[Federal Register: March 21, 2000 (Volume 65, Number 55)]
[Rules and Regulations]
[Page 15077-15090]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21mr00-6]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1, 3 and 13
RIN 1024-AC65
Personal Watercraft Use Within the NPS System
AGENCY: National Park Service, (NPS), Interior
ACTION: Final rule.
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SUMMARY: This rule will prohibit personal watercraft (PWC) in areas of
the National Park System unless the NPS determines that PWC use is
appropriate for a specific area based on that area's enabling
legislation, resources and values, other visitor uses and overall
management objectives. This rule describes a process that will allow
continued PWC use in some areas and will enable us to protect visitors
and resources while managing the use of personal watercraft.
EFFECTIVE DATE: April 20, 2000.
ADDRESSES: Mail inquiries to: NPS--Ranger Activities Division, Room
7408, 1849 C Street NW, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Chip Davis at the above address or by
calling 202-208-4874.
SUPPLEMENTARY INFORMATION:
Background
The NPS is granted broad statutory authority under various acts of
Congress to manage and regulate water activities in areas of the
National Park System, 16 United States Code (U.S.C.), and 16 U.S.C. 1a-
2(h) and 3. The Organic Act, 16 U.S.C. 1 et seq., authorizes the NPS to
``* * * regulate the use of the Federal areas known as national parks,
monuments, and reservations * * * by such means and measures as conform
to the fundamental purpose of the said parks * * * which purpose is to
conserve the scenery and the natural and historic objects and the
wildlife therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the
enjoyment of future generations.'' Congress has also emphasized that
the ``* * * authorization of activities shall be construed and the
protection management and administration of these areas 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, except as may have been or shall be directly and
specifically provided by congress.'' 16 U.S.C. 1a-1. The
appropriateness of a visitor use or recreational activity will vary
from park to park. NPS Management Policies states that ``* * * because
of differences in individual park enabling legislation and resources
and differences in the missions of the NPS and other Federal agencies,
an activity that is entirely appropriate when conducted in one location
may be inappropriate if conducted in another'' (Chapter 8:2-3).
NPS Management Policies provide further direction in implementing
the intent of the congressional mandate and other applicable Federal
legislation. The policy of the NPS regarding protection and management
of natural resources is ``The National Park Service will manage the
natural resources of the national park system to maintain,
rehabilitate, and perpetuate their inherent integrity'' (Chapter 4:1).
The Organic Act and the other statutory authorities of the NPS vest
us with substantial discretion in determining how best to manage park
resources and provide for park visitors. ``Courts have noted that the
Organic Act is silent as to the specifics of park management and that
`under such circumstances, the Park Service has broad discretion in
determining which avenues best achieve the Organic Act's mandate. * * *
* Further, the Park Service is empowered with the authority to
determine what uses of park resources are proper and what proportion of
the park resources are available for each use.'' Bicycle Trails Council
of Marin v. Babbitt, 82 F.3d 1445, 1454 (9th Cir. 1996), quoting
National Wildlife Federation v. National Park Service, 669 F. Supp.
384, 390 (D.Wyo. 1987). In reviewing a challenge to NPS regulations at
Everglades National Park, the court stated, ``The task of weighing the
competing uses of Federal property has been delegated by Congress to
the Secretary of the Interior. * * * Consequently, the Secretary has
[[Page 15078]]
broad discretion in determining how best to protect public land
resources.'' Organized Fishermen of Florida v. Hodel, 775 F.2d 1544,
1550 (11th Cir. 1985), cert. denied, 476 U.S. 1169 (1986). There is a
limitation on this discretion.
Over the years, NPS areas have been impacted with new, and what
often prove to be controversial, recreational activities. These
recreational activities tend to gain a foothold in NPS areas in their
infancy, before a full evaluation of the possible impacts and
ramifications that expanded use will have on the area can be initiated,
completed and considered. PWC use fits this category.
PWC use is a relatively new recreational activity that has been
observed in about 32 of the 87 areas of the National Park System that
allow motorized boating. PWCs are high performance vessels designed for
speed and maneuverability and are often used to perform stunt-like
maneuvers. PWC includes vessels commonly referred to as jet ski,
waverunner, wavejammer, wetjet, sea-doo, wet bike and surf jet. Over
1.3 million PWCs are in use today with annual sales of approximately
150,000 units. The Personal Watercraft Industry Association (PWIA),
which consists of about five or six PWC manufacturers, coined the term
``Personal Watercraft.''
This rule takes a conservative approach to managing PWC use in
areas of the National Park System based on consideration of the
potential resource impacts, conflicts with other visitors' uses and
enjoyment, and safety concerns. The rule prohibits PWC use in areas of
the National Park System unless we determine that PWC use is
appropriate for a specific area based on that area's enabling
legislation, resources, values, other visitor uses, and overall
management objectives.
It is the policy of the National Park Service to regulate motorized
recreational activity in park areas to mitigate resource degradation.
It is our intention to utilize the expertise of the Environmental
Protection Agency, Occupational Safety and Health Administration and
other cooperating agencies as a way of maintaining the environmental
integrity of park areas.
The rule allows two methods of authorizing PWC use. The first
method is available for a relatively small group of Park Service areas
(10 park areas identified in Table 1) where authorization might be
appropriately and successfully accomplished through the Park
Superintendent's Compendium, a locally based procedure described in 36
CFR 1.5 and 1.7. This method is referred to as Park Designated PWC Use.
The second method, Special Regulation rulemaking through the Federal
Register, is available for all park areas (including the 10 park areas
in Table 1) where authorization of PWC use may be deemed appropriate.
This method is referred to in this rule as Special Regulation PWC Use.
As an interim measure, a two-year grace period is available to NPS
areas listed in the regulation. Park areas are identified for inclusion
on the two tables established in this rule based upon whether there is
current PWC use and an area's enabling legislation, resources, values,
other visitor uses, and overall management objectives for the
individual park area. The grace period would allow PWC use to continue,
with any necessary and appropriate restrictions, while park managers
evaluates the impact of PWC use in the identified park area.
Superintendents may restrict PWC use through zoning, hour limits, etc.,
during the grace period. PWC use could also be closed during the grace
period in any area through the compendium procedures, by following the
public process described in 36 CFR 1.5 and 1.7.
The first method for authorizing PWC use in park areas is through
the Park Superintendent's Compendium. The following areas are in this
Park Designated PWC Use category:
Table 1.--Park Designated PWC Use
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Name Water type State
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Amistad National Recreation Area.................... Impounded Lake.................. TX
Bighorn Canyon National Recreation Area............. Impounded Lake.................. MT
Chickasaw National Recreation Area.................. Impounded Lake.................. OK
Curecanti National Recreation Area.................. Impounded Lake.................. CO
Gateway National Recreation Area.................... Open Ocean/Bay.................. NY
Glen Canyon National Recreation Area................ Impounded Lake.................. AZ/UT
Lake Mead National Recreation Area.................. Impounded Lake.................. AZ/NV
Lake Meredith National Recreation Area.............. Impounded Lake.................. TX
Lake Roosevelt National Recreation Area............. Impounded Lake.................. WA
Whiskeytown-Shasta-Trinity National Recreation Area. Impounded Lake.................. CA
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In these Park Designated areas, Table 1., PWC use could continue,
subject to management restrictions through the compendium, until April
22, 2002. After this date continued PWC use in these areas will require
authorization either by the compendium or by special regulation as
described below. During the grace period (April 20, 2000 to April 22,
2002) no authorizing administrative action is needed to allow PWCs to
continue to operate in the park areas identified in Table 1. The grace
period maintains the authority requirements that existed prior to the
adoption of this regulation for two years. The compendium procedures
authorize the superintendent to restrict or allow activities, among
other things, ``for the maintenance of public health and safety,
protection of environmental or scenic values, protection of natural or
cultural resources, * * * or the avoidance of conflict among visitor
use activities.'' 36 CFR 1.5(a). These procedures authorize the
superintendent to take such actions using locally based methods, unless
the proposed action ``is of a nature, magnitude and duration that will
result in a significant alteration in the public use pattern of the
park area, adversely affect the park's natural, aesthetic, scenic or
cultural values, require a long-term or significant modification in the
resource management objectives of the area, or is of a highly
controversial nature * * *`` 36 CFR 1.5(b). In these circumstances, the
superintendent must elevate the authorization to a Special Regulation
rulemaking through the Federal Register, which is the authorization
procedure required by this rule of all other areas of the National Park
System designating PWC use.
A review of the legislation establishing these ten Park Designated
areas shows that water-related recreation was a primary purpose for
[[Page 15079]]
these ten parks and they are characterized by substantial motorized
use. Nine of the park areas contain man-made lakes created by the
construction of dams, and one park area has open ocean or bay waters.
It has been our experience that visitors to all ten areas appear
generally to expect and accept a variety of motorized boating,
including PWCs.
Whether a regulation or a compendium has been adopted to designate
the use of PWCs in an area, the superintendent maintains the authority
under 36 CFR 1.5 to manage the PWC use within these areas, e.g., by
area closures, public use limits or other restrictions.
The second method for authorizing PWC use in park areas is a
Special Regulation rulemaking in the Federal Register. The following
areas covered by the two-year grace period are in this Special
Regulation category:
Table 2.--Special Regulation PWC Use
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Name Water type State
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Assateague Island National Seashore................. Open Ocean/Bay.................. MD/VA
Cape Cod National Seashore.......................... Open Ocean/Bay.................. MA
Cape Lookout National Seashore...................... Open Ocean/Bay.................. NC
Cumberland Island National Seashore................. Open Ocean/Bay.................. GA
Fire Island National Seashore....................... Open Ocean/Bay.................. NY
Gulf Islands National Seashore...................... Open Ocean/Bay.................. FL/MS
Padre Island National Seashore...................... Open Ocean/Bay.................. TX
Indiana Dunes National Lakeshore.................... Natural Lake.................... IN
Pictured Rocks National Lakeshore................... Natural Lake.................... MI
Delaware Water Gap National Recreation Area......... River........................... PA/NJ
Big Thicket National Preserve....................... River........................... TX
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In these Special Regulation areas, Table 2., PWC use could continue
during the grace period, subject to appropriate limited restrictions
through the compendium, until April 22, 2002. During this two-year
grace period, the superintendents of these areas would be able to
develop special regulations to allow PWC use to continue. After April
22, 2002, PWC use in these areas can be authorized only by special
regulation as described below.
The Special Regulation method provides publication in the Federal
Register with nationwide notice and opportunity to comment on any
proposal to authorize PWC use in an area of the NPS. This method is
similar to the approach we have used on other activities that raise
questions of resource impacts, visitor use conflicts, or significant
controversy, such as snowmobile and off-road vehicle use, bicycle use
in undeveloped park zones, aircraft landing, and hang-gliding. (See,
e.g., 36 CFR 2.17, 2.18, and 4.30).
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Two year grace period After two years
Classification -------------------------------------------------------------------------------
Open Closed Open Closed
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Park Designated Areas (36 CFR Yes, Manage PWC by No, Can close by No, Except by Yes, If no
1.5 & 1.7) (10 Areas). Compendium. Compendium. Compendium or Compendium or
Special Special
Regulation. Regulation in
place.
Special Regulation Areas (11 Yes, Manage PWC by No, Can close by No, Except by Yes, If no Special
Areas). Compendium. Compendium. Special Regulation in
Regulation. place.
All Other Areas................. No, Except by Yes, Closed by No, Except by Yes, If no Special
Special General PWC Special Regulation in
Regulation. Regulation. Regulation. place.
----------------------------------------------------------------------------------------------------------------
Our conservative approach to authorizing PWC use in areas of the
NPS reflects many concerns that have been raised about such use. These
concerns, detailed in the preamble for the proposed rule, coupled with
an analysis of the comments received, lead us to conclude that PWC use
is inappropriate in most areas of the National Park System. We also
recognize that PWC use appears to be appropriate in certain park areas.
It is clear that Congress intended the NPS to manage an active
motorized water-based recreation program on the large man-made lakes of
Lake Mead and Glen Canyon National Recreation Areas and it seems
appropriate for PWC use to be part of that recreation program. The
[[Page 15080]]
final rule designates park areas where PWC use would be allowed. Any
designation must take into consideration the park area's enabling
legislation, resources and values and other visitor uses.
Twelve NPS areas are closed as a result of the current rulemaking,
(listed below, Group A). Two additional areas have existing closures by
prior park specific regulations, Everglades & Yellowstone National
Parks and two additional areas have horsepower and/or engine
restrictions which prohibit PWC use, Buffalo & Ozark National Rivers
(listed below Group B). Crescent Lake in Olympic National Park and
lakes in Glacier and North Cascades National Parks closed based on
public comment and hearings during the park General Management Plan
process. Additional lakes in Olympic NP may close during this
rulemaking.
Group A.--NPS Areas of Prior PWC Use That Closed During This Rulemaking
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Name Water type State
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Biscayne National Park.............................. Open Ocean/Bay.................. FL
Canaveral National Seashore......................... Open Ocean/Bay.................. FL
Golden Gate National Rec Area....................... Open Ocean/Bay.................. CA
Cape Hatteras National Seashore..................... Open Ocean/Bay.................. NC
Apostle Islands National Lakeshore.................. Natural Lake.................... WI
Isle Royal National Park............................ Natural Lake.................... MI
Glacier National Park............................... Natural Lake.................... MT
Olympic National Park............................... Natural Lake.................... WA
Sleeping Bear Dunes National Lakeshore.............. Natural Lake.................... MI
Canyonlands National Park........................... River........................... UT
Grand Canyon National Park.......................... River........................... AZ
St. Croix National Scenic Riverway.................. River........................... WI/MN
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Group B.--NPS Areas Closed to PWC Use By Other Prior Means
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Name Water type State
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Everglades National Park............................ Open Ocean/Bay.................. FL
Buffalo National Scenic River....................... River........................... AK
Ozark National Scenic Riverways..................... River........................... MO
Glacier National Park............................... Natural Lake.................... MT
Olympic National Park............................... Natural Lake.................... WA
Yellowstone National Park........................... Natural Lake.................... MT/WY
North Cascades National Park........................ Impounded Lake.................. WA
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The National Recreation Lakes Study Commission (NRLS) lists 1,782
federally managed man-made lakes and reservoirs. The NPS manages 82 of
these lakes, ( 4.6%). A number of the NPS managed lakes will have
continued PWC use. Therefore, well over 95% of the federally managed
recreation lakes will be unaffected by this rulemaking. The NRLS report
is available on the Department of Interior's web site www.doi.gov/nrls/
freq--ask.htm
Changes to the Final Rule
Some changes have been made to the lists of park areas that were in
the proposed rule. The two-year grace period described in the proposed
rule remains available to a limited number of listed park areas. The
grace period allows PWC use to continue, with any necessary
restrictions, while park management evaluates the future of PWC use in
the identified park area. Golden Gate and Chattahoochee National
Recreation Areas and Canaveral and Cape Hatteras National Seashores
were removed from the list. The Superintendents in these park areas
determined since the proposed rule was published that PWC use posed a
significant threat to park resources and values and adversely affected
the park experience of other visitors. Sleeping Bear Dunes National
Lakeshore was removed from the lists because the Superintendent
determined that PWC use interferes with park visitor's opportunity to
experience solitude and quiet in a near primitive environment. The
Superintendents closed park waters to PWC use after determining that
PWC use is not compatible with the purpose of the parks or the goals/
objectives for management of the parks. Therefore, these park areas no
longer need the coverage of the grace period.
Gulf Islands and Padre Island National Seashores were moved from
the list of areas in the proposed rule using the Superintendent's
compendium to authorize PWC use (Table 1) to the list of areas required
to use Special Regulation rulemaking in the Federal Register (Table 2)
in order to authorize the use of PWCs after the two year grace period.
These two park areas were moved to the Special Regulation list (Table
2) because the park areas listed in the Park Designated PWC Use
category (Table 1) are National Recreation Areas consisting of
impounded lakes with active boating programs (Gateway National
Recreation Area is also included in Table 1). It was determined that
the two National Seashores should be on the list (Table 2) with the
other National Seashores and subject to the same procedural
requirements of promulgating a Special Regulation if PWC use is to
continue after the two year grace period.
Big Thicket National Preserve was added to the list of areas
covered by the grace period in order to allow use of PWC to continue
during the Special Regulation rulemaking period (Table 2). Big Thicket
National Preserve should have been included in the list (Table 2) in
the proposed rule and was not included only because of an
administrative oversight by the NPS. Big Thicket National Preserve
satisfies the same criteria as the other park areas listed in Table 2.
There is current PWC use at Big Thicket Preserve as a recreational
activity consistent with the enabling act for the park. The use of PWCs
presently is consistent with the resources and values of the park, is
not causing any conflicts with other park visitors and is consistent
with the overall management objectives of the
[[Page 15081]]
park. The two-year grace period will enable these three park areas to
evaluate the impacts of continuation of use and the appropriateness of
future use as part of the rulemaking process.
As a result of comments received, specifically from the State of
Alaska, the proposed rule was changed to reflect the statutory (16
U.S.C. 3170) and regulatory (43 CFR 36.11) authority that exists
authorizing this use in Alaska park areas. The proposed rule has also
been changed for purposes of clarification by including in 36 CFR part
13, a definition of motorboat.
Summary of Comments
This rule was published in proposed form for public comment on
September 15, 1998 (63 FR 49312), with the comment period lasting until
November 16, 1998. The National Park Service received almost 20,000
timely written responses regarding the proposed regulation. Of the
responses 13,089 were form letters, 724 were individual letters, 778
were electronic mail, and 7,391 were signatures on 87 separate
petitions. Responses received included 14,688 from individuals, 1,639
from businesses, 5,650 from organizations, 2 from Federal agencies, and
3 from State governments.
Within the analysis, the term ``commenter'' refers to an
individual, business, or organization that responded. The term
``comments'' refers to statements made by a commenter.
Analysis of Comments
Issue 1
We received 12,783 comments from groups, organizations, and
individuals alleging discrimination in the prohibition of personal
watercraft use in National Park Service areas. Almost all of the
commenters stated that we could not prohibit one type of vessel in an
area, such as PWC, and allow all other vessels. They said that we could
not discriminate. The majority of these comments were from petitions
stating that we based the proposed rule on anecdotal evidence and not
scientific fact. They said that there was no basis to prohibit personal
watercraft use in National Parks.
NPS Response
The District of Columbia Court of Appeals in Personal Watercraft
Industry Association v. Department of Commerce, 48 F.3d 540 (D. C. Cir.
1995), ruled that an agency could discriminate and manage one type of
vessel (PWC) differently than other vessels, provided the agency
explains its reasons for doing so. The NPS regulation is intended to
give the agency an opportunity to evaluate the impacts of PWC use
before authorizing their use. This is the same general approach that
the NPS uses for snowmobiles, off-road vehicles and other similar
activities. PWC have been singled out because of the concerns raised by
park visitors and park managers. These concerns include visitor
conflicts, safety, inappropriate use, resource impacts, noise, wildlife
disturbance and pollution.
Issue 2
Numerous commenters suggested that we were abdicating our
responsibility to manage personal watercraft use by simply prohibiting
their use entirely. They stated that enforcement of existing rules and
regulations would remedy or mitigate problems and thus would not
discriminate against the vast majority of law abiding PWC users.
NPS Response
We recognize that enforcement of existing rules and regulations are
important; however, enforcement cannot completely prevent user
conflicts or resource damage. The NPS believes that giving
Superintendents the opportunity to evaluate the impact of personal
watercraft use to determine if the use is detrimental to a park's
natural, cultural, scenic, aesthetic or recreational values is the best
approach for regulating PWC use at this time.
Issue 3
We received several industry comments stating that the outspoken
views of certain park managers who object to personal watercraft use is
indicative of the widespread Service exclusionary attitude toward
personal watercraft.
NPS Response
We do not agree with this statement. There are park areas that will
allow uninterrupted PWC use to continue and several others that may
allow use after adopting a special regulation through public notice and
comment rulemaking process.
Issue 4
Numerous commenters stated that our reliance on the Everglades
National Park (ENP) report is flawed because it is not a scientific
study, more recent research is available, and that the opinions stated
in the ENP report are unsupported.
NPS Response
The ENP report stated that the Endangered Species Act specifically
allows for prohibition of activities that may have adverse impacts on
listed or proposed species, until studies determine otherwise. We
recognize the need for more research but do not subscribe to the idea
that there must be harm to the resources before we take action.
Further, this rule is not based on the findings of the Everglades
National Park Report. The report is merely an additional piece of
information supporting this rule.
Issue 5
Several commenters suggested that the erosion of solitude was due
to a steady increase in park visitation, not one specific type of
recreational vessel.
NPS Response
The average visitation has increased in park areas and the NPS is
working hard to maintain the purposes and values of the parks including
solitude. Personal watercraft use is one of the activities that can
have a direct and adverse effect on park values such as peace and
quiet. As stated in the NPS Management Policies, the appropriateness of
a visitor use or recreational activity will vary from park to park.
This is particularly true with uses like PWCs.
Issue 6
Numerous commenters stated that we are suggesting that one type of
park experience is more meaningful than another. They consider this
subjective or discriminatory toward the four million personal
watercraft users.
NPS Response
The implication is that we place less value on personal watercraft
use than other forms of recreation. The Organic Act is the gauge by
which the NPS evaluates recreational activities. Those activities that
are contrary to the Act must be prohibited. The damage to natural and
cultural resources and derogation of other values for which the park
was created must be minimized or eliminated in order to avoid
activities that permanently impair essential park resources.
Issue 7
Several commenters suggested that the proposed rule be withdrawn
and that any regulation of personal watercraft become a part of the
current National Park Service comprehensive planning for park use.
NPS Response
This rule provides for determinations based on the management
objectives of specific park areas. These objectives are part of the
comprehensive park planning process. The Organic Act establishes our
primary mission as the
[[Page 15082]]
preservation of parks' natural and cultural resources, while providing
for the enjoyment of the visitor. The appropriateness of a visitor use
or recreational activity may vary from park to park. NPS Management
Policies states that `` . . . because of differences in individual park
enabling legislation and resources and differences in the missions of
the NPS and other Federal agencies, an activity that is entirely
appropriate when conducted in one location may be inappropriate if
conducted in another'' (Chapter 8:2-3).
Issue 8
One organization commented on the social aspect of PWC, stating
that the proposed rule could be unfair to the over 1,000,000 PWC owners
and the over 3,000,000 family and friends who enjoy PWC use with those
owners.
NPS Response
The NPS manages a very small portion of the total U. S. water
recreation area available to U. S. citizens. There are numerous water
recreation areas available for PWC use other than NPS areas. We will
still provide recreation opportunity for PWC use in a number of NPS
areas where it is appropriate. Closure of some NPS areas to PWC use
will enhance the visitor experience for numerous visitors. NPS
management policies derive from the Organic Act and Congressional
mandates. Protection of sensitive resources is a primary objective of
NPS management. Our conservative approach to PWC use in NPS areas
allows us to meet this objective.
Issue 9
We received 271 comments indicating that we could not manage PWC
use in NPS areas and banning their use was a simple solution to the
problem.
NPS Response
PWC have been managed by various methods. This regulation is
another method for managing PWC use. As stated in this preamble, the
NPS is taking this conservative approach because it believes it is the
best method for managing PWC use at this time.
Issue 10
The State of Alaska commented that the proposed regulation was
silent on how the special access and procedural provisions of the
Alaska National Interest Lands Conservation Act (ANILCA) will be met
when regulating PWC use in Alaska's national park system units. The
comment noted that Section 1110(a) of ANILCA recognized that motorized
equipment used for recreation in the lower 48 states was, in Alaska,
often used for access for traditional activities. The comment also
stated that PWC use may be incompatible with the other uses and natural
values of many park units nationwide and in Alaska. The comment noted
that the State is particularly concerned about conflicts with other
boaters and other park users and impacts on wildlife, birds and aquatic
vegetation.
NPS Response
NPS shares the State's concern about the incompatibility of PWC's
within park units in Alaska and elsewhere in the United States; such
concerns have prompted this regulatory action. The proposed regulations
as well as the final regulations here apply to all units of the
National Park System, including those in Alaska. The proposed rule
clearly indicated that it applied to the Alaska park units in
subsection 3.24(a) which stated that PWCs were ``allowed only in
designated areas'' within the National Park System nationwide.
Furthermore, no Alaska parks were identified for separate regulatory
treatment under either subsections 3.24 (b) or (c) of the proposal.
For the reasons explained below, NPS believes that nothing in this
regulation is inconsistent with either Section 1110(a) of ANILCA, which
allows access within Alaska conservation system units (including
national park system units) by certain specified means, including
motorboats, for traditional activities and travel to and from villages
and homesites, or the Departmental regulations implementing that
statute found at 43 CFR part 36. In response to the State's comment, we
have clarified our interpretation in the NPS regulations at 36 CFR 13.1
by including a definition of the term ``motorboat'' which clarifies
that it does not include a PWC.
The regulations use the term ``vessel'', which could give rise to
an argument that PWCs are ``vessels'' protected by 43 CFR part 36.
However, the term used in Section 1110(a) of ANILCA is not the broad
term ``vessel'' but the more specific term ``motorboat.'' After
examining the legislative history of Section 1110(a), and the
Department's analysis in promulgating 43 CFR part 36 in 1986, as
explained in what follows, we concluded that PWCs are not
``motorboats'' for purposes of Section 1110(a).
There is no existing statutory definition in ANILCA for either
``motorboat'' or ``PWC.'' It is NPS' understanding that PWCs were
rarely, if ever, found in Alaska when ANILCA was enacted. Nothing in
the legislative history suggests that Congress intended to authorize
the use of PWCs in conservation system units for the purpose of
conducting traditional activities in accordance with Section 1110(a).
In light of the significant resource impacts posed by PWCs, which were
discussed at length in the preamble to the proposed regulation and
alluded to in the State of Alaska's comment, and the generally lesser
resource impacts of motorboats, we believe that Congress has left to
the discretion of the Secretary the authority to define the term
``motorboat,'' and the Secretary has reasonably concluded that this
term does not include PWCs.
This conclusion is buttressed by the analysis made by the
Department in 1986 when it promulgated two sets of regulations:
Regulations applicable to FWS, NPS and BLM which implement Section
1110(a), at 43 CFR part 36; and the special regulations applicable to
motorboat and other motorized watercraft usage on the Kenai National
Wildlife Refuge at 50 CFR 36.39(i). The Department-wide regulations
were approved by the Undersecretary of the Interior on July 2, 1986,
although they were not published in the Federal Register until
September 4, 1986 (51 FR 31619), and became effective on October 6,
1986. The Federal Register notice for the general regulation identified
the Assistant Secretary for Fish and Wildlife and Parks (formerly
Deputy Undersecretary for Alaska) as one of its primary authors. The
Assistant Secretary also approved the Kenai NWR specific regulations on
August 26, 1986. The Kenai regulations were published in the Federal
Register on September 11, 1986 (51 FR 32329).
The Department has historically made interpretations of the terms
and provisions in Section 1110(a). For example, in the general
regulations, the Department concluded that helicopters were excluded
from the Section 1110(a) protections afforded to airplanes:
* * * A few objected to any restrictions being placed upon
helicopter use, arguing that helicopters are a widely used means of
transportation in Alaska, and that there is no reason to distinguish
helicopters from fixed-wing aircraft. Others suggested that the
provisions be amended to specifically allow emergency use of
helicopters in areas without a permit, and also to allow helicopter
use if pursuant to a memorandum of understanding with the
appropriate Federal agency. Interior does not read the statutory
authorization ``airplane'' of section 1110(a) as including
helicopters. Accordingly, it is within its discretion to restrict
helicopter use. Interior's experience has shown that uncontrolled
helicopter use may have negative impacts on the purposes
[[Page 15083]]
and values for which the various areas were established, especially
upon the wildlife. * * *
51 FR at 31627. Using the same kind of reasoning, we have excluded
PWCs from the definition of ``motorboat.''
In the Kenai regulations, the Assistant Secretary approved a
comprehensive regulatory scheme for access under Section 1110(a).
Significantly, these regulations distinguished between motorboats and
other forms of motorized watercraft:
Off-Road Vehicles. (i) The use of air cushion, airboat, or other
motorized watercraft, except motorboats, is not allowed on the Kenai
NWR, except as authorized by a special use permit from the Refuge
Manager.
50 CFR 36.39(i)(3)(i). This was explained in the preamble to the
regulation:
With respect to airboats, section 1110(a) of ANILCA and its
legislative history indicate that motorboats were the only methods
of motorized water transport that were to be given special access to
conservation units. The Service recognizes that the modifier
``traditional'' in section 1110(a) does not refer to transportation
methods but to the activities for which access is given. The Service
therefore has revised section 3(i) of the regulations by rewording
the phrase ``non-traditional motorized watercraft'' to read
``motorized watercraft except motorboats.''
Thus, in approving the Kenai NWR regulations in 1986, the
Assistant Secretary specifically recognized that not all motorized
watercraft are motorboats for purposes of Section 1110(a).
The Department's conclusion here is further supported by its
treatment of snowmachines, another transportation form recognized in
Section 1110(a). In separate regulations promulgated in 1981
implementing, in part, Section 1110(a) only months after the passage
of ANILCA, NPS and FWS separately exercised the interpretive
discretion afforded to the Secretary and by definition limited the
class of snowmachines falling under the provisions of Section
1110(a) to those having a curb weight of less than 1,000 pounds.
See, 46 FR 31854 (June 17, 1981) and 46 FR 31827 (June 17, 1981),
respectively. While the Department-wide, general regulation in 1986
replaced various provisions of these NPS and FWS regulations, the
general regulation did not define the term snowmachines and left
unchanged both the FWS and NPS definitions. See, 51 FR 31619
(September 4, 1986). We have utilized this same interpretive
discretion to exclude PWCs from the definition of motorboats herein
placed in 36 CFR 13.1.
As noted in the preamble to the proposed regulations, there has
also been a long regulatory history by various Federal agencies,
including NPS, FWS and NOAA, in treating PWCs differently from other
classes of motorized watercraft. The preamble also noted that at least
34 states have implemented or are considering legislation or
regulations specific to the use and operation of PWCs. See 63 FR at
49314.
We also note the provision of the 1986 general regulation which
explicitly preserves the ability of the appropriate agency to restrict
or limit uses of an area under other applicable statutory authority
(see, 43 CFR 36.11(h)(6)) and for which the following explanation was
provided:
It is Interior's view however, that these uses may be limited or
restricted pursuant to other applicable law. The Secretary of the
Interior has authority in the areas administered by Interior to
close areas or restrict use for a variety of reasons, such as for
health and safety. We do not believe that these provisions of this
section of ANILCA were intended to preclude the Secretary from
utilizing other statutory authorizations to restrict these uses. * *
* Interior has determined that these regulations should be limited
to closures under the authority of that section [1110(a)].
Accordingly, by, limiting these regulations to closures authorized
by section 1110(a), it was determined that the category of closure
``emergency'' was no longer necessary, and as such is covered by
other established authority. Regulations providing for the closure
of areas for reasons other than under the provisions of section
1110(a) include: For the NPS, 36 CFR 1.5; for the FWS, 50 CFR 25.21;
and for the BLM, 43 CFR 8364; 51 F.R. at 31628.
Given the lack of any legislative history suggesting that access by
PWC was intended to be protected by Section 1110(a), the Department's
analysis in 1986 that underlay the Departmental and Kenai NWR
regulations implementing Section 1110(a), and the different resource
impacts posed by PWCs compared to motorboats, it is within the
Secretary's discretion to define the term ``motorboat'' to exclude
PWCs, and a clarifying definition was included in the final rule to
that effect. Because there is little, if any, present use of PWCs in
the National Parks in Alaska, we find that excluding PWCs from the
definition of motorboat will have little effect on continued access to
the parks for the conduct of traditional activities as intended by
Section 1110(a).
Issue 11
The International Association of Fish and Wildlife Agencies
commented that the NPS could only regulate PWC use in waters where we
have jurisdiction. They contend that this authority to regulate could
not extend to adjacent waters or navigable waters within Park
boundaries that are subject to regulations by States.
NPS Response
Congress has directed and the courts have upheld the authority of
the NPS to regulate waters within the congressionally established
boundaries of a park area. United States v. Armstrong, 186 F.3d 1055
(8th Cir. 1999). Pursuant to the Property and Commerce Clauses of the
U. S. Constitution, Congress has given the NPS specific statutory
authority to regulate boating and other activities on waters, including
navigable waters, within units of the National Park System, 16 U. S. C.
1a-2 (h).
Issue 12
One PWC manufacturer submitted a comment about the usefulness of
PWC in situations other than recreation. For example, they suggest PWC
might be useful during flood relief efforts, surf rescue or crowd
control during boating events. Additionally the manufacturer suggests
that PWC are more functional for disabled users. They contend that the
advantage of PWC use by visitors who are paraplegic or otherwise
wheelchair bound is that a PWC offers hand controls.
NPS Response
Administrative activities in emergency operations involving threats
to life, property or park resources, conducted by the NPS or authorized
agents will not be affected by this rule. Visitors with disabilities
engage in many park experiences including a variety of water activities
such as motorized boating where appropriate. PWC use by visitors with
disabilities will be allowed in areas where PWC use is determined to be
appropriate.
Issue 13
We received four comments in support of PWC as a traditional use
and 67 comments opposing PWC, as a traditional use. The remainder of
the pro-PWC comments focused on the subjectivity of the term
``traditional''. They argue that a PWC regulation based on traditional
use as defined by the NPS is one-sided and that the NPS has no right to
define what is or is not traditional use. The remaining comments came
from a petition saying that PWC use conflicts with many other long-
standing traditional uses of parks such as preserves for natural peace
and quiet or as wildlife preserves.
NPS Response
We believe that National Park System areas are preserved
specifically because they are outstanding examples of unique natural or
historical resources. Thus, by their very nature, the resources of
parks
[[Page 15084]]
are limited and cannot serve all potential uses. Indeed, we are ``. . .
empowered to determine what uses of park resources are proper and what
proportion of the resources are available for each use.'' Bicycle
Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1454 (9th Cir. 1996),
quoting National Wildlife Federation v. National Park Service, 669 F.
Supp. 384, 390 (D.Wyo. 1987).
Issue 14
We received 253 comments indicating that this regulation as
proposed would negatively impact the personal watercraft industry. The
majority of these were from small business owners or employees. They
claimed they make a significant contribution to the economy of their
local community and that their business had been hurt. They stated that
media leaks from the NPS staff generated negative headlines that have
kept customers away. Individual commenters express concern about the
negative impact on the PWC industry.
In one response, the Personal Watercraft Industry Association
(PWIA) challenges the average annual unit sales data in the proposed
NPS rule stating, `` the seven year average for the highest seven sales
volume years is 147,140, over 25% below the number the NPS quotes.'' In
addition, PWIA questions the our assertion that there will be little,
if any, economic impact on PWC users or the PWC industry on a regional
or national basis. They state, `` the number of local and state
jurisdictions who have called (cited) the pending NPS PWC rules as
justification for restriction or prohibition of PWC use is substantial.
In PWIA's opinion, combining the spill over impact in local communities
with the negative media interpretation has substantial potential for
impact of sales.'' The PWIA believes that we have not conducted a valid
market analysis to conclude that the regulation will result in little
economic impact.
NPS Response
We expect PWC use to continue in several areas of the National Park
System. None of the comments related to economic impacts cited specific
examples or instances where effects of the regulation would occur. It
is likely that any restrictions in one area would likely shift usage to
other areas open to PWC use. Since it is likely that the areas of the
National Park System which receive the majority of PWC use will remain
open, we expect little, if any, economic effect.
The annual sales data we referenced in the proposed rule was
extracted from a 1996 PWIA market report, which also indicates that
despite declining sales in 1996, PWC sales are expected to continue to
grow at a significant rate.
A study entitled Economic Activity Associated with Personal
Watercraft Use in Monroe County Florida indicates that local economies
will continue to benefit financially from PWC use even if adjacent NPS
areas are closed to PWC use.
Issue 15
People who supported PWC use submitted about 100 comments
expressing the opinion that they had a ``right'' to use PWC in NPS
areas. The majority of those commenters said that since they pay taxes,
they have a right to use public lands and waters. Thirty-six commenters
cited the Aquatic Resources Trust Fund (Wallop-Breaux) as a reason that
PWC could not be prohibited. They felt this law would not allow the NPS
to deny access to taxpayer funded boating facilities. A few commenters
stated that it was their constitutional ``right'' to travel
unrestricted on PWC.
NPS Response
The payment of taxes does not give a taxpayer the right to
unrestricted use of public lands and waters. The Washington State
Supreme Court determined that the payment of boat registration fees
does not grant the right to use public waters, Weden v. San Juan
County, 135 Wash.2d 678 (1998). Congress requires the NPS to regulate
use of public lands and waters within the NPS system, in order to
provide proper protection, management and administration of these
areas.
The U.S. Fish and Wildlife Service administers the Wallop-Breaux
program providing assistance to States for management of recreational
fishing and boating programs. This program does not fund boating
facilities in Federal areas such as National Parks. The Wallop-Breaux
program only applies to facilities that have accepted federal grant
funding. There is nothing in this law that would prevent the NPS from
regulation of activities in NPS areas.
Issue 16
We received 161 responses referring to the enabling legislation of
certain recreation areas and stated that PWC should be allowed under
these sections of the United States Code.
NPS Response
We agree that PWC use may be appropriate in some areas of the NPS
system. NPS Management Policies states that ``* * * because of
differences in individual park enabling legislation and resources and
differences in the missions of the NPS and other Federal agencies, an
activity that is entirely appropriate when conducted in one location
may be inappropriate if conducted in another.''
Issue 17
We received numerous comments citing the Organic Act and the
mission of the Park Service to ``protect park resources * * * for
future generations.'' Most respondents stated that PWC use was in
direct conflict with preservation of the parks. We received 8,122
comments indicating the negative impacts of PWC use on wildlife or
wildlife habitat. PWIA objects to our statement in the proposed rule
that says ``studies also show the disturbance of fish and wildlife
associated with PWCs.'' They state that ``If this statement is meant to
provide justification for elimination of an activity, then one could
reasonably infer that all access to parks should be banned since all
human contact disturbs fish and wildlife.'' Further, PWIA objects to
the our statement in the proposed rule that states ``PWC have a shallow
draft, which gives them the ability to penetrate areas that are not
available to conventional motorized watercraft.'' They state that ``a
PWC can certainly operate in shallower water than a keel sailboat or an
offshore sport fishing vessel. It will operate in the same depth of
water as any other waterjet powered runabout.'' In addition, all PWC
manufacturers recommend operation of PWC in a minimum of two feet of
water. PWIA also implies that in the proposed rule we failed to
consider a study, which demonstrates no impact to shallow water benthic
communities from PWC use in water depths of two feet or more. Finally,
the PWIA objects to our statement that PWC access (attributable to
shallow draft) has the potential to adversely impact wildlife and
aquatic vegetation in these shallow areas. They state ``any boating
activity can have the same level of impact on wildlife and the study
data indicates that a human walking has an impact at an even greater
distance than a boat or PWC.''
NPS Response
We and the U.S. Fish and Wildlife Service have used existing and
potential impacts to wildlife as a primary justification for banning
and/or restricting PWC use. Since PWC use is erratic and incidental, it
is difficult to design studies that capture direct impacts to wildlife.
However, there is increasing scientific evidence and anecdotal
information that impacts to
[[Page 15085]]
wildlife from PWC use may be more significant than those caused by
conventional boats.
Other waterjet-propelled craft may have the same ability to
penetrate areas as PWC, but PWC can penetrate areas not accessible to
conventional motorized watercraft. This access has the potential to,
and has, adversely impacted wildlife. Studies by both James A. Rodgers,
Jr. in Florida and Skip Snow in Everglades National Park support this
contention. The fact that manufacturers recommend operation of PWC in a
minimum of two feet of water to protect resources is admirable;
however, it is evident that not all PWC operators feel compelled to
comply with such recommendations. Further, no specific water depth has
been established as a ``safe'' depth for resource protection.
Issue 18
The PWIA states that any boating activity may have an impact on
wildlife. The statement, which references the Rodgers study indicating
that a walking human has an impact at an even greater distance than a
boat or PWC, is misleading. Consideration must be given to the totality
of scientific information available within any study before such
conclusions are drawn.
Petitioners through the Blue Water Network agree with university
studies that indicate that PWC harass and damage wildlife such as shore
birds, fish, and seals. Most individual comments concluded that ``These
noisy machines harass, injure, and kill wildlife.'' In one response,
the Blue Water Network states, ``wildlife biologists throughout North
America and elsewhere have testified on the existing and potential
impacts of personal watercraft on birds, marine mammals and fish. PWC
pose a unique threat to wildlife and wilderness areas because they are
multiple impact machines.'' Blue Water also asserts that PWC are a
physical threat to wildlife because they typically travel at high
speeds, in shallow water near sensitive habitats. PWC regularly change
direction and speed without warning and emit high-pitched, whining
sounds. Blue Water also asserts that PWC lack low frequency, long-
distance, sub-surface sounds, which might allow wildlife enough time to
avoid collisions.
NPS Response
Evaluations conducted by park managers will include close
examination of sensitive areas and study wildlife impacts. Mitigation
in the form of zoning, seasons, number or speed limits will be
available as management options, in addition to area closures.
Issue 19
We received 7,930 comments from individuals and organizations
regarding pollution. The vast majority of the comments stated reasons
why PWC use should not be allowed in NPS while a few comments
challenged the validity of those reasons. Numerous commenters cited
exhaust smoke and smell as a concern. Numerous comments also stated
that the exhaust on a PWC contains up to 25% of unburned fuel, which
pollutes the water.
NPS Response
We are concerned about pollution in any form, and exhaust gasses
from two cycle marine engines is no exception. We recognize that a
certain amount of exhaust smoke and smell is inherent with any two-
cycle engine and that the comments addressed excessive amounts from
PWC. We acknowledge the findings of the Environmental Protection
Agency's (EPA) 1991 study that indicate two stroke engines lose roughly
25% of the fuel they consume unburned into the water, resulting in high
levels of hydrocarbon emissions from these engines. The excessive smoke
and smell from PWC could be attributed to unique operational
characteristics of those vessels. PWC are often operated with throttle
settings that transition from idle to full throttle and back to idle,
typically in a rapid and repeated sequence. Additionally, we are aware
of an industry-generated statistic, which states that 25% of all owners
have made mechanical changes or modifications to their PWC, which may
affect emissions.
Issue 20
Numerous comments expressed concern about the amount of raw fuel
spilled into the water or on the shoreline when PWC were refueled by
owners/operators at sites other than marina fuel docks. Comments were
received from a few of organizations that addressed pollution of park
waters that are used as a source of drinking water. Methyl Tertiary
Butyl Ether (MTBE), a gasoline additive and suspected human carcinogen,
introduced into the water may be costly and difficult to remove.
Commenters continued by saying that the consequences of PWC use on park
waters should not be borne by downstream water suppliers or their
customers.
NPS Response
There is an increasing trend toward off-marina refueling of PWC and
fuel spill clean-up materials usually available at marina locations are
not available outside of those locations. We are concerned not only
with resources within park boundaries, but also with resources and
issues adjacent to parks.
Issue 21
One organization specifically referenced Executive Order (EO)
12898, which states that the EPA must protect minority or low income
communities from pollution. They also identified park areas that
currently affect some of those types of communities.
NPS Response
We will continue to comply with all Executive Orders. It is the
policy of the National Park Service to regulate motorized recreational
activity in park areas to mitigate resource degradation. It is our
intention to utilize the expertise of the Environmental Protection
Agency, Occupational Safety and Health Administration and other
cooperating agencies as a way of maintaining the environmental
integrity of park areas.
Issue 22
We received 5,732 comments that cited user conflicts. Of that
total, 222 of these comments were from individuals and 5,510 were from
a petition from one organization. Specific incidents cited included
conflicts between PWC and kayakers, fishermen, and swimmers. A few PWC
supporters said these conflicts resulted from a minority of
inconsiderate PWC operators and that we should regulate inappropriate
behavior or enforce existing regulations rather than prohibit PWC use.
Numerous comments referenced rude, impolite or aggressive behavior by a
majority of PWC operators. Numerous comments said that a minority of
PWC operators interfere with the enjoyment of the parks by a majority
of visitors.
NPS Response
It is apparent from the comments received that PWC use negatively
impacts across a broad spectrum of park users. NPS recognizes these
conflicts between park users and will try different management
practices in an effort to minimize these impacts.
Issue 23
A number of comments were received regarding specific parks. These
comments were general in nature, stating that PWC should be prohibited
in specific parks. For example, Cabrillo National Monument received a
number
[[Page 15086]]
of comments stating that PWC use is ``not even an issue'' and asking
why they are being banned.
NPS Response
Cabrillo has been identified as an area where the enabling
legislation, resource education values, other visitor uses, and several
management objectives support the prohibition of PWC.
Issue 24
Opponents to PWC use identified several park specific areas for
potential PWC closure, including Grand Teton NP, Lake Mead NRA,
Sleeping Bear Dunes NL, Lake Powell at Glen Canyon NRA, Lake Shasta and
Whiskeytown Lake at Whiskeytown-Shasta-Trinity NRA, Padre Island NS,
Cape Cod NS, and Gulf Islands NS.
NPS Response
The NPS recognizes that certain activities that may be appropriate
in one area may not be appropriate in another area. NPS Management
Policies 1988 states in part that * * * ``because of differences in
individual park enabling legislation and resources and differences in
the missions of the NPS and other Federal agencies, an activity that is
entirely appropriate when conducted in one location may be
inappropriate if conducted in another'' (Chapter 8:2-3). PWC use has
been reported to occur in 32 units of the National Park System and may
be appropriate in approximately 21 of these areas. There are a number
of areas where PWC use is not appropriate and should not be allowed. It
is the objective of this regulation to ensure that PWC use only occur
where authorized after determining its appropriateness.
Issue 25
We received 5,894 comments related to vessel operation and operator
behavior. PWC industry representatives dispute statistical analysis of
conservation organization PWC safety data. The industry offers
contradictory data and dismisses the methods of tabulation.
NPS Response
A 1989 U.S. Coast Guard boating safety study defends industry
contentions that other sporting activities are inherently more
dangerous than PWC operation. The study indicates that canoes are
several times more likely to have critical incidents than PWC. The PWC
industry also noted a 1998 National Transportation Safety Board study
that stated that alcohol impairment in PWC accidents was less frequent
than in other boating related accidents. These claims were contradicted
by statistical data that reflect an inordinate percentage of PWC
accidents and injuries in relation to the number of overall registered
vessels throughout the country. Opponents were vivid in describing
episodes and encounters, including fatalities, involving PWC.
Issue 26
One commenter described how after being approached by PWC while
kayaking ``It felt like being mugged in an urban park.'' A large number
of commenters described dangerous episodes involving PWC and swimmers
and kayakers, including near incidents of being capsized. Other power
vessel operators cited dangerous encounters with PWC operators
attempting to jump their vessels' wake, failing to yield the right of
way, and erratic vessel operation. Commenters also described youthful
or underage PWC operators as lacking full control of the vessel. Other
powerboaters described rude and abusive encounters with PWC operators
particularly when advice was offered on safety issues. One respondent
stated that PWC operators ``seem to have a case of maritime road
rage.'' This underscored their claim that these types of craft
constitute a danger or at least a perception of danger when they are
operated in close proximity to other users.
NPS Response
The rule prohibits PWC use in many areas used primarily by paddlers
and visitors seeking solitude. In areas where PWCs are authorized, the
NPS will take steps to minimize the adverse impacts from and between
the different user groups. This should mitigate most conflicts of the
type described in this comment.
Issue 27
Approximately 500 individuals, 10 business and 5,600 people through
petitions, expressed an opinion that PWC use adversely impacts natural
resources. The commenters did not offer specific evidence of resource
damage, but expressed the opinion that we should protect the natural
resources until more is known about the impact PWC have on natural
resources. One organization cited Executive Orders that direct the NPS
to close areas to off-road vehicles (including water vessels) if the
vehicles cause damage to resources. Another organization stated that
resource damages are only allegations.
NPS Response
This rule will prohibit PWC in areas of the National Park System
unless the NPS determines that PWC use is appropriate for a specific
area based on that area's enabling legislation, resources and values,
other visitor uses and overall management objectives. This rule
describes a process that will allow continued PWC use in some areas and
will enable us to better manage the use of personal watercraft. NPS
Management Policies state that if we have reasonable belief that
resource damage may occur, we will implement limitations on the use.
Issue 28
We received 3,093 comments, mostly individuals, citing a variety of
concerns over the noise associated with PWC use. All of the comments
regarding noise noted the loss of quiet and solitude with the intrusion
of PWC use. In almost all cases this noise was characterized as
``annoying.'' Specific concerns included the constant and repeated
fluctuation in engine tone and pitch as PWCs enter and exit the water
while jumping wakes, changing speed and performing other quick
maneuvers along with the persistent noise associated with remaining in
one general location rather than traveling from point-to-point.
NPS Response
The enjoyment of solitude and natural quiet are values deemed
important to most park visitors. The NPS is working on a number of
measures to preserve the soundscape in park areas. The rule requires
the NPS to determine that PWC use is consistent with a park unit's
enabling legislation, resources and values, other visitor uses and
overall management objectives before authorizing PWC use in the park
unit.
Issue 29
One organization and numerous individuals requested that the ``two
year loophole'' be eliminated and that parks be either open to PWC use
or closed upon publication of this rule.
NPS Response
We feel a grace period is helpful to allow an opportunity for
proper evaluation of the actual impacts of PWC use. This period will
allow us time to consider management alternatives and options. Park
areas with PWC use during the grace period will retain the authority to
restrict use or close areas if necessary to protect against damage to
natural or cultural resources and derogation of any other values or
purposes of the park area. We will also conduct studies and surveys of
existing
[[Page 15087]]
PWC use during this period for use in the Special Regulation rulemaking
process. The areas developing special regulations will use this time to
accept and evaluate public comment on their proposed regulations.
Issue 30
We received 7,988 comments stating the opinion that PWC use was
inappropriate in some areas of the NPS. These comments were general in
nature stating that PWC, ``should not be allowed'', or ``are
inappropriate.'' Some comments stated that PWC disturbed the
``tranquillity'' or ``solitude'', of NPS areas. Many commenters stated
that parks were sanctuaries where they went to rejuvenate themselves
from the pressures of the outside world and that PWC detracted from
their enjoyment. PWIA also acknowledges that PWC use may be
inappropriate in some areas of the National Park System.
NPS Response
We expect PWC use to continue in several areas of the National Park
System. Because these same areas currently have the preponderance of
PWC use in areas of the National Park System, we expect little, if any,
economic impact on PWC users or the PWC industry on a regional or
national basis. We completed a threshold analysis, as required by the
Regulatory Flexibility Act, to examine potential impacts on small
entities and consider alternatives to minimize such impact. We do not
expect significant impacts on commercial PWC operations in and adjacent
to NPS areas from this rule. A substantial number of small entities
will not be affected.
Moreover, from the point of view of both users and the industry, it
is quite likely that any restrictions in one area would only shift
usage to other areas, either within or outside the park area. While
such restrictions may reduce the quality of experience for some PWC
users, we expect this rule to have a positive impact on non-PWC users.
Issue 31
We received an additional 401 miscellaneous comments from
individuals, groups, and organizations citing a number of opinions,
both for and against personal watercraft use. Opponents of PWC compared
them with off-road vehicles, snowmobiles, and airboats as a form of
recreation that detracted from the experience of other visitors.
Proponents of PWCs consider their use as a valid form of recreation
regardless of the NPS mandates for preservation. We received one
comment from an organization suggesting that we develop an Appropriate
Recreation Task Force to analyze future use.
NPS Response
This rule takes a conservative approach to managing PWC use based
on consideration of the potential resource impacts, conflicts with
other visitors' uses and enjoyment, and safety concerns.
This is the same regulatory approach we use to manage snowmobiles
(36 CFR 2.18), off-road vehicle use (36 CFR 4.10), aircraft, including
powerless hanggliders (36 CFR 2.17), and use of bicycles outside
developed areas (36 CFR 4.30 (b)). The rule prohibits PWC use unless we
determine that PWC use is appropriate based on an area's enabling
legislation, resources, values, other visitor uses, and overall
management objectives. Each park area is unique and represents only a
small part of a much larger picture that depicts our nation's heritage.
Because of this uniqueness, we do not think a national level task group
would be productive.
Drafting Information
The principal authors of this final rule are; Chip Davis,
Washington Office of Ranger Activities, National Park Service, Michael
Tiernan, Office of the Solicitor, Department of the Interior and Destry
Jarvis, Office of the Assistant Secretary for Fish and Wildlife and
Parks, Department of the Interior, Washington, D.C. In addition,
numerous NPS employees from areas throughout the National Park System
contributed significantly to the review and development of this
regulation.
Compliance with Other Laws
Regulatory Planning and Review
The Office of Management and Budget reviewed this rule under
Executive Order 12866. This rule will not create inconsistencies with
other agencies' actions. Entitlement programs or the rights and
obligations of their recipients will not be materially affected. This
rule does not raise novel legal policy issues. The effects of this rule
may be controversial in some areas, but they are not novel. State and
local governments and other Federal agencies have implemented the same
measures in efforts to manage PWC use.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule 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.).
The Regulatory Flexibility Act, as amended, requires agencies to
analyze impacts of regulatory actions on small entities (businesses,
nonprofit organizations, and governments), and to consider alternatives
that minimize such impacts while achieving regulatory objectives. This
threshold analysis examines impacts of the proposed regulation that
would restrict PWC use within the National Park System. A combination
of quantitative and qualitative indicators is used to determine whether
these regulations would impose significant impacts on a substantial
number of small entities. The threshold economic analysis of commercial
PWC activity in relation to NPS areas supports this determination.
Analysis of Impacts
The PWC regulation could potentially impact two types of small
businesses: manufacturers and rental shops. Small nonprofit
organizations and small governments will not be affected. With respect
to small manufacturers, significant impacts are not likely given the
relatively low level of PWC use in affected NPS units compared to the
overall use of PWCs throughout the United States. Over 1.3 million PWCs
are currently in use in the U.S. with annual sales of approximately
200,000. Currently, PWC use has been observed in only 32 NPS units, 10
of which will likely not be affected significantly by these regulations
(Table 1). Those 10 units, which are specifically authorized in their
enabling legislation for water recreation, account for the vast
majority of PWC use in NPS units. Consequently, PWC use would likely be
potentially affected in only 22 NPS units. Those 22 affected units
generally have alternative sites nearby where PWC use is allowed.
Therefore, it is not anticipated that PWC manufacturers will suffer a
significant decrease in sales due to these regulations.
Most, if not all, rental shops that supply PWCs for use within NPS
units could be classified as small businesses for purposes of this
threshold analysis. In the 22 potentially affected units, where PWCs
are currently in use some rental shops that could be potentially
impacted. However, any impacts from this rulemaking should not be
widespread or significant for the following reasons:
1. In 11 of the 22 affected units, a 2-year grace period would
allow a locally based determination on PWC use until unit-specific
rulemakings can determine appropriate management measures. Such
measures would not automatically prohibit PWC use, but could limit use
to areas and times that are consistent with a unit's enabling
legislation,
[[Page 15088]]
resources and values, other visitor uses, and overall management
objectives. Therefore, not only would potentially affected rental shops
benefit from the 2 year grace period, but a determination of
appropriate levels of PWC use would be made in these units under future
unit-specific regulations.
2. Future rulemakings will solicit and consider public comments on
proposed management measures, potentially increasing the flexibility of
such measures.
3. The remaining 11 affected units have limited commercial PWC use
from rental shops. The primary use is by individuals with privately
owned PWCs. Therefore, there would be limited impacts on rental shops
near those units.
4. The affected units having commercial PWC rental operations
operate on larger bodies of water (oceans, lakes and rivers) of which
the NPS managed portions are only a part of the larger body of water.
NPS jurisdiction typically extends from the shoreline out to \1/4\ mile
and up to one mile in various units. PWC use is managed by State and
local governments in the waters outside NPS jurisdiction and is
unaffected by the NPS regulation.
5. Significant opportunities for PWC use exists at alternative
sites near each of the 22 affected NPS units. Therefore, potentially
affected rental shops would continue to be able to rent PWCs for use at
these alternative sites.
6. No direct compliance costs, such as those associated with
reporting requirements, would be imposed on rental shops.
Therefore, significant impacts on PWC rental shops are not expected
from this rulemaking. Moreover, even if significant impacts were
expected, a substantial number of rental shops will not be affected.
Currently, there are over 100 rental shops that supply PWCs for use in
NPS units. However, less than 10 rental shops supply PWCs for use in
units that would be automatically closed to PWC use by this rulemaking.
There are virtually tens of thousands of water areas nationwide
where PWCs may be operated. A very small percentage of the nation's 1.3
million PWCs are used in units of the NPS. In most areas where
significant PWC use already occurs in the NPS, there are anticipated to
be few changes that would adversely affect their current activity.
Where PWC use does not already occur, the possibility of keeping those
areas free of PWC use will not pose any additional economic impact.
These considerations indicate that this rulemaking will not impose
significant impacts on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under the Congressional review
provisions of the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 804(2)). This rule:
a. Does not have an effect on the economy of $100 million or more,
as demonstrated in the threshold analysis (Regulatory Flexibility Act
Section).
b. Will not cause an increase in costs or prices for consumers,
individual industries, Federal, State or local governments entities, 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
(Regulatory Flexibility Act Section).
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1502
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. This rule
does not change the relationship between the NPS and small governments.
b. The Department has determined and certifies pursuant the
Unfunded Mandates Reform Act, that this rule will not impose a cost of
$100 million or more in any given year on local, State or tribal
governments or private entities.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. No takings of personal property will occur as a result of
this rule.
Federalism
The effective date of Executive Order 13132 occurred after the
publication of the proposed rule. This rule does not have significant
Federalism effects. A Federalism assessment is not required. The rule
will manage PWC use in NPS areas and does not infringe on State
authority to manage PWC use in areas of State jurisdiction. State
authorities were consulted and involved in the planning of this rule
and representatives of the National Association of State Boating Law
Administrators also participated.
Individual park areas regularly consult with elected state
officials and various state management agencies involving a myriad of
resource and recreation issues. Public comment and participation is
sought on a frequent and recurring basis during general management
planning and at various phases involving management of park areas. A
number of areas requested comments through press releases during the
decision process and received considerable feedback including
correspondence from state agencies. Consideration of these comments and
their impact on management decisions is reflected in the changes made
to the final rule.
Civil Justice Reform
The Department has determined that this rule meets the applicable
standards provided in Section 3(a) and 3(b)(2) of Executive Order
12988. The rule does not unduly burden the judicial system. NPS drafted
this rule in ``Plain-English'' to provide clear standards and to ensure
that the rule is easily understood. We consulted with the Department of
Interior's Office of the Solicitor during the drafting process.
Paperwork Reduction Act
This rulemaking does not contain collections of information
requiring approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.
National Environmental Policy Act
The NPS has determined that this rule will maintain the quality of
the human environment, health and safety because it is not expected to:
(a) increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) introduce conflicting uses, which compromise the nature and
characteristics of the area or cause physical damage to it;
(c) conflict with adjacent ownership or land uses; or
(d) cause a nuisance to adjacent owners or occupants.
Also after a careful review of the exceptions to categorical
exclusions in 516 DM 2, Appendix 2, the NPS has concluded that none of
the listed exceptions would apply in the case of these regulations.
Based on this determination, the regulation is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6, Appendix 7,
section 7.4 A. (10). As such, neither an Environmental Assessment nor
an Environmental Impact Statement has been prepared.
[[Page 15089]]
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 possible
effects on Federally recognized Indian tribes and have determined that
there are no effects on the tribes.
List of Subjects
36 CFR Part 1
National parks, Penalties, Reporting and recordkeeping
requirements, Signs and symbols.
36 CFR Part 3
Marine safety, National parks, Reporting and recordkeeping
requirements.
36 CFR Part 13
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the NPS amends 36 CFR Chapter I
as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460 1-6a(e), 469(k); D.C. Code 8-
137, 40-721 (1981).
2. Section 1.4 is amended by revising the section heading and
adding a new definition, in alphabetical order, in paragraph (a), to
read as follows:
Sec. 1.4 What terms do I need to know?
(a) * * *
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.
The length is measured from end to end over the deck excluding sheer,
meaning a straight line measurement of the overall length from the
foremost part of the vessel to the aftermost part of the vessel,
measured parallel to the centerline. Bow sprits, bumpkins, rudders,
outboard motor brackets, and similar fittings or attachments, are not
included in the measurement. Length is stated in feet and inches.
* * * * *
PART 3--BOATING AND WATER USE ACTIVITIES
1. The authority citation for part 3 continues to read as follows:
Authority: 16 U.S.C. 1, 1a-2(h), 3.
2. New Sec. 3.24 is added to read as follows:
Sec. 3.24 Regulation of personal watercraft (PWC).
(a) Is personal watercraft (PWC) use prohibited in units of the
National Park System? Yes, the use of personal watercraft in units of
the National Park System is prohibited, except in designated areas.
(b) How will the National Park Service designate areas for PWC use?
We will designate areas for personal watercraft through the Federal
Register, using special regulations, except for the park areas
identified in the following Table 1, where personal watercraft use may
be designated using the criteria and procedures of Secs. 1.5 and 1.7 of
this chapter:
Table 1.--Park Designated PWC Use
----------------------------------------------------------------------------------------------------------------
Name Water type State
----------------------------------------------------------------------------------------------------------------
Amistad National Recreation Area.................... Impounded Lake.................. TX
Bighorn Canyon National Recreation Area............. Impounded Lake.................. MT
Chickasaw National Recreation Area.................. Impounded Lake.................. OK
Curecanti National Recreation Area.................. Impounded Lake.................. CO
Gateway National Recreation Area.................... Open Ocean/Bay.................. NY
Glen Canyon National Recreation Area................ Impounded Lake.................. AZ/UT
Lake Mead National Recreation Area.................. Impounded Lake.................. AZ/NV
Lake Meredith National Recreation Area.............. Impounded Lake.................. TX
Lake Roosevelt National Recreation Area............. Impounded Lake.................. WA
Whiskeytown-Shasta-Trinity National Recreation Area. Impounded Lake.................. CA
----------------------------------------------------------------------------------------------------------------
(c) How does the grace period apply? For the park areas identified
in Tables 1 and 2 of this section, this section provides a two-year
grace period (April 20, 2000 to April 22, 2002) from the requirements
of this section. During the grace period no authorizing administrative
action is needed to allow PWCs to continue to operate in the park areas
identified in this section. Table 2 follows:
Table 2.--Special Regulation PWC Use
----------------------------------------------------------------------------------------------------------------
Name Water type State
----------------------------------------------------------------------------------------------------------------
I. National Seashores:
Assateague Island National Seashore............. Open Ocean/Bay.................. MD/VA
Cape Cod National Seashore...................... Open Ocean/Bay.................. MA
Cape Lookout National Seashore.................. Open Ocean/Bay.................. NC
Cumberland Island National Seashore............. Open Ocean/Bay.................. GA
Fire Island National Seashore................... Open Ocean/Bay.................. NY
Gulf Islands National Seashore.................. Open Ocean/Bay.................. FL/MS
Padre Island National Seashore.................. Open Ocean/Bay.................. TX
II. National Lakeshores:
Indiana Dunes National Lakeshore................ Natural Lake.................... IN
Pictured Rocks National Lakeshore............... Natural Lake.................... MI
III. National Recreation Area: Delaware Water Gap River........................... PA/NJ
National Recreation Area.
IV. National Preserve: Big Thicket National Preserve River........................... TX
----------------------------------------------------------------------------------------------------------------
[[Page 15090]]
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
1. The authority citation for part 13 continues to read as follows:
Authority: 16 USC 1, 3, 462(k), 3101 et seq.; Sec. 13.65 also
issued under 16 USC 1a-2(h), 20, 1361, 1531, 3197; Pub. L. 105-277,
112 Stat. 2681, October 21, 1998; Pub. L. 106-31, 113 Stat. 57, May
21, 1999.
2. Section 13.1 is amended by redesignating paragraphs (j) through
(v) as paragraphs (k) through (w) and add new paragraph (j) to read as
follows:
Sec. 13.1 Definitions.
* * * * *
(j) The term motorboat refers to a motorized vessel other than a
personal watercraft.
* * * * *
Dated: December 6, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-6717 Filed 3-20-00; 8:45 am]
BILLING CODE 4310-70-P