not sum to the indicated totals due to independent
b Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount rate
when analyzing impacts to private consumption.
Table 2.--Amortized Total Benefits per Year for PWC Use in Bighorn
Canyon National Recreation Area, 2003-2012
Amortized total benefits per year
Discounted at 3% b............. $85,652 to $106,010.
Discounted at 7% b............. $85,227 to $104,763.
Discounted at 3% b............. $81,318 to $100,282.
Discounted at 7% b............. $80,916 to $99,115.
a This is the present value of total benefits reported in Table 1
amortized over the ten-year analysis timeframe at the indicated
b Office of Management and Budget Circular A-4 recommends a 7% discount
rate in general, and a 3% discount rate when analyzing impacts to
The primary group that would incur costs under Alternatives A and B
would be the park visitors who do not use PWCs and whose park
experiences would be negatively affected by PWC use within the park. At
Bighorn Canyon National Recreation Area, non-PWC uses include boating,
canoeing, fishing, and hiking. Additionally, the public could incur
costs associated with impacts to aesthetics, ecosystem protection,
human health and safety, congestion, nonuse values, and enforcement.
However, these costs could not be quantified because of a lack of
available data. Nevertheless, the magnitude of costs associated with
PWC use would likely be greatest under
Alternative A, and lower for Alternative B due to increasingly
stringent restrictions on PWC use.
Because the costs of Alternatives A and B could not be quantified,
the net benefits associated with those alternatives (benefits minus
costs) also could not be quantified. However, from an economic
perspective, the selection of Alternative B as the preferred
alternative was considered reasonable even though the quantified
benefits are smaller than under Alternative A. That is because the
costs associated with non-PWC use, aesthetics, ecosystem protection,
human health and safety, congestion, and nonuse values would likely be
greater under Alternative A than under Alternative B. Quantification of
those costs could reasonably result in Alternative B having the
greatest level of net benefits.
Changes to the Final Rule
Based on the preceding comments and responses, the NPS has made no
changes to the proposed rule language with regard to PWC operations.
Compliance With Other Laws
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and has not been reviewed
by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. The National Park Service has completed the report
entitled ``Economic Analysis of Management Alternatives for Personal
Watercraft in Bighorn Canyon National Recreation Area'' (MACTEC
Engineering and Consulting, Inc., July 2003).
(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
(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
(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, but the specific effects of this rule are nominal.
Regulatory Flexibility Act
The Department of the Interior certifies that this rulemaking will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on a report entitled ``Economic Analysis of
Management Alternatives for Personal Watercraft in Bighorn Canyon
National Recreation Area'' (MACTEC Engineering and Consulting, Inc.,
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This proposed rule:
a. Does not have an annual effect on the economy of $100 million or
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. This rule is an
agency specific rule and does not impose any other requirements on
other agencies, governments, or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A taking implication assessment is
not required. No taking of personal property will occur as a result of
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment. This rule only affects use of NPS administered
lands and waters. It has no outside effects on other areas by allowing
PWC use in specific areas of the park.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB Form 83-I is not required.
National Environmental Policy Act
As a companion document to the NPRM, NPS issued the Personal
Watercraft Use Environmental Assessment for Bighorn Canyon National
Recreation Area. The EA was available for public review and comment for
the period June 9, 2003, through July 11, 2003. A Finding of No
Significant Impact (FONSI) was signed on April 26, 2005. To request a
copy of these documents call (406) 666-2412 or write Bighorn Canyon
National Recreation Area, Attn: PWC EA, P.O. Box 7458, Fort Smith,
Montana 59035. Requests may be e-mailed to [email protected]. A
copy of the EA and FONSI may also be found at www.nps.gov/bica/pphtml/documents.html.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential
effects on Federally recognized Indian tribes and have determined that
there are no potential effects.
Administrative Procedure Act
This final rule is effective upon publication in the Federal
Register. In accordance with the Administrative Procedure Act,
specifically, 5 U.S.C.
553(d)(1), this rule, 36 CFR 7.92(d), is exempt from the requirement of
publication of a substantive rule not less than 30 days before its
As discussed in this preamble, the final rule is a part 7 special
regulation for Bighorn Canyon National Recreation Area that relieves
the restrictions imposed by the general regulation, 36 CFR 3.24. The
general regulation, 36 CFR 3.24, prohibits the use of PWC in units of
the national park system unless an individual park area has designated
the use of PWC by adopting a part 7 special regulation. The proposed
rule was published in the Federal Register (69 FR 25043) on May 5,
2004, with a 60-day period for notice and comment consistent with the
requirements of 5 U.S.C. 553(b). The Administrative Procedure Act,
pursuant to the exception in paragraph (d)(1), waives the section
553(d) 30-day waiting period when the published rule ``grants or
recognizes an exemption or relieves a restriction.'' In this rule the
NPS is authorizing the use of PWCs, which is otherwise prohibited by 36
CFR 3.24. As a result, the 30-day waiting period before the effective
date does not apply to the Bighorn Canyon National Recreation Area
List of Subjects in 36 CFR Part 7
District of Columbia, National Parks, Reporting and recordkeeping
For the reasons stated in the preamble, the National Park Service
amends 36 CFR part 7 as follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The authority for part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
2. Amend Sec. 7.92 by adding paragraph (d) to read as follows:
Sec. 7.92 Bighorn Canyon National Recreation Area.
* * * * *
(d) Personal Watercraft (PWC). (1) PWC use is allowed in Bighorn
Canyon National Recreation Area, except in the following areas:
(i) In the gated area south of Yellowtail Dam's west side to
spillway entrance works and Bighorn River from Yellowtail Dam to cable
3,500 feet north.
(ii) At Afterbay Dam from fenced areas on west side of dam up to
(iii) In Afterbay Lake, the area between dam intake works and buoy/
cable line 100 feet west.
(iv) At Government docks as posted.
(v) At the Ok-A-Beh gas dock, except for customers.
(vi) From Yellowtail Dam upstream to the log boom.
(vii) In Bighorn Lake and shoreline south of the area known as the
South Narrows (legal description R94W, T57N at the SE corner of Section
6, the SW corner of Section 5, the NE corner of Section 7, and the NW
corner of Section 8). Personal watercraft users are required to stay
north of the boundary delineated by park installed buoys.
(2) The Superintendent may temporarily limit, restrict, or
terminate access to the areas designated for PWC use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives.
Dated: May 12, 2005.
Deputy Assistant Secretary for Fish And Wildlife and Parks.
[FR Doc. 05-10855 Filed 5-31-05; 8:45 am]
BILLING CODE 4312-52-P