[Federal Register Volume 69, Number 170 (Thursday, September 2, 2004)]
[Rules and Regulations]
[Pages 53630-53641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20025]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC98
Chickasaw 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 Chickasaw National Recreation Area, Oklahoma. This rule
implements the provisions of the National Park Service (NPS) general
regulations authorizing park areas to allow the use of PWC by
promulgating a special regulation. The NPS Management Policies 2001
require individual parks to determine whether PWC use is appropriate
for a specific park area based on an evaluation of that area's enabling
legislation, resources and values, other visitor uses, and overall
management objectives.
EFFECTIVE DATE: This rule is effective September 2, 2004.
ADDRESSES: Mail inquiries to Connie Rudd, Superintendent, Chickasaw
National Recreation Area, 1008 W. Second Street, Sulphur, OK 73086, e-
mail: [email protected].
FOR FURTHER INFORMATION CONTACT: Kym Hall, Special Assistant, National
Park Service, 1849 C Street, NW., Room 3145, Washington, DC 20240.
Phone: (202) 208-4206. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Personal Watercraft Regulation
On March 21, 2000, the National Park Service published a regulation
(36 CFR 3.24) on the management of PWC use within all units of the
National Park System (65 FR 15077). This regulation prohibits PWC use
in all National Park System 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 Chickasaw National Recreation Area
Chickasaw National Recreation Area is a part of America's national
system of parks, monuments, battlefields, recreation areas, and other
natural and cultural resources. Chickasaw National Recreation Area is
located in Murray County, near U.S. Highway 177, just south of the town
of Sulphur, Oklahoma, approximately 90 miles south of Oklahoma City.
Chickasaw National Recreation Area encompasses 9,888.83 acres of land
and water. The recreation area includes many lakes and creeks, with the
largest water areas being the Lake of the Arbuckles, created by the
Arbuckle Dam, and Veterans Lake. Chickasaw National Recreation Area is
the first national park in the State of Oklahoma. It is also one of the
most heavily visited parks for its size in the National Park System,
with over 3 million total visits including 1.5 million visits a year to
use the park's recreational facilities. Chickasaw remains relatively
undeveloped. Summer visitors engage in camping, picnicking, hiking,
mountain biking, horseback riding, hunting, sightseeing, auto touring,
nature viewing, photography, boating, waterskiing, fishing, and
swimming.
The significance of Chickasaw stems from the following resources
and values of the park:
The availability of both mineral and fresh water, which
come from one of the most complex geological and hydrological features
in the United States.
The presence of the cultural landscape of Platt Historic
District, which reflects the era of 1933-1940 when the Civilian
Conservation Corp (CCC) implemented NPS ``rustic'' designs.
The availability of recreational opportunities for
visitors to experience a wide range of outdoor experiences--swimming,
boating, fishing, hiking, observing nature, hunting, camping, biking,
horseback riding, family reunions, and picnicking.
[[Page 53631]]
The presence of a transition zone where the eastern
deciduous forest and the western prairies meet, which is unique to the
central part of the United States.
Purpose of Chickasaw National Recreation Area
Chickasaw National Recreation Area was originally established by
act of Congress as Sulphur Springs Reservation in 1902 near Sulphur,
Oklahoma. Congress enlarged Sulphur Springs Reservation slightly and
established it as Platt National Park in 1906. Later, it was combined
with Lake of the Arbuckles to create the present day Chickasaw National
Recreation Area.
The purpose of the park is addressed in the following statements
that are excerpts from the park's Strategic Plan. The laws establishing
Chickasaw provided for the National Park Service to:
Provide for the proper utilization and control of springs
and waters of its creeks.
Provide for efficient administration of other adjacent
areas containing scenic, scientific, natural, and historic values.
Provide public outdoor recreation use and enjoyment of
Arbuckle Reservoir.
Permit hunting and fishing in some areas.
Therefore, the purpose of Chickasaw is the protection of springs
and waters; the preservation of sites of archaeological or ethnological
interest; the provision of outdoor recreation; the administration of
scenic, scientific, natural, and historic values; the memorialization
of the Chickasaw Indian Nation; and the provision for hunting and
fishing.
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 United States.
PWC Use at Chickasaw National Recreation Area
Visitation at Chickasaw has remained relatively stable the last
three years, with an average of 3 million visitors annually, including
traffic passing through the park on U.S. Highway 177. Approximately 1.5
million visitors annually use the recreation area's facilities,
including visitors pursuing recreational activities on the reservoir
and those engaging in other recreational opportunities. Based on ranger
observations and contacts, most PWC users are from the immediate
region; within a radius of about 200 miles are Oklahoma City and the
Dallas/Fort Worth area, with a population of about 5.5 million.
The majority of PWC use occurs primarily from April through
September, although PWC users may be on the lake year-round. PWC users
spend an average of four hours on the lake during a daily visit.
The park began counting PWC in 1996, and through the end of June
2001 approximately 1,820 PWC had been counted in the park (on a
cumulative basis), compared to about 7,150 vessels. Based on the number
of annual launch ramp permits issued, PWC use declined from 1997 to
2000. In addition to annual permits, day use permits are also issued.
These do not specify the type of vessel being used and, based on staff
observations, the percent of PWC entering the lake is higher for day
use permits during the warm weather season. On busy summer weekends in
2001 and 2002, park staff observed between 34 and 94 PWC per day in the
recreation area.
According to park records, approximately 59 PWC per day were
observed during the midweek July 4, 2002, holiday period (Wednesday
through Friday). Approximately 114 PWC per day were observed on
Saturday and Sunday during that holiday weekend.
Lake of the Arbuckles is the only lake in Chickasaw open to PWC
use; the ``Superintendent's Compendium'' (1.5 and 1.7) has closed all
lakes of 100 acres or less to PWC use, including Veterans Lake (67
acres). The central part of the main body of Lake of the Arbuckles is a
high-use area for PWC. Four areas of Lake of the Arbuckles are closed
to all vessels to protect swimmers. Those areas are: the Goddard Youth
Camp Cove, a 150 foot wide zone around the picnic area at the end of
Hwy 110 (known as ``The Point'') beginning at the buoy line on the
north side of the picnic area and extending south and east into the
cove to the east of the picnic area, the cove located directly north of
the north branch of the F Loop Road, and the Buckhorn Campground D Loop
beach shoreline. These closures are sometimes violated in the Buckhorn
and The Point areas when visitors on PWC and vessels access picnic
sites.
There are several areas designated as flat wake zones and are
described as: the Guy Sandy arm upstream (north) of the east/west buoy
line located near Masters pond, the Guy Sandy Cove (boat launch) west
of the buoy marking the entrance to the cove, Rock Creek upstream
(north) of the east/west buoy line at approximately 034[deg]27'50''
north latitude, the Buckhorn Ramp bay, east of the north/south line
drawn from the Buckhorn Ramp Breakwater Dam, a 150 foot wide zone along
the north shore of the Buckhorn Creek arm starting at the north end of
the Buckhorn Boat Ramp Breakwater Dam and continuing southeast to the
Buckhorn Campground D Loop Beach, the cove south and east of the
Buckhorn Campground C and D Loops, the cove located east of Buckhorn
Campground B Loop and adjacent to Buckhorn Campground A Loop, the
second cove east of Buckhorn Campground B Loop, fed by a creek
identified as Dry Branch, and Buckhorn Creek upstream (east) of the
east/west buoy line located at approximately 096[deg]59'3.50''
longitude, known as the G Road Cliffs area.
PWC may land along the shore of the lake for access to non-water
areas but launch and retrieval of PWC continues to be required at
designated launch areas.
Conflicts in visitor use can arise in areas that restrict vessels
of any kind, such as the end of Highway 110 and along the Buckhorn
Pavilion to the F Loop picnic areas along the lake. These areas attract
swimmers who may or may
[[Page 53632]]
not be associated with a vessel or PWC, and the conflict occurs when
these vessels come into the areas to beach, pick up passengers, or
change operators.
From 1995 to 2000 there were 20 vessel accidents in the recreation
area, eight of which involved PWC. Four of the PWC accidents were
collisions with vessels, two were collisions with other PWC, and two
involved PWC operators falling or being thrown off their vessels. Six
of the eight accidents resulted in personal injury, and two only in
property damage. The accidents occurred in the following areas:
Buckhorn Arm (4), Guy Sandy Arm (2), Point Arm (1), and the central
lake area (1). From 2001 to present, a total of seven accidents have
been reported, five vessel-only accidents and two PWC-only accidents.
Notice of Proposed Rulemaking and Environmental Assessment
On March 25, 2004, the National Park Service published a Notice of
Proposed Rulemaking (NPRM) for the operation of PWC at Chickasaw
National Recreation Area (NRA) (69 FR 15277). The proposed rule for PWC
use was based on alternative B in the Environmental Assessment (EA)
prepared by NPS for Chickasaw NRA. The EA was available for public
review and comment from March 10, 2003, through April 8, 2003, and the
NPRM was available for public comment from March 25, 2004, through May
24, 2004.
The purpose of the environmental assessment was to evaluate a range
of alternatives and strategies for the management of PWC use at
Chickasaw National Recreation Area 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 analysis assumed alternatives would be
implemented beginning in 2002 and considered a 10-year period, from
2002 to 2012.
The environmental assessment evaluated four alternatives concerning
the use of PWC at Chickasaw National Recreation Area. Three of the
alternatives considered in the environmental assessment permit PWC use
in the park under certain conditions. Alternative A reestablishes the
PWC policies that existed prior to November 6, 2002, when PWC use was
permitted in Chickasaw National Recreation Area under the current
Superintendent's Compendium (1.5 and 1.7) (Revised October 23, 2002,
http://www.nps.gov/ chic/compen02.htm) Alternative B permits PWC use in
roughly the same areas as Alternative A with some additional
restrictions, and monitoring and enforcement policies. Alternative C
builds on the enforcement and monitoring policies and other
restrictions in Alternative B, by adding additional area and operating
restrictions to further limit the use of PWC.
In addition to these three alternatives for permitting restricted
PWC use, a no action alternative was considered that prohibits all PWC
use within the National Recreation Area. All four alternatives were
evaluated with respect to PWC impacts on water quality, air quality,
soundscapes, wildlife, wildlife habitat, shoreline vegetation, visitor
conflicts, visitor safety, and cultural resources.
Based on the analysis, NPS determined that Alternative B is the
park's preferred alternative. Alternative B best accomplishes the
objectives of managing PWC use and fulfilling the park's mission
without restricting lawful use. This document contains regulations to
implement Alternative B at Chickasaw National Recreation Area.
Summary of Comments
The proposed rule was published for public comment on March 25,
2004, with the comment period lasting until May 24, 2004. The National
Park Service received 78 timely written responses regarding the
proposed regulation. Of the responses, 46 were on a petition, and 32
were separate letters. Of the 32 separate letters, 22 were from
individuals, 6 from organizations, and 4 from businesses. Within the
analysis, the term ``commenter'' refers to an individual, organization,
or public agency that responded. The term ``comments'' refers to
statements made by a commenter.
General Comments
1. Several commenters stated that PWC should not be singled out for
analysis and restriction.
NPS Response: The Environmental Assessment (EA) was not designed to
determine if personal watercraft caused more environmental damage to
park resources than other boats, but rather, to determine if personal
watercraft use was consistent with the park's enabling legislation and
management goals and objectives.
2. One commenter stated that allowing PWC use violates the park's
enabling legislation and NPS mandate to protect resources from harm.
NPS Response: The objective of the Environmental Assessment, as
described in the ``Purpose and Need'' chapter of the EA, was ``to
ensure the protection of park resources and values''. As further stated
in that chapter, a special analysis on the management of personal
watercraft was also provided under each alternative to meet the terms
of the settlement agreement between the Bluewater Network and the
National Park Service, to consider impacts to water quality, air
quality, soundscape, wildlife and wildlife habitat, shorelines and
shoreline vegetation, visitor experience, and visitor conflicts and
safety. As a result, the alternatives presented in the Environmental
Assessment protect resources and values while providing recreational
opportunities at Chickasaw National Recreation Area. As required by NPS
policies, the impacts associated with personal watercraft and other
recreational uses were evaluated under each alternative to determine
the potential for impairment to park resources. Alternative B would not
result in impairment of park resources and values for which the
Chickasaw National Recreation Area was established. The recreation
area's enabling legislation also states that the ``Secretary shall
administer Chickasaw 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.
3. One commenter states that the EA does not use the best available
data and violates the court settlement with the Bluewater Network.
NPS Response: A summary of the NPS rulemaking and associated
personal watercraft litigation is provided in Chapter 1, Purpose of and
Need for Action, Background, of the EA. NPS believes it has complied
with the court order and has assessed the impacts of personal
watercraft on those resources specified by the settlement agreement, as
well as other resources that could be affected. This analysis was done
for every applicable impact topic with the best available data, as
required by Council on Environmental Quality Regulations (40 CFR
1502.22). Where data was lacking, best professional judgment prevailed
using assumptions and extrapolations from scientific literature, other
park units where personal watercraft are used, and personal
observations of park staff. The NPS believes that the environmental
assessment is in full compliance with the court-ordered settlement and
that the rationale for limited use within the national recreation area
has been adequately analyzed and explained.
[[Page 53633]]
4. One commenter is concerned about the use of Federal Aid in Sport
Fish Restoration Act (FASFRA) funds to construct boat launches and
facilities.
NPS Response: There are no provisions within the preferred
alternative for construction of new boat launches and facilities. No
FASFRA funds are used within the national recreation area to construct
boat launches.
5. Several commenters stated that the decision violates the Organic
Act, and other NPS laws, and will result in the impairment of
resources.
NPS Response: The ``Summary of Laws and Policies'' section in the
``Environmental Consequences'' chapter of the EA summarizes the three
overarching laws that guide the National Park Service in making
decisions concerning protection of park resources. These laws, as well
as others, are also reflected in the NPS Management Policies. An
explanation of how the Park Service applied these laws and policies to
analyze the effects of personal watercraft on Lake Meredith National
Recreation Area resources and values can be found under ``Impairment
Analysis'' in the ``Methodology'' section of the EA.
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 enabling legislation. For each resource topic, the
Environmental Assessments establish thresholds or indicators of
magnitude of impact. An impact approaching a ``major'' level of
intensity is one indication that impairment could result. For each
impact topic, when the intensity approached ``major,'' the park would
consider mitigation measures to reduce the potential for ``major''
impacts, thus reducing the potential for impairment.
The PWC Use Environmental Assessment is a proactive measure to
protect national recreation area resources from harm. The purpose of
the EA is to assess the impacts of PWC use on identified resources
within the recreation area boundaries. The National Park Service has
determined that under the final rule, which is based on the preferred
alternative, Alternative B, there will be no negative impacts on park
resources or values.
Comments Regarding the Preferred Alternative
6. One commenter stated that the carrying capacity restriction in
the preferred alternative seem difficult to determine and unfair to PWC
users without a carrying capacity for other types of boats.
NPS Response: This comment is correct in part. There is no
definitive threshold to determine when minor or moderate adverse
effects occur. Monitoring protocols for these effects have not been
established for Chickasaw National Recreation Area. The reason that the
carrying capacity issue is directed toward PWCs is because PWC use is
the subject of this particular Environmental Assessment. Carrying
capacities for other watercraft may be addressed in future
Environmental Assessments.
Comments Regarding Water Quality
7. 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 PWCs on a high-use day would be negligible for all chemicals
evaluated based on ecological benchmarks and for benzo(a)pyrene based
on human health benchmarks; impacts would be moderate for benzene and
human health. In 2012, impacts would be negligible based on all
ecological and human health benchmarks. ``Impairment'' is clearly
defined in the EA (page 78) 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. Impacts
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.
8. One commenter stated that the analysis represents an outdated
look at potential emissions from an overstated PWC population of
conventional 2-stroke engines, and underestimated the accelerating
changeover to 4-stroke and newer 2-stroke engines. The net effect is
that the analysis overestimates potential PWC hydrocarbon emissions,
including benzene and PAHs, to the water in the Lake of the Arbuckles.
NPS Response: Assumptions regarding PWC use (135 per day in 2002
and 148 per day in 2012) were based on actual count data from the month
of July 2002. These data were the only data available for Chickasaw
(EA, page 76). Because data from other high-use days or other months or
years were not available, trends in PWC use at Chickasaw 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 Chickasaw data. Despite these conservative estimates,
impacts to water quality from personal watercraft are judged to be
negligible to moderate for all alternatives evaluated. Cumulative
impacts from personal watercraft and other outboard motorboats are
expected to be negligible to major. If the assumptions used were less
than conservative, the conclusions could not be considered protective
of the environment, while still being within the range of expected use.
The assumption of all personal watercraft using 2-stroke engines in
2002 is recognized as conservative. It is protective of the environment
yet follows the emission data available in CARB (1998) and Bluewater
Network (2001) at the time of preparation of the EA. The emission rate
of 3 gallons per hour at full throttle is a mid-point between 3 gallons
in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons
per hour for an average 2000 model year personal watercraft (Personal
Watercraft and Bluewater Network 2001). The assumption also is
reasonable in view of the initiation of production line testing in 2000
(EPA 1997) and expected full implementation of testing by 2006 (EPA
1996).
Reductions in emissions used in the water quality impact assessment
are in accordance with the overall hydrocarbon emission reduction
projections published by the EPA (1996). EPA (1996) estimates a 52%
reduction by personal watercraft by 2010 and a 68% reduction by 2015.
The 50% reduction in emissions by 2012 (the future date used in the EA)
is a conservative interpolation of the emission reduction percentages
and associated years (2010 and 2015) reported by the EPA (1996) but
with a one-year delay in production line testing (EPA 1997).
The 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).
9. One of the commenters stated that the analysis overstates the
potential water quality impacts of resuming PWC use because the newer
engine technology is not taken into account.
NPS Response: The assumption of all personal watercraft using 2-
stroke engines in 2002 is recognized as conservative. It is protective
of the environment yet follows the emission data available in CARB
(1998) and
[[Page 53634]]
Bluewater Network (2001) at the time of preparation of the EA. The
emission rate of 3 gallons per hour at full throttle is a mid-point
between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8
to 4.5 gallons per hour for an average 2000 model year personal
watercraft (Personal Watercraft and Bluewater Network 2001). The
assumption also is reasonable in view of the initiation of production
line testing in 2000 (EPA 1997) and expected full implementation of
testing by 2006 (EPA 1996).
Reductions in emissions used in the water quality impact assessment
are in accordance with the overall hydrocarbon emission reduction
projections published by the EPA (1996). EPA (1996) estimates a 52%
reduction by personal watercraft by 2010 and a 68% reduction by 2015.
The 50% reduction in emissions by 2012 (the future date used in the EA)
is a conservative interpolation of the emission reduction percentages
and associated years (2010 and 2015) reported by the EPA (1996) but
with a one-year delay in production line testing (EPA 1997).
For benzene, factors other than numbers of PWCs or watercraft would
affect surface water concentrations. The half-life of benzene in water
is less than five hours at summer water temperatures near 30 [deg]C
(Verschuren 1983; USEPA 2001). In other words, half the benzene in
water would evaporate in five hours, in many cases reducing it to below
the human health criterion of 1.2 [mu]g/L. Given that threshold volumes
of benzene and human health impacts were greater than calculated
threshold volumes for any other compound, this evaporation rate is more
applicable to the discussion of water quality impacts than evaporation
of unspecified gasoline and additives described in the comment.
The NPS used emission reduction estimates from the EPA (1996) that
are readily available for public review and not confidential sales
information. Because the Sierra Research analysis is based on ``* * *''
confidential sales information * * *,'' the NPS cannot challenge the
assumptions in the Sierra Research analysis. The NPS did not ``ignore''
the manufacturers' confidential sales data.
Use of the Sierra information, if verified, could have potentially
reduced the calculated water quality threshold volumes. However, impact
estimates for personal watercraft are already negligible to minor (EA
pages 26 and 71-85), using the impact threshold descriptions provided
on page 68 of the EA. Impacts to water quality from other motorboats
are potentially more significant than those due to personal watercraft.
Therefore, cumulative impacts from personal watercraft and other
motorboats, which are negligible to moderate, would not be reduced
substantially by the inclusion of the Sierra emission reduction
projections for personal watercraft.
Comments Regarding Air Quality
10. One commenter stated that the use of air quality data collected
at Lake Murray, 20 miles from the NRA, in the analysis does not provide
the best representation of air quality at the lake.
NPS Response: The Lake Murray monitoring station is the closest air
quality monitoring site to the study area. The data from this site were
discussed in the EA; however, these data were not used in the impact
analysis. The analysis was based on the results of an EPA air emissions
model, which used estimated PWC and boat usage at Chickasaw NRA as
inputs.
11. 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 (VOC)
from personal watercraft were not included in the calculation of air
quality impacts primarily because these losses are insignificant
relative to emissions from operating watercraft. Using the permeation
loss numbers in the comment (estimated to be half the total of 7 grams
of losses per 24 hours from the fuel system), the permeation losses per
hour are orders of magnitude less than emissions from operating
personal watercraft. Therefore, including permeation losses would have
no effect on the results of the air quality impact analyses. Also,
permeation losses were not included because of numerous related unknown
contributing factors, such as number of personal watercraft refueling
at the reservoir and the location of refueling (inside or outside of
the airshed).
12. One commenter stated that the use of the study by Kado et al.
to suggest that the changeover from two-stroke carbureted to two-stroke
direct injection engines may increase emissions of polycyclic aromatic
hydrocarbons (``PAH'') is in error.
NPS Response: The criteria for analysis of impacts from PWC to
human health are based on the National Ambient Air Quality Standards
(NAAQSs) for criteria pollutants, as established by the U.S.
Environmental Protection Agency (EPA) under the Clean Air Act, and on
criteria pollutant annual emission levels. This methodology was
selected to assess air quality impacts for all NPS EAs to promote
regional and national consistency, and identify areas of potential
ambient standard exceedances. PAHs are not assessed specifically as
they are not a criteria pollutant. However, they are indirectly
included as a subset of Total Hydrocarbons (THC), which are assessed
because they are the focus of the EPA's emissions standards directed at
manufacturers of spark ignition marine gasoline engines (see 61 FR
52088; October 4, 1996). Neither peak exposure levels nor NIOSH nor
OSHA standards are included as criteria for analyzing air quality
related impacts except where short-term exposure is included in a
NAAQS. The methodology for assessing air quality impacts was based on a
combination of annual emission levels and the NAAQSs, which are aimed
at protection of the public.
The ``Kado Study'' (Kado et al. 2000) presented the outboard engine
air quality portion of a larger study described in Outboard Engine and
Personal Watercraft Emissions to Air and Water: A Laboratory Study
(CARB 2001). In the CARB report, results from both outboards and
personal watercraft (2-stroke and 4-stroke) were reported. The general
pattern of emissions to air and water shown in CARB (2001) was 2-stroke
carbureted outboards and personal watercraft having the highest
emissions, and 4-stroke outboard and personal watercraft having the
lowest emissions. The only substantive exception to this pattern was in
NOX emissions to air--2-stroke carbureted outboards and
personal watercraft had the lowest NOX emissions, while the
4-stroke outboard had the highest emissions. Therefore, the pattern of
emissions for outboards is generally applicable to personal watercraft
and applicable to outboards directly under the cumulative impacts
evaluations.
We agree with the technical statement and summation that adverse
health risk to the public would be unlikely from exposure. The
methodology for assessing air quality impacts is based on a combination
of annual emission levels and the NAAQSs, which are aimed at protection
of the public. OSHA and NIOSH standards are intended primarily for
workers and others exposed to airborne chemicals for specific time
periods. The OSHA and NIOSH standards are not as suitable for
application in the context of local and regional analysis of a park or
recreational area as are the ambient standards, nor are they intended
to protect the general public from exposure to pollutants in ambient
air.
[[Page 53635]]
13. One commenter expressed concern that PWC emissions were
declining faster than forecasted by the EPA. As the Sierra Report
documents, in 2002, HC + NOX emissions from the
existing fleet of PWC were already 23% lower than they were before the
EPA regulations became effective, and will achieve reductions greater
than 80% by 2012.
NPS Response: The U.S. EPA's data incorporated into the 1996 Spark
Ignition Marine Engine rule were used as the basis for the assessment
of air quality, and not the Sierra Research data. It is agreed that
these data show a greater rate of emissions reductions than the
assumptions in the 1996 Rule and in the EPA's NONROAD Model, which was
used to estimate emissions. However, the 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 relative quantity of HC + NOX are
a very small proportion of the county based emissions and that this
proportion will continue to be reduced over time. The EA takes this
into consideration in the analysis.
For consistency and conformity in approach, the NPS has elected to
rely on the assumptions in the 1996 S.I Engine Rule which are
consistent with the widely used NONROAD emissions estimation Model. The
outcome is that estimated emissions from combusted fuel may be in the
conservative range, if compared to actual emissions.
14. 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. The discussion of toxicity of PAHs in the comment must
be from another (unreferenced) document since this discussion was not
found in CARB (2001). It is agreed that some pollutants (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 for 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
time.
15. One commenter stated that the analysis failed to consider that
the PWC companies have been rapidly converting from carbureted two-
stroke engine models to direct injection two-stroke and four-stroke
engine models and most PWC units will meet the more stringent CARB
standards over time.
NPS Response: The California Air Resources Board regulations were
not discussed for Chickasaw because the park is located in Oklahoma.
Because CARB regulations are not enforceable in Oklahoma, the schedule
for reductions in emissions as stipulated by USEPA (1996, 1997) was
applied in the impact analyses. For example, it is estimated that
approximately a 50% reduction in hydrocarbon emissions would be seen by
2012 (Table 17 of the EA). This is an interpolation of the fleet
emission reduction percentages and associated years (2010 and 2015) by
the USEPA (1996) but with a one-year delay in production line testing
(USEPA 1997).
Comments Regarding Soundscapes
16. One commenter stated that continued PWC use in the Chickasaw
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
noise 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 ambient noise levels in the
recreation area, it is unlikely that the improved technology could
reduce all cumulative impacts beyond minor to moderate throughout the
recreation area.
17. One commenter stated that the NPS places too much hope in new
technologies significantly reducing PWC noise since there is little
possibility that the existing fleet of more than 1.1 million machines
(most of which are powered by conventional two-stroke engines) will be
retooled to reduce noise.
NPS Response: The analysis of the preferred alternative states that
noise from PWC would continue to have minor to moderate, temporary
adverse impacts, and that impact levels would be related to the 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 noise
reduction technology. It recognizes that the noise from the operation
of PWC will always vary, depending on the speed, manner of use, and
wave action present.
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 103 of the EA. The analysis of impacts states that ``PWC
users generally distribute themselves throughout the lake, although the
density of personal watercraft can be higher near launch areas and
shoreline use areas, especially near the Buckhorn developed area.'' 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 Chickasaw 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.
18. One commenter stated that the noise associated with PWC is more
invasive due to the constantly fluctuating noise levels.
NPS Response: The EA discusses the fluctuating noise aspect of PWC
operation in the Affected Environment section (page 53 of the EA),
under ``Visitor Responses to PWC Noise,'' and recognizes that the
``irregular noise may be more annoying than that of a standard
motorboat * * *'' The analysis recognizes that different visitors will
have different tolerance for PWC noise.
[[Page 53636]]
19. One commenter stated that the new technologies proposed by the
personal watercraft industry will not reduce noise impacts associated
with PWC use.
NPS Response: The analysis did not assume that PWC noise would be
substantially reduced in the future, although it does recognize that
newer machines, and those powered by 4-stroke engines, are quieter. The
analysis does take into account continued noise from PWC and an
increase in PWC numbers over time.
20. One commenter stated that there is no evidence that PWC noise
adversely affects aquatic fauna or animals.
NPS Response: Typically PWC exhaust below or at the air/water
transition areas, not above the water. Sound transmitted through the
water is not expected to have more than negligible adverse impacts on
fish and the EA does not state the PWC noise adversely affects
underwater fauna.
21. One commenter stated that the analysis did not include Drowning
in Noise: Noise Costs of PWC in America and therefore the noise
analysis underrepresents the actual impacts.
NPS Response: One of the initial tasks in the development of the
Chickasaw EA was a literature search. Drowning in Noise: Noise Costs of
Jet Skis in America was one of the many studies reviewed. The reference
to that study (Komanoff and Shaw 2000) was discussed in the ``Summary
of Available Research on the Effects of Personal Watercraft'' section
of the EA.
Comments Regarding Wildlife and Wildlife Habitat
22. Two commenters stated that the analysis lacked site-specific
data for impacts to fish, wildlife, and threatened and endangered
species at Chickasaw NRA.
NPS Response: The scope of the EA did not include conducting site-
specific studies regarding potential effects of PWC use on wildlife
species at Chickasaw National Recreation Area. No admission of an
absence of a complete inventory of all NRA wildlife can be found on
page 55 of the EA as claimed in the comments. 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. A listing of mammals, amphibians, and
reptiles known to occur in Chickasaw NRA is provided in Table 9, and a
list of protected species is provided in Table 10 of the EA.
23. 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
disturbance.
NPS Response: Based on the documents provided as part of this
comment, it appears that personal watercraft are no more apt to disturb
wildlife than are small outboard motorboats. In addition to this
conclusion, Dr. Rodgers recommends that buffer zones be established,
creating minimum distances between boats (personal watercraft and
outboard motorboats) and nesting and foraging waterbirds. In Chickasaw
National Recreation Area, a 150-ft wide no-wake zone along portions of
the shoreline is already established where the use of watercraft is
restricted. With this restriction in mind, impacts to wildlife and
wildlife habitat under all four alternatives were judged to be
negligible to minor at most locations along the shoreline.
24. One commenter states that the analysis shows that a ban on PWC
could result in ``some animals reinhabiting'' areas of previously high
PWC operation, therefore a ban would be a better alternative.
NPS Response: This apparent inconsistency between discussions of
impacts under alternative A and the no-action alternative will be
corrected in the EA. The ban on PWC would allow use of some areas
currently avoided by animals, but this avoidance does not constitute a
change in population or community structure, but rather a temporary and
periodic limitation on use of all available habitat.
25. One commenter states that the analysis indicates no impacts to
aquatic organisms such as plankton and zooplankton. However, research
at Lake Tahoe clearly shows that two-stroke motors release pollutants
that are toxic to microscopic organisms at minute levels. Moreover, the
NPS leaves the impression that PWC operation that pushes wildlife out
of preferred habitat is acceptable.
NPS Response: Results of toxicity studies at Lake Tahoe are not
directly applicable to Chickasaw. Many confounding factors, including
water transparencies, suspended solids, UV light levels, and a
different mix of engine types (2- and 4-stroke) affect the
phototoxicity of PAHs in water. Also, the process of photodegradation
of PAHs in addition to phototoxicity is occurring in water as described
by Fasnacht and Blough (2002). Given that the greatest calculated
threshold volume for a PAH (1-methyl naphthalene) released by PWCs is
less than 1% of the available volume, it is highly unlikely that there
is any measurable impact on aquatic life in the lake.
Regarding flushing of birds along shorelines, full discussions of
potential impacts to birds are provided in the Environmental
Consequences section of the EA. For all alternatives, the impacts to
birds from PWCs are described as minor since most PWC use is not in the
spring breeding season, and shoreline use of PWCs is around developed
facilities where desirable wildlife habitat characteristics are
lacking.
26. One commenter stated that wildlife biologists are finding that
PWC cause lasting impacts to fish and wildlife.
NPS Response: A large portion of this comment is about potential
impacts to marine mammals, in particular, bottlenose dolphins. Marine
mammals are not found in Lake of the Arbuckles. The preferred
alternative (alternative B) calls for monitoring for the presence of
threatened or endangered species, and seasonally or permanently closing
areas as needed to protect these species.
It is agreed that most of the PWCs currently in use have 2-stroke
engines. However, in response to USEPA (1996, 1997) regulations, all
new PWCs must have lower emissions of pollutants, and these lower
emission requirements will be met through the use of direct injection
2-stroke engines or 4-stroke engines. By 2006, USEPA requirements will
reduce PWC noise, in association with improvements to engine technology
(USEPA 1996). Also, in response to public complaints, the PWC industry
reportedly is using new technologies to reduce sound by 50 to 70% in
1999 and newer models (Sea-Doo 2000; Hayes 2002). Over the long term,
the increased use of new PWC models will help reduce noise levels and
organic pollutant emission levels which will minimize effects on fish
and wildlife.
Comments Regarding Shoreline/Submerged Aquatic Vegetation
27. One commenter stated that there has been no documentation of
any adverse effects to shoreline vegetation from PWC use.
NPS Response: We agree that PWC use as recommended by the
[[Page 53637]]
manufacturer should not adversely affect submerged aquatic vegetation.
At Chickasaw NRA, the primary concern is shoreline vegetation, and the
analysis recognizes that PWC use would result in only negligible to
minor adverse impacts to this vegetation, mostly from PWC operators
leaving their vessels and trampling vegetation.
Comments Associated With Visitor Use, Experience, and Safety
28. One commenter stated that the reported accident numbers
involving PWC are higher because they get reported more often than
other boating accidents.
NPS Response: Incidents involving watercraft of all types,
including personal watercraft, are reported to and logged by National
Park Service staff. A very small proportion of incidents in the
recreation area are estimated to go unreported. In the ``Visitor
Conflicts and Visitor Safety'' section of the ``Affected Environment''
chapter, it is reported by the National Transportation Safety Board
that in 1996 personal watercraft represented 7.5% of State-registered
recreational boats but accounted for 36% of recreational boating
accidents. In the same year, PWC operators accounted for more than 41%
of people injured in boating accidents. PWC operators accounted for
approximately 85% of the persons injured in accidents studied in 1997.
In other words, personal watercraft are 5 times more likely to have a
reportable accident than are other boats. 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 recreation area.
29. One commenter stated that the analysis did not adequately
address PWC fire hazards.
NPS Response: According to the National Marine Manufacturers
Association, PWC manufacturers have sold roughly 1.2 million watercraft
during the last ten years. Out of 1.2 million PWC sold the U.S. Coast
Guard had only 90 reports of fires/explosions in the years from 1995-
1999. This is a minute fraction of PWC having reports of problems
associated with fires/explosions. As far as the recall campaigns
conducted by Kawasaki and Bombardier, the problems that were associated
with fuel tanks were fixed. Kawasaki conducted a recall for potentially
defective fuel filler necks and fuel tank outlet gaskets on 23,579
models from the years 1989 and 1990. The fuel tank problems were
eliminated in Kawasaki's newer models, and the 1989 and 1990 models are
most likely not in use anymore since life expectancy of a PWC is only
five to seven years according to PWIA. Bombardier also did a recall for
its 1993, 1994, and 1995 models to reassess possible fuel tank design
flaws. However, the number of fuel tanks that had to be recalled was a
very small percent of the 1993, 1994, and 1995 fleets because fuel tank
sales only amounted to 2.16% of the total fleet during this period
(Bombardier Inc.). The replacement fuel tanks differed from those
installed in the watercrafts subject to the recall in that the
replacement tanks had revised filler neck radiuses, and the
installation procedure now also requires revised torque specifications
and the fuel system must successfully complete a pressure leak test.
Bombardier found that the major factor contributing to PWC fires/
explosions was over-torquing of the gear clamp. Bombardier was legally
required by the U.S. Coast Guard to fix 9.72% of the recalled models.
Out of 125,349 recalls, the company repaired 48,370 units, which was
approximately 38% of the total recall, far exceeding their legal
obligation to repair units with potential problems.
Further fuel tank and engine problems that could be associated with
PWC fires has been reduced significantly since the National Marine
Manufacturers Association set requirements for meeting manufacturing
regulations established by the U.S. Coast Guard. Many companies even
choose to participate in the more stringent Certification Program
administered by the National Marine Manufacturers Association (NMMA).
The NMMA verifies annually, or whenever a new product is put on the
market, 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.
30. Several commenters stated that the analysis does not adequately
assess the safety threat posed to park visitors by PWC use.
NPS Response: The concern about PWC operation and safety is
discussed in the EA. Some of the provisions of the preferred
alternative, such as extended no wake zones, and the formation of a PWC
user group and PWC user education program, were included to provide a
higher level of safe PWC operations and to lessen potential conflicts
with other park users. The NPS agrees that some PWC users operate their
vessels in an unsafe manner, and has provided for additional locational
restrictions and safety--focused education in its preferred alternative
(see response above). In addition, enforcement will be increased to
enforce new restrictions and promote education about safe operation.
Finally, the NPS' analysis recognizes the danger of PWC operation.
However, not all PWC operation results in loss of a ``safe and
healthful'' environment, and NPS cannot regulate activities based on
the type of injuries likely to be sustained if the public wishes to
participate in an activity that is supported by the park's enabling
legislation. However, NPS is providing safe operating instruction, use
restrictions, and enforcement to minimize the possibility of any
serious injuries.
31. One commenter, Personal Watercraft Industry Association, stated
that there is no basis to impose no-wake restrictions on PWC only, as
proposed in Alternative B, and doing so would endanger all boaters.
NPS Response: The proposed no-wake zones under Alternative B would
apply to all motorized vessels. The description of Alternative B on
page 23 of the EA does not indicate that the no wake zone applies only
to PWC.
Comments Related to Socioeconomics
32. One commenter stated that the analysis did not adequately
assess socioeconomic impacts on the regional economy.
NPS Response: The number of recreational visits at Chickasaw
National Recreation Area in calendar year 2002, through November, was
1,609,152. In 2003 through November, the recreational visits were
1,510,270; a reduction of 6.15%. This percentage is similar to the
reduction in visitation at Glen Canyon and the eight un-named parks in
the above comment. There were no PWCs allowed at Chickasaw during that
time. The number of boats on the Lake of the Arbuckles in 2002 through
November were 64,500 boats, plus 3,236 PWCs, for a total of 67,736. The
total boats through November 2003 were 55,826 (no PWCs). The decrease
of boats overall was 17.6 percent. However, the percentage of boats
that were PWCs in 2002 was only 4.7 percent. The reduction in usage
correlates with the nationwide decrease in visitation regardless of the
PWC ban. Several factors including high fuel prices, a general sluggish
economy, and the fear of terrorism could also be factors for the
decline.
The socioeconomic study did not address the future potential costs
of environmental damage. The study looked at the potential effect that
the ban would have on the local economy, and the potential effects on
socio-economically disadvantaged groups.
[[Page 53638]]
The comment is correct in stating that the same level of analysis was
not given to the future environmental costs.
33. One commenter stated that by banning PWC use at the park, there
would be an increase in other visitors which would offset the economic
losses from PWC users.
NPS Response: The evaluation concentrated on the effects of PWC
management on the local economy. There is no data available indicating
that the presence of PWC has decreased the recreation area visitation
by other visitors. Thus, a conclusion cannot be made that banning PWC
would increase use by other groups. According to the visitor survey
(summer 2000), most visitors identified issues associated with PWC
operation within the recreation area as ``no problem or slight
problem.''
Changes to the Final Rule
Based on the preceding comments and responses, the NPS has made no
changes to the proposed rule language with regard to PWC operations.
Summary of Economic Impacts
Alternative A would reinstate Personal Water Craft (PWC) use at
Chickasaw National Recreation Area as previously managed prior to
November 2002, and as described in the 2000 Superintendent's
Compendium. That Compendium permitted the use of PWCs in Lake of the
Arbuckles under existing boating regulations, closed lakes 100 acres or
less to PWCs, and imposed no-wake speed restrictions in certain areas.
Alternative B would reinstate PWC use as previously managed, but with
additional management restrictions. Alternative C would reinstate PWC
use as previously managed, but limit use areas. Alternative D is the
no-action alternative and represents the baseline conditions for this
economic analysis. PWCs would be banned under Alternative D. All
benefits and costs associated with Alternatives A, B, and C are
measured relative to that baseline.
The primary beneficiaries of Alternatives A, B, and C 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 in substitute
areas outside the park where PWC users displaced from Chickasaw
National Recreation Area ride due to the ban. Over a ten-year horizon
from 2005 to 2014, the present value of benefits to PWC users is
expected to range between $5,596,540 and $8,522,620, 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 $28,850 and $379,750. 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 Chickasaw National Recreation Area, 2005-2014 (2001 $)
----------------------------------------------------------------------------------------------------------------
PWC users Businesses Total \a\
----------------------------------------------------------------------------------------------------------------
Alternative A:
Discounted at 3% \b\....................... $8,522,620 $49,780 - $379,750 $8,572,400 - $8,902,370
Discounted at 7% \b\....................... 6,995,650 40,850 - 311,710 7,036,500 - 7,307,360
Alternative B:
Discounted at 3% \b\....................... 7,670,370 42,500 - 317,680 7,712,870 - 7,988,050
Discounted at 7% \b\....................... 6,296,090 34,890 - 260,760 6,330,980 - 6,556,850
Alternative C:
Discounted at 3% \b\....................... 6,818,120 35,150 - 255,530 6,853,270 - 7,073,650
Discounted at 7% \b\....................... 5,596,540 28,850 - 209,750 5,625,390 - 5,806,290
----------------------------------------------------------------------------------------------------------------
\a\ Benefits may not sum to the indicated -aves\rules.xmltals due to independent rounding.
\b\ Office of Management and Budget Circular A-4 recommends a 7% discount rate in general, and a 3% discount
rate when analyzing impacts to private consumption.
Table 2.--Amortized Total Benefits per Year for PWC Use in Chickasaw
National Recreation Area, 2005-2014 (2001 $)
------------------------------------------------------------------------
Amortized total benefits per year \a\
------------------------------------------------------------------------
Alternative A:
Discounted at 3% \b\....... $1,004,947 to $1,043,629
Discounted at 7% \b\....... 1,001,839 to $1,040,404
Alternative B:
Discounted at 3% \b\....... 904,184 to $936,443
Discounted at 7% \b\....... 901,389 to $933,548
Alternative C:
Discounted at 3% \b\....... 803,412 to $829,248
Discounted at 7% \b\....... 800,929 to $826,685
------------------------------------------------------------------------
\a\ This is the present value of total benefits reported in Table 1
amortized over the ten-year analysis timeframe at the indicated
discount rate.
\b\ Office of Management and Budget Circular A-4 recommends a 7%
discount rate in general, and a 3% discount rate when analyzing
impacts to private consumption.
The primary group that would incur costs under Alternatives A, B,
and C 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
Chickasaw 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
[[Page 53639]]
could not be quantified because of a lack of available data.
Because the costs of Alternatives A, B and C 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 because certain costs
could not be quantified. Those costs, relating to non-PWC use,
aesthetics, ecosystem protection, human health and safety, congestion,
or nonuse values, would likely be greater for Alternative A than for
Alternative B due to increasingly stringent restrictions on PWC use.
Quantification of these costs could reasonably result in Alternative B
having the greatest level of net benefits.
Compliance With Other Laws
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and has not been reviewed
by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
The National Park Service has completed the report ``'Economic
Analysis of Management Alternatives for Personal Watercraft in
Chickasaw National Recreation Area'' (MACTEC Engineering) dated June
2003. The report found that this rule will not have a negative economic
impact. In fact this rule, which will not impact local PWC dealerships
and rental shops, may have an overall positive impact on the local
economy. This positive impact on the local economy is a result of an
increase of other users, most notably canoeists, swimmers, anglers and
traditional boaters seeking solitude and quiet, and improved water
quality.
(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 is an
agency specific rule.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule will have no effects on entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No grants or other forms of monetary supplements are
involved.
(4) This rule does not raise novel policy issues. This regulation
is one of the special regulations being issued for managing PWC use in
National Park Units. The National Park Service published the 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 requirements 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 no significant changes to use are implemented
in this rule.
Regulatory Flexibility Act
The Department of the Interior certifies that this document 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 upon the finding in a report prepared by
the National Park Service entitled, ``Economic Analysis of Management
Alternatives for Personal Watercraft in Chickasaw National Recreation
Area'' (MACTEC Engineering) dated June 2003. The focus of this study
was to document the impact of this rule on two types of small entities,
PWC dealerships and PWC rental outlets. This report found that the
potential loss for these types of businesses as a result of this rule
would be minimal to none.
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.
The National Park Service has completed an economic analysis to
make this determination. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector.
This rule is an agency specific rule and imposes no 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 taking implications. A taking implication assessment is not
required. No takings of personal property will occur as a result of
this rule.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
This rule only affects use of NPS administered lands and waters. It
has no outside effects on other areas and only allows use within a
small portion of the park.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB Form 83-I is not required.
National Environmental Policy Act
The National Park Service has analyzed this rule in accordance with
the criteria of the National Environmental Policy Act and has prepared
an Environmental Assessment (EA). The EA was open for public review and
comment from March 10, 2003, through April 8, 2003. The EA has been
posted on the NPS Web site (http://www.nps.gov/chic/CHICPWCEA.pdf). A
Finding of No Significant Impact (FONSI) was signed on June 28, 2004.
Copies of these documents may be requested by calling Susie Staples
at 580-622-3161, extension 1-220, or by writing the Superintendent,
Chickasaw National Recreation Area, 1008 W. 2nd Street, Sulphur, OK
73086.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
[[Page 53640]]
``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. The following tribes were contacted;
Apache Tribe of Oklahoma, Caddo Tribal Council, The Chickasaw Nation,
The Choctaw Nation of Oklahoma, Comanche Tribal Business Committee, The
Pawnee Business Council, The Wichita Executive Committee. None of the
tribes had any comments on the proposed action.
Administrative Procedure Act
This final rule is effective upon publication in the Federal
Register. In accordance with the Administrative Procedure Act,
specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.57(h), is exempt
from the requirement of publication of a substantive rule not less than
30 days before its effective date.
As discussed in this preamble, the final rule is a part 7 special
regulation for Chickasaw 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 15277) on March 25,
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 Chickasaw National Recreation Area final
rule.
The Attorney General's Manual on the Administrative Procedure Act
explained that the ``reason for this exception would appear to be that
the persons affected by such rules are benefited by them and therefore
need no time to conform their conduct so as to avoid the legal
consequences of violation. The fact that an interested person may
object to such issuance, amendment, or repeal of a rule does not change
the character of the rule as being one `granting or recognizing
exemption or relieving restriction,' thereby exempting it from the
thirty-day requirement.'' This rule is within the scope of the
exception as described by the Attorney General's Manual and the 30-day
waiting period should be waived. See also, Independent U.S. Tanker
Owners Committee v. Skinner, 884 F.2d 587 (DC Cir. 1989). In this case,
the court found that paragraph (d)(1) is a statutory exception that
applies automatically for substantive rules that relieves a restriction
and does not require any justification to be made by the agency. ``In
sum, the good cause exception must be invoked and justified; the
paragraph (d)(1) exception applies automatically'' (884 F.2d at 591).
The facts are that the NPS is promulgating this special regulation for
the purpose of relieving the restriction, prohibition of PWC use,
imposed by 36 CFR 3.24 and therefore, the paragraph (d)(1) exception
applies to this rule.
In accordance with the Administrative Procedure Act, this rule is
also excepted from the 30-day waiting period by the ``good cause''
exception in 5 U.S.C. 553(d)(3) and is effective upon publication in
the Federal Register. As discussed above, the purpose of this rule is
to comply with the 36 CFR 3.24 requirement for authorizing PWC use in
park areas by promulgating a special regulation. ``The legislative
history of the APA reveals that the purpose for deferring the
effectiveness of a rule under section 553(d) was `to afford persons
affected a reasonable time to prepare for the effective date of a rule
or rules or to take other action which the issuance may prompt.' S.
Rep. No. 752, 79th Cong., 1st Sess. 15 (1946); H.R. Rep. No. 1980, 79th
Cong., 2d Sess. 25 (1946).'' United States v. Gavrilovic, 551 F.2d
1099, 1104 (8th Cir. 1977). The persons affected by this rule are PWC
users and delaying the implementation of this rule for 30 days will not
benefit them; but instead will be counterproductive by denying them,
for an additional 30 days, the benefits of the rule.
List of Subjects in 36 CFR Part 7
District of Columbia, National parks, Reporting and recordkeeping
requirements.
0
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
0
1. The authority citation for part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
0
2. Add new paragraph (b) to Sec. 7.50 to read as follows:
Sec. 7.50 Chickasaw Recreation Area.
* * * * *
(b) Personal watercraft (PWC). (1) PWC may operate on Lake of the
Arbuckles except in the following closed areas:
(i) The Goddard Youth Camp Cove.
(ii) A 150 foot wide zone around the picnic area at the end of
Highway 110 known as ``The Point'', beginning at the buoy line on the
north side of the picnic area and extending south and east into the
cove to the east of the picnic area.
(iii) The cove located directly north of the north branch of F Loop
Road.
(iv) A 150 foot wide zone around the Buckhorn Campground D Loop
shoreline.
(2) PWC may not be operated at greater than flat wake speed in the
following locations:
(i) The Guy Sandy arm north of the east/west buoy line located near
Masters Pond.
(ii) The Guy Sandy Cove west of the buoy marking the entrance to
the cove.
(iii) Rock Creek north of the east/west buoy line at approximately
034[deg]27[min]50[sec] North Latitude.
(iv) The Buckhorn Ramp bay, east of the north south line drawn from
the Buckhorn Boat Ramp Breakwater Dam.
(v) A 150 foot wide zone along the north shore of the Buckhorn
Creek arm starting at the north end of the Buckhorn Boat Ramp
Breakwater Dam and continuing southeast to the Buckhorn Campground D
Loop beach.
(vi) The cove south and east of Buckhorn Campground C and D Loops.
(vii) The cove located east of Buckhorn Campground B Loop and
adjacent to Buckhorn Campground A Loop.
(viii) The second cove east of Buckhorn Campground B Loop, fed by a
creek identified as Dry Branch.
(ix) Buckhorn Creek east of the east/west buoy line located at
approximately 096[deg]59[min]3.50[sec] Longitude, known as the G Road
Cliffs area.
(x) Within 150 feet of all persons, docks, boat launch ramps,
vessels at anchor, vessels from which people are fishing, and shoreline
areas near campgrounds.
(3) PWC may only be launched from the following boat ramps:
(i) Buckhorn boat ramp.
(ii) The Point boat ramp.
(iii) Guy Sandy boat ramp.
(iv) Upper Guy Sandy boat ramp.
(4) The fueling of PWC is prohibited on the water surface. Fueling
is allowed only while the PWC is away from the water surface and on a
trailer.
[[Page 53641]]
(5) The Superintendent may temporarily limit, restrict or terminate
access to the areas designated for PWC use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives.
Dated: August 24, 2004.
Paul Hoffman,
Deputy Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 04-20025 Filed 9-1-04; 8:45 am]
BILLING CODE 4310-2H-P