Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61893 

Effects on the Nation’s Energy Supply 

(Executive Order 13211) 

E.O. 13211 requires the agency to 

prepare a Statement of Energy Effects 

when it takes a regulatory action that is 

identified as a significant energy action. 

This rule is not a significant energy 

action, and therefore does not require a 

Statement of Energy Effects, because it: 

(1) Is not a significant regulatory 

action under E.O. 12866, 

(2) Is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy, and 

(3) Has not been designated by the 

Administrator of the OIRA, OMB, as a 

significant energy action. 

Consultation and Coordination With 

Indian Tribal Governments (Executive 

Order 13175) 

In accordance with E.O. 13175, this 

rule will not have tribal implications 

that impose substantial direct 

compliance costs on Indian tribal 

governments. 

Clarity of This Regulation 

E.O. 12866 requires each agency to 

write regulations that are easy to 

understand. We invite your comments 

on how to make this rule easier to 

understand, including answers to 

questions such as the following: 

(1) Are the requirements in the rule 

clearly stated? 

(2) Does the rule contain technical 

language or jargon that interferes with 

its clarity? 

(3) Does the format of the rule 

(grouping and order of sections, use of 

headings, paragraphing, etc.) aid or 

reduce its clarity? 

(4) Is the description of the rule in the 

SUPPLEMENTARY INFORMATION section of 

this preamble helpful in understanding 

the rule? What else can we do to make 

the rule easier to understand? 

Send a copy of any comments that 

concern how we could make this rule 

easier to understand to: Office of 

Regulatory Affairs, Department of the 

Interior, Room 7229, 1849 C Street, 

NW., Washington, DC 20240. You may 

also e-mail the comments to this 

address: Exsec@ios.doi.gov. 

List of Subjects in 30 CFR Part 250 

Continental shelf, Environmental 

impact statements, Environmental 

protection, Government contracts, 

Investigations, Oil and gas exploration, 

Penalties, Pipelines, Public lands—

mineral resources, Public lands—rightof-way, Reporting and recordkeeping 

requirements, Sulphur. 

List of Subjects in 30 CFR Part 256 

Administrative practice and 

procedure, Continental shelf, 

Environmental protection, Government 

contracts, Intergovernmental relations, 

Oil and gas exploration, Public lands—

mineral resources, Public lands—rightsof-way, Reporting and recordkeeping 

requirements, Surety bonds. 

Dated: October 17, 2005. 

Chad Calvert, 

Acting Assistant Secretary—Land and 

Minerals Management. 

■ For the reasons explained in the 

preamble, MMS amends 30 CFR parts 

250 and 256 as follows: 

PART 250—OIL AND GAS AND 

SULPHUR OPERATIONS IN THE 

OUTER CONTINENTAL SHELF 

■ 1. The authority citation for part 250 

continues to read as follows: 

Authority: 43 U.S.C. 1331 et seq. 

■ 2. Section 250.1015 is amended by 

adding a new paragraph (e) as follows: 

§ 250.1015 Applications for pipeline rightsof-way grants. 

* * * * * 

(e) Notwithstanding the provisions of 

paragraph (a) of this section, the 

requirements to pay filing fees under 

that paragraph are suspended until 

January 3, 2006. 

■ 3. Section 250.1018 is amended by 

adding a new paragraph (c) as follows: 

§ 250.1018 Assignment of pipeline right-ofway grants. 

* * * * * 

(c) Notwithstanding the provisions of 

paragraph (b) of this section, the 

requirement to pay a filing fee under 

that paragraph is suspended until 

January 3, 2006. 

PART 256—LEASING OF SULPHUR OR 

OIL AND GAS IN THE OUTER 

CONTINENTAL SHELF 

■ 4. The authority for part 256 

continues to read as follows: 

Authority: 43 U.S.C. 1331 et seq., 42 U.S.C. 

6213. 

■ 5. Section 256.64 is amended by 

adding a new paragraph (a)(9) as 

follows: 

* * * * * 

(a) * * * 

(9) Notwithstanding the provisions of 

paragraph (a)(8) of this section, the 

requirements to pay a filing fee in 

connection with any application for 

approval of any instrument of transfer 

and to pay a fee in connection with 

documents not required to be filed are 

suspended until January 3, 2006. 

* * * * * 

[FR Doc. 05–21281 Filed 10–26–05; 8:45 am] 

BILLING CODE 4310–MR–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

36 CFR Part 7 

RIN 1024—AC93 

Pictured Rocks National Lakeshore, 

Personal Watercraft Use 

AGENCY: National Park Service, Interior. 

ACTION: Final rule. 

SUMMARY: This final rule designates 

areas where personal watercraft (PWC) 

may be used in Pictured Rocks National 

Lakeshore, Michigan. This final rule 

implements the provisions of the 

National Park Service (NPS) general 

regulations authorizing parks to allow 

the use of PWC by promulgating a 

special regulation. The NPS 

Management Policies 2001 require 

individual parks to determine whether 

PWC use is appropriate for a specific 

park area based on an evaluation of that 

area’s enabling legislation, resources 

and values, other visitor uses, and 

overall management objectives. 

DATES: This rule is effective October 27, 

2005. 

ADDRESSES: Mail inquiries to 

Superintendent, Pictured Rocks 

National Lakeshore, N8391 Sand Point 

Road, P.O. Box 40, Munising, Michigan 

49862–0040. E-mail to 

PIRO@den.nps.gov. 

FOR FURTHER INFORMATION CONTACT: Jerry 

Case, Regulations Program Manager, 

National Park Service, 1849 C Street, 

NW., Room 7241, Washington, DC 

20240. Phone: (202) 208–4206. E-mail: 

Jerry_Case@nps.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Personal Watercraft Regulation 

On March 21, 2000, the National Park 

Service published a regulation (36 CFR 

3.24) on the management of personal 

watercraft (PWC) use within all units of 

the national park system (65 FR 15077). 

This regulation prohibits PWC use in all 

national park units unless the NPS 

determines that this type of water-based 

recreational activity is appropriate for 

the specific park unit based on the 

legislation establishing that park, the 

park’s resources and values, other 

visitor uses of the area, and overall 

61894 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

management objectives. The regulation 

prohibits PWC use in all park units 

effective April 20, 2000, except a 

limited exception was provided for 21 

parks, lakeshores, seashores, and 

recreation areas. The regulation 

established a 2-year grace period 

following the final rule publication to 

give these 21 park units time to consider 

whether PWC use should be allowed. 

Accordingly, on April 22, 2002, 

Pictured Rocks National Lakeshore 

closed for PWC use. 

Description of Pictured Rocks National 

Lakeshore 

Pictured Rocks National Lakeshore is 

situated in the north-central section of 

Michigan’s Upper Peninsula, along the 

southern shore of Lake Superior. The 

eastern half of the Upper Peninsula is 

bounded by Lakes Superior, Michigan, 

and Huron. There are a variety of other 

national parks in the upper Great Lakes, 

including Apostle Islands National 

Lakeshore and Isle Royale National Park 

on Lake Superior, and Sleeping Bear 

Dunes and Indiana Dunes National 

Lakeshores on Lake Michigan. Canadian 

provincial parks are also located on 

Lake Superior. 

The national lakeshore stretches from 

Munising to Grand Marais, 

approximately 40 miles to the northeast. 

The shoreline consists of narrow sandy 

beaches, sandstone cliffs, and a perched 

sand dune system. The sandy shoreline 

is susceptible to erosion from natural 

weather conditions. 

Pictured Rocks National Lakeshore 

was authorized in 1966. The lakeshore 

is noted for its multicolored sandstone 

cliffs, beaches, sand dunes, waterfalls, 

inland lakes, wildlife, and forested 

shoreline. Attractions include a 

lighthouse and former Coast Guard 

lifesaving stations, along with old 

farmsteads and orchards. The lakeshore 

is a year-round recreational destination 

where hiking, camping, hunting, nature 

study, and winter activities abound. 

Purpose of Pictured Rocks National 

Lakeshore 

As formulated during the Pictured 

Rocks National Lakeshore general 

management planning process, the 

purpose of the national lakeshore 

includes the following: 

• Preserve a portion of the Great 

Lakes shoreline for its geographic, 

scientific, scenic, and historic features, 

and its associated ecological processes. 

• Provide opportunities for public 

benefit in recreation, education, 

enjoyment, and inspiration. 

• Protect the character and use of the 

shoreline zone while allowing economic 

utilization of the inland buffer zone’s 

renewable resources. 

Significance of Pictured Rocks National 

Lakeshore 

As stated in the national lakeshore’s 

Draft General Management Plan/ 

Wilderness Study/Environmental 

Impact Statement, Pictured Rocks 

National Lakeshore is significant 

because: 

1. Pictured Rocks National Lakeshore 

preserves and affords public access to a 

spectacular and diverse segment of the 

Lake Superior shoreline. 

2. Unmatched in their scenic value, 

the 200-foot high Pictured Rocks cliffs 

rise perpendicularly from Lake 

Superior, creating a rock mosaic of form, 

color, and texture, which is enhanced 

by cascading waterfalls. Grand Sable 

Dunes, perched atop 300-foot-high sand 

banks above Lake Superior, is one of 

two perched dune systems on the Great 

Lakes; within these dunes live unique 

plant communities resulting from 

geomorphic processes. 

3. Twelve miles of unspoiled and 

undeveloped Lake Superior beach 

contrast with the Pictured Rocks cliffs 

and Grand Sable Dunes. 

4. Bedrock geology and glacial 

landforms provide significant 

topographic relief marked by streams, 

inland lakes, and a diversity of 

associated vegetation. 

5. The shoreline offers extraordinary 

and inspirational scenic vistas of Lake 

Superior, which has the largest surface 

area of any fresh water lake on earth. 

6. Pictured Rocks National Lakeshore 

offers a variety of affordable year-round 

recreational opportunities for 

appropriate public use. 

7. Within a distinct area, the 

lakeshore contains a spectrum of 

cultural resources focused on the 

human use of Lake Superior and its 

shoreline. 

8. Lying in a transition zone between 

boreal and eastern hardwood forest, the 

lakeshore’s scientifically recognized 

assemblage of flora and fauna is 

representative of associations unique to 

the Lake Superior Basin. 

9. Pictured Rocks National Lakeshore 

is the only national park system area 

with a legislated buffer zone. 

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 Pictured Rocks National 

Lakeshore 

PWC use in Pictured Rocks National 

Lakeshore began around 1990. Before 

the ban, use was only allowed on Lake 

Superior, and it was relatively low. 

Restrictions on inland lakes precluded 

PWC use on those lakes. Pictured Rocks 

National Lakeshore has jurisdiction on 

the surface water of Lake Superior 

extending 0.25 mile from the shoreline. 

This final rule would only apply to the 

waters under the lakeshore’s 

jurisdiction. In addition, Michigan’s 

Personal Watercraft Safety Act of 1998 

(Public Act 116) stipulates regulations 

for PWC use. One of the regulations is 

that personal watercraft cannot operate 

within 200 feet of the shoreline unless 

traveling perpendicular to shoreline at 

no-wake speed. 

Before the ban, PWC operation on 

Lake Superior was concentrated 

between Sand Point and Chapel Beach, 

along the Lake Superior shoreline. The 

eastern side of the park had little PWC 

use. Rivers and streams within Pictured 

Rocks National Lakeshore are not 

accessible to personal watercraft due to 

extremely small size, shallow depths, 

and rocky bottoms. On inland lakes 

within the Lakeshore boundaries, the 

size of powerboat engines is restricted to 

two- and four-stroke internal 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61895 

combustion engines of 50 hp or less, 

essentially eliminating PWC use. 

Before the ban was imposed, most 

PWC users at the park were from within 

100 miles of the lakeshore. Based on 

staff observations, some users came 

from other parts of Michigan, 

Wisconsin, and Minnesota, and perhaps 

Ohio and Illinois. There are many other 

areas for water-based recreation in this 

portion of the Upper Peninsula, 

including State parks, national forests, 

and other lakes with public access. Such 

areas include other portions of Lake 

Superior (excluding the shore of Grand 

Island), many lakes within the Escanaba 

River and Lake Superior State Forests, 

several lakes within the Hiawatha 

National Forest, Manistique Lake, South 

Manistique Lake, and Lake Michigan. 

To document actual PWC use and to 

provide peak usage information, staff 

conducted a survey at the Sand Point 

launch July 4–8, 2001. During the fiveday survey, small craft warnings 

prohibited personal watercraft on two 

days. PWC use for the remaining three 

days ranged from 8 to 13 personal 

watercraft each day. Thus, the peak 

number of personal watercraft that were 

operating before the ban in the 

lakeshore was 13 per day—6.6 from the 

Sand Point launch and 6.6 from the 

Munising boat ramp. 

Before the ban, because personal 

watercraft were also launched from the 

Munising boat ramp on the west end of 

the lakeshore, the city was contacted to 

determine launch numbers. However, 

specific data were not available. Based 

on discussions with lakeshore staff, the 

number of personal watercraft launched 

from Munising was assumed to be the 

same as the number launched from 

Sand Point. Based on the analysis of the 

survey and assumptions, 6.6 personal 

watercraft would be launched from the 

Munising boat ramp each day during 

July and August weekends. All of these 

personal watercraft would likely travel 

within the lakeshore’s jurisdiction. 

Grand Marais, on the east end of the 

lakeshore, also has boat launch 

facilities. According to city staff, very 

few personal watercraft are launched—

perhaps 12 all summer, for an average 

of 1 personal watercraft every seven 

days. This analysis assumes that on 

average no personal watercraft would be 

launched from Grand Marais during July 

and August. 

The low PWC numbers are primarily 

a result of the cold water temperature, 

cool ambient air temperature, 

changeable weather conditions, and 

heavy winds and wave action. The 

average PWC trip within Pictured Rocks 

National Lakeshore lasted between three 

and five hours, from mid morning to 

mid or late afternoon. State regulations 

restrict operations to the hours of 8 a.m. 

to one hour before sunset. Most PWC 

users cruised and sometimes raced 

along the shoreline, explored the rock 

cliffs up close, jumped the wakes of tour 

boats (which make 4–5 foot swells), and 

traveled to beach destinations and spent 

the day or afternoon on the beach. 

Fewer PWC users assembled in 

pontoons and did short trips or went to 

beach areas. A very small number may 

have done day trips between Munising 

and Grand Marais (40+ miles). Only a 

few users asked about PWC camping 

opportunities. 

Before the ban, PWC users were 

distributed throughout the lakeshore. 

According to NPS staff, most personal 

watercraft were operated on the west 

end of the lakeshore. This is consistent 

with the launch locations and predicted 

launch numbers. Few PWC operators 

traveled the entire length of the 

lakeshore due to the long distance, 

rough waters, and potential for changing 

weather. 

Generally, there is very little 

information specific to visitor concerns 

about PWC use. Visitor surveys were 

conducted for the winter of 1999–2000 

and for the summer of 2000 (with 

questions specific to PWC use in the 

national lakeshore). A majority of the 

respondents to the survey supported or 

strongly supported restricting PWC use 

to designated areas. No PWC accidents 

have been observed or reported to NPS 

staff. Five incident reports have been 

documented, one for operating too close 

to other motorcraft, two for operating 

too close to swimmers, and two for 

operating illegally on inland lakes. 

There are no observations or reports 

related to natural resource concerns. 

Notice of Proposed Rulemaking and 

Environmental Assessment 

On November 15, 2004, the National 

Park Service published a Notice of 

Proposed Rulemaking (NPRM) for the 

operation of PWC at Pictured Rocks 

National Lakeshore (69 FR 65556). The 

proposed rule for PWC use was based 

on alternative B (one of three 

alternatives considered) in the 

Environmental Assessment (EA) 

prepared by NPS for Pictured Rocks 

National Lakeshore. The environmental 

assessment was available for public 

review and comment for the period 

August 1 through November 15, 2002. 

An errata sheet was prepared to address 

the changes to alternative B, the 

preferred alternative. To request a copy 

of the document and the errata sheet 

contact Superintendent, Pictured Rocks 

National Lakeshore, N8391 Sand Point 

Road, P.O. Box 40, Munising, MI 49862–

0040. A copy of the Environmental 

Assessment and the errata sheet may 

also be found at http://www.nps.gov/ 

piro/pwc/pwc.htm. 

The purpose of the environmental 

assessment was to evaluate a range of 

alternatives and strategies for the 

management of PWC use at Pictured 

Rocks National Lakeshore to ensure the 

protection of park resources and values 

while offering recreational opportunities 

as provided for in the National 

Lakeshore’s enabling legislation, 

purpose, mission, and goals. The 

assessment assumed alternatives would 

be implemented beginning in 2002 and 

considered a 10-year period, from 2002 

to 2012. 

The environmental assessment 

evaluated three alternatives addressing 

the use of personal watercraft at 

Pictured Rocks National Lakeshore. The 

errata sheet modified one of the 

alternatives, Alternative B. Each 

alternative is described below: 

Alternative A—Under alternative A, 

PWC use would continue as was 

provided and managed within Pictured 

Rocks National Lakeshore before the 

ban. PWC use would be unrestricted on 

Lake Superior from the lakeshore’s 0.25- 

mile jurisdictional boundary to the 

lakeshore’s shoreline. Launch and 

retrieval of personal watercraft would be 

permitted only at the Sand Point boat 

ramp on Lake Superior. PWC users 

would be able to land anywhere along 

the shoreline. PWC users would 

continue to abide by Michigan’s 

Personal Watercraft Safety Act of 1998 

(Public Act 116) and related regulations. 

Alternative B—Alternative B was 

modified by the errata dated October 

2003. Under the modified alternative B, 

PWC use would be allowed to operate 

on the waters of Lake Superior within 

the boundaries of Pictured Rocks 

National Lakeshore from the western 

boundary of the lakeshore up to the east 

end of Miners Beach. 

PWC use would be allowed under the 

following conditions: Personal 

watercraft may only be launched from a 

designated launch site at Sand Point, 

PWC users may beach their craft only at 

Sand Point Beach and Miners Beach, 

and PWC users may not launch or 

operate in any other area of the 

lakeshore. The superintendent of the 

park may temporarily limit, restrict, or 

terminate access to areas designated for 

PWC use after taking into consideration 

public health and safety, natural and 

cultural resource protection, and other 

management activities and objectives. 

PWC use would be restricted at specific 

locations during the permitted use of 

ethnographic resources. Boat patrols 

would be conducted in the vicinity of 

61896 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

the ethnographic resource use in order 

to reduce the potential for PWC-related 

intrusion into the ceremonial activity. 

PWC users would continue to abide by 

Michigan’s Personal Watercraft Safety 

Act of 1998 (Public Act 116) and related 

regulations, as identified in alternative 

A. This alternative would allow PWC 

use along the Lake Superior shoreline 

within the western end of the park, 

covering approximately 8 miles of 

shoreline. The numbers of personal 

watercraft would not be restricted. 

No-Action Alternative—Under the noaction alternative, the National Park 

Service would take no action to 

reinstate the use of personal watercraft 

at Pictured Rocks National Lakeshore 

and no special rule would be 

promulgated to continue personal 

watercraft use. Under this alternative, 

NPS would continue to prohibit 

personal watercraft use at Pictured 

Rocks National Lakeshore begun on 

April 22, 2002. 

As stated in the NPRM, alternative B 

is the park’s preferred alternative 

because it best fulfills the park 

responsibilities as trustee of the 

sensitive habitat; ensures safe, healthful, 

productive, and aesthetically and 

culturally pleasing surroundings; and 

attains a wider range of beneficial uses 

of the environment without degradation, 

risk of health or safety, or other 

undesirable and unintended 

consequences. This final rule contains 

regulations to implement alternative B 

at Pictured Rocks National Lakeshore. 

Summary of Comments 

A proposed rule was published in the 

Federal Register for public comment on 

November 15, 2004, with the comment 

period lasting until January 14, 2005 (69 

FR 65556). The National Park Service 

(NPS) received 600 timely written 

responses regarding the Environmental 

Assessment (EA) and proposed 

regulation. Of the responses, 387 were 

form letters in 6 different formats, and 

213 were separate letters. Of the 213 

separate letters, 202 were from 

individuals, 8 from organizations, one 

from a congressional affiliation, and 2 

from government agencies. Within the 

following discussion, the term 

‘‘commenter’’ refers to an individual, 

organization, or public agency that 

responded. The term ‘‘comments’’ refers 

to statements made by a commenter. 

General Comments 

1. One commenter stated that the 

Environmental Assessment (EA) failed 

to use the best data available and picked 

alternative B without adequate scientific 

justification. 

NPS Response: Where data was 

lacking, best professional judgment 

prevailed, using assumptions and 

extrapolations from scientific literature, 

other park units where personal 

watercraft (PWC) are used, and personal 

observations of park staff. The NPS 

believes that the EA is in full 

compliance with the court-ordered 

settlement and that the Finding of No 

Significant Impact (FONSI) shows that 

modified alternative B (Continued PWC 

use under special NPS regulation with 

management restrictions) is the 

preferred alternative and that decision 

has been adequately analyzed and 

explained. 

2. The American Land Alliance 

suggested that the EA fails to analyze 

the surrounding opportunities for PWC 

use in the Upper Peninsula, because 

there are ample opportunities outside 

the park for PWC use, including state 

and private lands. 

NPS Response: The location of nearby 

launching facilities is described in 

several sections of the EA and includes 

the Munising boat ramp and Grand 

Marais public launch, as well as the 

lakeshore’s Sand Point launch. The EA 

notes that there are many other areas for 

water-based recreation in the central 

Upper Peninsula, including state parks, 

national forests, and other lakes with 

public access (See page 51 of the EA, 

Affected Environment—Visitor Use and 

Experience). There is a text change on 

the errata sheet adding other areas 

available for water-based recreation. 

3. One commenter stated that the 

labeling of the alternative prohibiting 

PWC as the ‘‘no-action alternative’’ is 

misleading since PWC have been used 

without restriction for many years at the 

lakeshore. The commenter suggested 

issuing a revised EA with a clear 

designation of a No PWC alternative, 

and providing a new comment period 

after the revised EA is released. 

NPS Response: The NPS Director’s 

Order #12 states that a full range of 

alternatives must be examined and that 

‘‘the alternatives carried forward for 

analysis must meet project objectives to 

a large degree, although not necessarily 

completely.’’ Under a full range of 

alternatives, the no-action alternative is 

developed as a viable choice in the 

range of alternatives and it sets a 

baseline of existing impact continued 

into the future against which to compare 

impacts of action alternatives. The NoAction alternative is a continuation of 

existing conditions and activities, which 

at the time the environmental analyses 

were being conducted was a ban on 

personal watercraft. 

4. Two commenters stated that the EA 

fails to meet the requirements of NEPA 

because a reasonable range of 

alternatives was not evaluated. 

NPS Response: A summary of the 

personal watercraft litigation is 

contained under ‘‘Personal Watercraft 

Regulatory Framework’’ in the ‘‘Purpose 

and Need’’ chapter of the EA. The NPS 

had to comply with the court order, 

which resulted from Bluewater v. 

Stanton, and assess the impacts of 

personal watercraft on those resources 

specified by the judge, as well as other 

resources that could be affected. NPS 

believes a reasonable range of 

alternatives was evaluated. After 

analyses were done for every applicable 

impact topic with the best available data 

and input from the public was analyzed, 

Pictured Rocks National Lakeshore 

management selected modified 

alternative B as its preferred alternative. 

Implementation of Alternative B in the 

final rule will allow PWC use west of 

Miners Beach. 

5. Several commenters stated that 

allowing PWC use with additional 

restrictions violates the park’s enabling 

legislation and NPS mandate to protect 

resources from harm. 

NPS Response: No part of the 

settlement agreement or NPS analysis of 

PWC use has violated or overturned 

Pictured Rocks National Lakeshore’s 

enabling legislation. Both the personal 

watercraft settlement agreement and the 

authorizing legislation for Pictured 

Rocks National Lakeshore were 

considered when developing 

alternatives for the EA. The objective of 

the EA, as described in the ‘‘Purpose 

and Need’’ chapter of the EA, was 

derived from the enabling legislation for 

Pictured Rocks National Lakeshore. As 

further stated in this chapter, a special 

analysis on the management of personal 

watercraft was also provided under each 

alternative to meet the terms of the 

settlement agreement between 

Bluewater Network and the NPS. 

As a result, the alternatives presented 

in the EA protect resources and values 

while providing recreational 

opportunities at Pictured Rocks 

National Lakeshore. As required by NPS 

policies, the impacts associated with 

personal watercraft and other 

recreational uses are evaluated under 

each alternative to determine the 

potential for impairment to park 

resources. The NPS finds that 

implementation of the modified 

preferred alternative (alternative B) in 

the final rule will not result in 

impairment of park resources and 

values for which the Pictured Rocks 

National Lakeshore was established. 

6. One commenter suggested that the 

EA does not comply with the court 

settlement with Bluewater Network, and 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61897 

is out of compliance with the 

agreement. 

NPS Response: A summary of the NPS 

rulemaking and associated personal 

watercraft litigation is provided in 

Chapter 1, Purpose of and Need for 

Action, Background, of the EA. NPS 

believes it has complied with the court 

order and has assessed the impacts of 

personal watercraft on those resources 

specified by the judge, as well as other 

resources that could be affected. This 

analysis was completed for every 

applicable impact topic with the best 

available data, as required by Council 

on Environmental Quality regulations 

(40 CFR 1502.22). Where data was 

lacking, best professional judgment 

prevailed using assumptions and 

extrapolations from scientific literature, 

other park units where personal 

watercraft are used, and personal 

observations of park staff. 

The NPS believes that the EA is in full 

compliance with the court-ordered 

settlement and that the FONSI shows 

that the decision to implement modified 

alternative B (Continued PWC use under 

special NPS regulation with 

management restrictions) as the 

preferred alternative in the final rule has 

been adequately analyzed and 

explained. 

7. One commenter stated that PWC 

have not been recognized by the U.S. 

Coast Guard as Class A vessels, and that 

the Coast Guard has refrained from 

defining PWC. 

NPS Response: The NPS has chosen 

to define PWC and our definition is as 

follows: Personal watercraft refers to a 

vessel, usually less than 16 feet in 

length, which uses an inboard, internal 

combustion engine powering a water jet 

pump as its primary source of 

propulsion. The vessel is intended to be 

operated by a person or persons sitting, 

standing or kneeling on the vessel, 

rather than within the confines of the 

hull. 

8. One person commented that the EA 

incorrectly references the Michigan 

Personal Watercraft Safety Act of 1998 

regarding the prohibition of PWC 

‘through submerged and emergent 

vegetation.’

NPS Response: The statement in the 

EA was incorrect and has been updated 

on the errata sheet as follows: Guiding 

Regulations and Policies, second 

paragraph, change last sentence to read 

‘‘Personal watercraft are not allowed to 

operate in waters where the water depth 

is less than two feet unless the 

watercraft is being operated at slow, nowake speed or is being docked or 

launched.’’

9. Several commenters stated that the 

preferred alternative is likely to violate 

the Organic Act by sacrificing full 

protection of park resources if PWC use 

is allowed within the park. Further, the 

draft regulations appear to violate the 

NPS mandate to fully protect park 

resources by allowing the use of 

damaging PWC on park waters. 

NPS Response: The ‘‘Summary of 

Laws and Policies’’ section in the 

‘‘Environmental Consequences’’ chapter 

of the EA summarizes the three 

overarching laws that guide the National 

Park Service in making decisions 

concerning protection of park resources. 

These laws, as well as others, are also 

reflected in the NPS Management 

Policies. An explanation of how the 

Park Service applied these laws and 

policies to analyze the effects of 

personal watercraft on Pictured Rocks 

National Lakeshore resources and 

values can be found under ‘‘Impairment 

Analysis’’ in the ‘‘Methodology’’ section 

of the EA. 

Impact thresholds are not arbitrary; 

rather, they are established by a review 

of applicable literature, consultation 

with subject matter experts, applicable 

regulatory standards, and best 

professional judgment. The methods for 

establishing specific thresholds are 

disclosed under each impact topic. 

The National Park Service has 

determined that, under the modified 

preferred alternative (alternative B), as 

implemented in this final rule, there 

will be no major negative impacts on 

park resources or values. 

10. One commenter stated that PWC 

use estimates used in the EA are 

inaccurate. Specifically, the launch 

points within the lakeshore are 

unmonitored, so the number of PWC 

that use the lakeshore, along with trends 

in PWC use, are unknown. 

NPS Response: See Errata Sheet, 

Table 11, for the EA: The totals have 

been corrected and do not substantially 

change NPS conclusions. 

The 2000 and 2001 data indicate a 1% 

increase in PWC registration. While 

PWC registration increased by as much 

as 19% in 1996, the past five years of 

data exhibit a substantial decreasing 

trend in PWC registration in the state. 

This trend is also confirmed by industry 

sales data (http://www.pwia.org/ 

Abo_PWC.htm). In consultation with 

park staff and through review of 

national data, the NPS believes that a 

2% annual increase in PWC use at the 

lakeshore is appropriate. 

Historical use of PWC is described on 

pages 51 and 52 of the ‘‘Affected 

Environment’’ section of the EA. The 

NPS used all available data to 

extrapolate PWC use trends within the 

lakeshore. PWC visitor use trends were 

determined using data available from 

the park, discussions with staff, as well 

as discussions with the Cities of 

Munising and Burt Township, which 

oversee local public launch facilities. 

The best practicable data was used and 

the NPS is confident that the analysis 

provides a reasonable evaluation of 

potential PWC use within the lakeshore. 

11. One commenter stated that there 

is an error in Table 12: Peak Daily 

Visitor Use Numbers in the EA, because 

the whole chart is based on an overly 

simplistic interpretation of the PWC/ 

Motorboat relationship. When segment 

three states that there will be zero ‘‘PWC 

users,’’ the model accidentally 

extrapolates that there will be zero 

‘‘other motorboats’’ as well. In addition, 

the model should have predicted some 

amount of growth in kayaking and 

canoeing over the next 10 years. 

NPS Response: Alternative B and the 

no-action alternative assume that all 

motorized craft would be excluded from 

areas designated as primitive under a 

draft or final general management plan. 

The potential primitive area would 

extend 0.25 mile into Lake Superior 

from the shoreline, between Spray Falls 

and 1.25 miles east of Sevenmile Creek. 

The modified preferred alternative 

(alternative B), as implemented in this 

final rule, further restricts PWC use by 

discontinuing PWC use east of Miners 

Beach. 

The number of sea kayakers and 

canoeists was estimated to increase 5% 

over the next ten years. A more accurate 

estimate, per recent discussions with 

park staff, would be an increase of 5% 

per year over the next 10 years. Thus, 

the number of canoeists/kayakers is 

estimated to increase from 45 persons in 

2002 to 73 persons in 2012. These 

visitors would be distributed throughout 

the lakeshore. Although this is a 

relatively large increase in use as 

compared to the numbers evaluated in 

the EA, it would not change the 

evaluation that was completed. As 

indicated in the Visitor Experience 

section (page 107 of the EA), most nonmotorized craft are concentrated closer 

to shore, such that interactions between 

these users and PWC would be 

infrequent. Additionally, PWC present 

near the shore are required to travel at 

flat-wake speed and would have 

minimal impact on non-motorized 

watercraft in that area. 

Comments Regarding Water Quality 

12. One commenter stated that 

impacts to water quality from PWC are 

underestimated. Polycyclic Aromatic 

Hydrocarbons (PAHs) can remain 

suspended in the water column or 

deposited in sediment for years after 

initial deposition. Even minor, shortVerDate Aug<31>2005 16:58 Oct 26, 2005 Jkt 208001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\27OCR1.SGM 27OCR1
61898 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

term oil spills can cause detrimental 

damage to aquatic wildlife. Exposure to 

hydrocarbon (HC) pollution can 

interfere with biological processes of the 

lakeshore’s plants and wildlife. 

NPS Response: The protection of 

water quality within the Pictured Rocks 

National Lakeshore has been addressed 

in the EA in a conservative evaluation 

of surface water quality impacts. 

Estimated minimum threshold volumes 

of water were determined for the PWC 

use areas where concentrations of 

gasoline constituents discharged from 

personal watercraft and other outboard 

engines could potentially be toxic to 

aquatic organisms or humans. Using the 

estimated threshold volumes, volumes 

of the areas being evaluated, PWC and 

other motorboat high-use-day loadings 

of chemicals identified as constituents 

of gasoline, and water quality 

benchmarks, it is possible to identify 

potentially unacceptable impacts to 

human health or the environment. 

Chronic water quality benchmarks 

protective of aquatic populations and 

protective of human health were 

acquired from various sources, 

including USEPA water quality criteria. 

Potential impacts to wildlife and plants 

from personal watercraft were addressed 

in other sections of the EA. 

This comment appears to have several 

errors in its assertions regarding the 

water quality impact section of the EA: 

None of the three alternatives is 

expected to have a ‘‘moderate to major’’

impact as stated in the comment. All 

water quality impacts from personal 

watercraft are expected to be negligible 

to minor. Despite the fact that estimated 

water concentrations of individual 

PAHs are well below water quality 

benchmarks, cumulative impacts from 

PWC and motorboat use were judged to 

be ‘‘minor to moderate’’ when the 

potential for phototoxicity from total 

PAHs is considered. 

This comment also misquotes the EA 

as follows: ‘‘* * * most PWC gas and 

oil spills ‘volatize’ into the atmosphere 

***’’. The EA for Pictured Rocks 

National Lakeshore considers the range 

of organic compound behavior in water 

on page 65 of the EA: 

Many organic pollutants that are initially 

dissolved in the water volatilize to the 

atmosphere, especially if they have high 

vapor pressures, are lighter than water, and 

mixing occurs at the air/water interface. 

Other compounds that have low vapor 

pressure, low solubility, and high octanol/ 

water partition coefficients tend to adhere to 

organic material and clays and eventually 

adsorb onto sediments. 

13. One commenter stated that the 

analysis represents an outdated look at 

potential emissions from an overstated 

PWC population of conventional twostroke engines, and underestimated the 

accelerating changeover to four-stroke 

and newer two-stroke engines. The net 

effect is that the analysis overestimates 

potential PWC HC emissions, including 

benzene and PAHs, to the water. In 

addition, the water quality analysis uses 

assumptions that result in 

overestimation of potential PWC HC 

emission to the water. For example, the 

analysis states that benzo(a)pyrene 

concentrations in gasoline can be ‘‘up to 

2.8 mg/kg.’’

NPS Response: The NPS recognizes 

that the assumption of all personal 

watercraft using 2-stroke engines in 

2002 is conservative but believes it was 

appropriate to be protective of park 

resources. The assumption is consistent 

with emission data available in 

California Air Resources Board (CARB) 

(1998) and Bluewater Network (2001). 

The emission rate of 3 gallons per hour 

at full throttle is a mid-point between 3 

gallons in two hours (1.5 gallons per 

hour; NPS 1999) and 3.8 to 4.5 gallons 

per hour for an average 2000 model year 

personal watercraft (Personal Watercraft 

and Bluewater Network 2001). The 

assumption also is reasonable in view of 

the initiation of production line testing 

in 2000 (EPA 1997) and expected full 

implementation of testing by 2006 (EPA 

1996). 

Reductions in emissions used in the 

water quality impact assessment are in 

accordance with the overall 

hydrocarbon emission reduction 

projections published by the EPA 

(1996). EPA (1996) estimates a 52% 

reduction by personal watercraft by 

2010 and a 68% reduction by 2015. The 

50% reduction in emissions by 2012 

(the future date used in the EA) is a 

conservative interpolation of the 

emission reduction percentages and 

associated years (2010 and 2015) 

reported by the EPA (1996) but with a 

one-year delay in production line 

testing (EPA 1997). 

The estimate of 2.8 mg/kg for 

benzo(a)pyrene in gasoline used in the 

calculations is considered conservative, 

yet realistic, since it is within the range 

of concentrations measured in gasoline, 

according to Gustafson et al. (1997). 

14. One commenter stated that the 

‘‘cleaner and quieter’’ PWC will still 

cause significant damage to the 

environment and wildlife because PWC 

produce pollutants such as PAHs that 

are toxic to plants and animals even at 

minute levels. 

NPS Response: Personal watercraft 

and outboard motorboat engines 

discharge both unburned and burned 

gasoline and oil. In fact, it was shown 

in the EA that because more outboards 

than personal watercraft are used in the 

lakeshore, the outboards contributed 

more of the organic compounds 

evaluated (PAHs and benzene) than 

personal watercraft. The new engine 

technology, including four-stroke 

engines and two-stroke direct injection 

engines, substantially reduces the 

emissions of most pollutants to the 

water and the air. As older personal 

watercraft are replaced with new, 

cleaner models, the emission rates of 

pollutants will decrease. 

It is agreed that some research 

indicates that PAH toxicity can be 

enhanced by exposure to ultraviolet 

radiation in oligotrophic lakes having 

high light penetration (Oris et al. 1998). 

Limited data indicate that, under these 

conditions, PAHs may have toxic effects 

on fish and zooplankton at very low 

concentrations (less than 1 μg/L). 

Conversely, some PAHs may be 

degraded via photodegradation or 

microbial degradation (Fasnacht and 

Blough 2002; Albers 2002). Impacts to 

water quality from the emission of 

selected PAHs present in gasoline 

emissions (benzo(a)pyrene, 

naphthalene, and 1-methyl 

naphthalene) were evaluated in the EA. 

Also, the potential for increased toxic 

effects of PAHs is recognized and 

discussed qualitatively in the impact 

analyses, where appropriate. 

15. One commenter stated that Lake 

Superior was designated by the U.S. and 

Canada Joint Commission as a zero 

discharge body of water, and the 

considerable amount of pollution 

discharged by PWC comprises more 

than ‘‘zero’’ discharge. 

NPS Response: The impacts of both 

noise and discharge of burned and 

unburned fuel by personal watercraft 

were evaluated in the EA. In 1991, an 

International Joint Commission 

recommended that Lake Superior be a 

‘‘zero discharge’’ demonstration zone 

(GLC 2003). However, the latest listing 

(March 2003) of priorities by the Great 

Lakes Commission in ‘‘2003 Great Lakes 

Program: Restore the Greatness’’ does 

not mention zero discharge as a priority 

for the coming year. The only current 

reference to zero discharge found on the 

Great Lakes Commission Web site 

(http://www.glc.org) is for zero 

discharge of aquatic nuisance species 

that are often carried in ship ballast 

water that is dumped after the ships 

enter the Great Lakes. Zero discharge of 

fuel from recreational boating does not 

appear to be an achievable objective 

since one of every three registered 

recreational vessels in the United States 

is found in the Great Lakes (GLC 2003). 

In response to the EPA emission 

reduction regulations (EPA 1996, 1997), 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61899 

the discharge of fuel and its associated 

pollutants by personal watercraft and 

other motorboats is being reduced. The 

net effect of this reduction is factored 

into the EA impact analysis of water 

quality. 

Comments Regarding Air Quality 

16. One commenter stated that the 

analysis does not properly account for 

the rapid engine conversion that is 

occurring due to the phase-in of cleaner 

running engine technologies. 

NPS Response: A conservative 

approach was used in the analysis, since 

the numbers of PWC that have already 

converted to four-stroke engines are not 

known. In addition, the Environmental 

Protection Agency (EPA) model takes 

into account the reduction in emissions 

over time. Even with the conservative 

approach, the analysis for alternative B 

presented in the EA indicates that 

current PWC use at Pictured Rocks 

National Lakeshore would result in 

negligible to moderate impacts to air 

quality. 

17. One commenter indicated that 

direct-injected two-stroke engines are 

dirtier than four-stroke engines. 

NPS Response: The comment is 

correct in stating the relationships 

between emissions of two-stroke direct 

injection and four-stroke PWC engines. 

EPA NONROAD model factors differ 

from those of the California Air 

Resources Board (CARB). As a result of 

the EPA rule requiring the 

manufacturing of cleaner PWC engines, 

the existing carbureted two-stroke PWC 

will, over time, be replaced with lesspolluting PWC models. This 

replacement, with the anticipated 

resultant improvement in air quality, is 

parallel to that experienced in urban 

environments as the automobile fleet 

becomes cleaner over time. 

18. One commenter stated that the 

analysis fails to mention the impact of 

PWC permeation losses on local air 

quality. 

NPS Response: Permeation losses of 

volatile organic compounds (VOCs) 

from personal watercraft were not 

included in the calculation of air quality 

impacts primarily because these losses 

are insignificant relative to emissions 

from operating watercraft. Using the 

permeation loss numbers in the 

comment (estimated to be half the total 

of 7 grams of losses per 24 hours from 

the fuel system), the permeation losses 

per hour from fuel systems are orders of 

magnitude less than emissions from 

operating personal watercraft. 

Therefore, including permeation losses 

would have no effect on the results of 

the air quality impact analyses. Also, 

permeation losses were not included 

because of numerous related unknown 

contributing factors, such as the number 

of personal watercraft refueling at the 

lakeshore and the location of refueling 

(inside or outside of the airshed). 

19. One commenter stated that none 

of the air quality monitoring sites used 

as part of the analysis are located at the 

lakeshore, and that the most recent data 

available to the NPS are from 1999. 

NPS Response: The statewide air 

quality monitoring sites are located near 

areas where air quality is known or 

likely to be impaired. As the comment 

states, data used in the EA were 

obtained from the 1999 Air Quality 

Report which, at time of preparation, 

was the best published regional source 

of general air quality information. 

Current site-specific background air 

monitoring data were also reviewed, 

available from the State of Michigan’s 

website http://www.michigan.gov/deq/ 

0,1607,7–135–3310_4104---,00.html. The 

closest monitoring site is for PM2.5

located at Traverse City, Michigan. It is 

agreed that monitoring sites distant from 

the location do not provide 

representative data for Pictured Rocks 

National Lakeshore; however, they are 

the nearest available sources of data. 

The absence of closer State monitoring 

sites is indicative of the good overall air 

quality in the area and attainment status 

with respect to all national ambient air 

quality standards. No health or 

environmental risks are identified by 

the Michigan Department of 

Environmental Quality that would 

warrant more frequent or intensive 

monitoring in the area. The EA analyzed 

air impacts by assessing the effects of 

predicted pollutant emissions, rather 

than measuring ambient air conditions, 

due to the lack of available site-specific 

monitoring data and cost and 

uncertainty factors inherent in obtaining 

and interpreting such data. In this 

context, the NPS takes the position that 

‘‘appropriate consideration’’ has been 

given to air quality impacts from PWC. 

20. One commenter stated that the EA 

fails to analyze new four-stroke engine 

technology. The PAH concentrations 

derived from worst-case modeling are 

orders of magnitude below the 

permissible exposure limits established 

by the Occupational Safety and Health 

Administration (OSHA) and National 

Institute for Occupational Safety and 

Health (NIOSH); therefore, continued 

PWC use would not pose any adverse 

health risks for park visitors under 

worst-case airborne PAH 

concentrations. 

NPS Response: The criteria for 

analysis of impacts from PWC to human 

health are based on the National 

Ambient Air Quality Standards 

(NAAQS) for criteria pollutants, as 

established by the U.S. EPA under the 

Clean Air Act, and on criteria pollutant 

annual emission levels. This 

methodology was selected to assess air 

quality impacts for all NPS EAs to 

promote regional and national 

consistency, and identify areas of 

potential ambient standard exceedances. 

PAHs are not assessed specifically as 

they are not a criteria pollutant. 

However, they are indirectly included 

as a subset of Total Hydrocarbons 

(THC), which are assessed because they 

are the focus of the EPA’s emissions 

standards directed at manufacturers of 

spark ignition marine gasoline engines 

(See 61 FR 52088; October 4, 1996). 

Neither peak exposure levels nor NIOSH 

nor OSHA standards are included as 

criteria for analyzing air quality related 

impacts, except where short-term 

exposure is included in a NAAQS. 

As stated above, the methodology for 

assessing air quality impacts was based 

on a combination of annual emission 

levels and the NAAQS, which are aimed 

at protection of the public. OSHA and 

NIOSH standards are intended primarily 

for workers and others exposed to 

airborne chemicals for specific time 

periods. The OSHA and NIOSH 

standards are not as suitable for 

application in the context of local and 

regional analysis of a park or 

recreational area as are the ambient 

standards, nor are they intended to 

protect the general public from exposure 

to pollutants in ambient air. 

The ‘‘Kado Study’’ (Kado et al. 2000) 

presented the outboard engine air 

quality portion of a larger study 

described in Outboard Engine and 

Personal Watercraft Emissions to Air 

and Water: A Laboratory Study (CARB 

2001). In the CARB report, results from 

both outboards and personal watercraft 

(two-stroke and four-stroke) were 

reported. The general pattern of 

emissions to air and water shown in 

CARB (2001) was two-stroke carbureted 

outboards and personal watercraft 

having the highest emissions, and fourstroke outboard and personal watercraft 

having the lowest emissions. The only 

substantive exception to this pattern 

was in nitrogen oxide (NOX) emissions 

to air: Two-stroke carbureted outboards 

and personal watercraft had the lowest 

NOX emissions, while the four-stroke 

outboard had the highest emissions. 

Therefore, the pattern of emissions for 

outboards is generally applicable to 

personal watercraft and applicable to 

outboards directly under the cumulative 

impacts evaluations. 

21. One commenter expressed 

concern that PWC emissions were 

declining faster than forecasted by the 

61900 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

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 

incorporate into the 1996 Spark Ignition 

Marine Engine rule were used as the 

basis for the assessment of air quality, 

and not the Sierra Research data. It is 

agreed that these data show a greater 

rate of emissions reductions than the 

assumptions in the 1996 rule and in the 

EPA’s NONROAD Model, which was 

used to estimate emissions. However, 

the level of detail included in the Sierra 

Research report has not been carried 

into the EA for reasons of consistency 

and conformance with the model 

predictions. Most states use the EPA’s 

NONROAD Model for estimating 

emissions from a broad array of mobile 

sources. To provide consistency with 

state programs and with the methods of 

analysis used for other similar NPS 

assessments, the NPS has elected not to 

base its analysis on focused research 

such as the Sierra Report for assessing 

PWC impacts. 

It is agreed that the Sierra Research 

report provides data on ‘‘worst case’’

scenarios. However worst case or shortterm scenarios were not analyzed for air 

quality impacts in this or other NPS 

EAs. 

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. 

CARB certified PWC may be used; 

however, the degree of certainty of 

overall use of this engine type 

nationwide is not well established. For 

consistency and conformity in 

approach, the NPS has elected to rely on 

the assumptions in the 1996 S.I. Engine 

Rule, which are consistent with the 

widely used NONROAD emissions 

estimation model. The outcome is that 

estimated emissions from combusted 

fuel may be in the conservative range, 

if compared to actual emissions. 

Comments Regarding Soundscapes 

22. One commenter stated that 

continued PWC use in the Pictured 

Rocks National Lakeshore will not result 

in sound emissions that exceed the 

applicable federal or state noise 

abatement standards, and technological 

innovations by the PWC companies will 

continue to result in substantial sound 

reductions. 

NPS Response: The NPS concurs that 

on-going and future improvements in 

engine technology and design will likely 

further reduce the noise emitted from 

PWC. However, given the ambient noise 

levels at the lakeshore, it is unlikely that 

the improved technology could reduce 

all impacts to negligible adverse, 

particularly at the Sand Point launch. 

23. One commenter cited noise testing 

conducted at Glen Canyon National 

Recreation Area (NRA) that indicated 

the maximum noise levels for PWC were 

actually lower than the maximum noise 

levels for other motorized vessels. In 

particular, the levels for PWC at 25 

meters (82 feet) were approximately 68 

to 76 A-weighted decibels (dB), whereas 

the levels for other motorized vessels at 

82 feet were approximately 64 to 86 Aweighted decibels. 

NPS Response: A correction has been 

included in the errata sheet to indicate 

that one PWC would emit 68 to 76 Aweighted dB at 82 feet. The reasons for 

assuming that PWC operate in pairs at 

the National Lakeshore are stated in the 

EA, and are based on staff observation 

and safety issues related to operating 

small watercraft at the park. Based on 

the PWC noise levels from the Glen 

Canyon study, two PWC would emit 66 

to 77 dB at 82 feet, 65 to 75 dB at 100 

feet, and 59 to 69 dB at 200 feet. The 

noise levels of two PWC traveling 

together would be less than the NPS 

noise limit of 82 dB at 82 feet for all 

alternatives. Given that ambient sound 

levels range from 22 dBA to 55 dBA in 

the lakeshore, the operation of PWC 200 

feet from shore would still have 

negligible to minor adverse effects on 

the soundscape. In most locations 

natural sounds would prevail and 

motorized noise would be very 

infrequent or absent. At destinations 

such as the Sand Point launch and 

Miners Castle, natural sounds would 

predominate but motorized noise could 

be heard occasionally throughout the 

day. The correction noted above will not 

change the impact determinations 

identified in the original analysis. 

24. One commenter stated that the EA 

has no site-specific support regarding 

the conclusion that PWC will inflict 

‘‘short-term negligible impacts’’ upon 

the lakeshore’s soundscapes and 

‘‘negligible adverse impacts’’ upon 

visitor experience. The commenter 

stated that most of the public comments 

received on the lakeshore’s draft 

General Management Plan (GMP) 

complained about PWC noise and urged 

that the machines be banned. 

NPS Response: The effects of PWC on 

soundscapes were evaluated for sitespecific areas, such as Sand Point, and 

general use areas, such as backcountry 

locations. The effects of PWC noise were 

determined to be negligible adverse to 

minor adverse, depending on the 

alternative and location. While many 

comments on the GMP were related to 

PWC noise, commenters also mentioned 

noise from chain saws, snowmobiles, 

and cars. Additionally, the visitor use 

survey conducted in the summer of 

2000 provided the following results: on 

a scale of 1 (not a problem) to 5 (very 

serious problem), backcountry visitors 

ranked ‘‘PWC disturbing backcountry 

experience’’ as 1.6 (no problem to slight 

problem). Frontcountry users identified 

PWC disruption as 1.4 on the same 

scale. Overall, more than 80% of the 228 

persons responding to this question 

indicated that PWC operation within the 

lakeshore was ‘‘no problem.’’ The NPS 

is confident that the soundscape 

analysis portrays an accurate 

description of the effects of PWC 

operation within the lakeshore. 

25. One commenter stated that the 

impact of PWC on non-motorized 

visitors was grossly underestimated. 

NPS Response: As stated previously, 

the summer visitor survey indicated that 

over 80% of the respondents, including 

backcountry visitors, identified PWC 

disturbance as ‘‘no problem.’’

Approximately 8% of the 228 

respondents identified PWC 

disturbances as a ‘‘serious or very 

serious’’ problem. The NPS recognizes 

that the degree to which a visitor is 

disturbed is a function of the timing, 

duration, and character of the PWC 

activity, as well as the visitor’s personal 

perceptions of PWC use. Based on the 

data evaluated, the NPS is confident 

that the impact evaluation provides a 

reasonable estimate of PWC impacts on 

soundscapes and visitor experience. 

Comments Regarding Wildlife 

26. One commenter stated that PWC 

use and human activities associated 

with their use may not be any more 

disturbing to wildlife species than any 

other type of motorized or nonmotorized watercraft. The commenter 

cites research by Dr. Rodgers, of the 

Florida Fish and Wildlife Conservation 

Commission, whose studies have shown 

that PWC are no more likely to disturb 

wildlife than any other form of human 

interaction, and that PWC posed less of 

a disturbance than other vessel types. 

Dr. Rodgers’ research clearly shows that 

there is no reason to differentiate PWC 

from motorized boating based on claims 

on wildlife disturbance. 

NPS Response: The NPS agrees that 

some research indicates that personal 

watercraft are no more apt to disturb 

wildlife than are small outboard 

motorboats; however, disturbance from 

both PWC and outboard motor boats 

does occur. Dr. Rodgers recommends 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61901 

that buffer zones be established for all 

watercraft, creating minimum distances 

between boats (personal watercraft and 

outboard motorboats) and nesting and 

foraging waterbirds. As part of the 

Michigan Personal Watercraft Safety 

Act, PWC operating within 200 feet of 

the shoreline of any Great Lake must 

travel perpendicular to the shore and 

operate at a flat-wake speed. With this 

restriction in mind, impacts to wildlife 

and wildlife habitat under all three 

alternatives were judged to be negligible 

at most locations along the shoreline. 

In addition, the EA was not 

conducted to determine if personal 

watercraft caused more environmental 

damage to park resources than other 

boats, but rather to determine if 

personal watercraft use was consistent 

with the national lakeshore’s enabling 

legislation and management goals and 

objectives. The alternatives listed and 

the determination of their consequences 

was based upon the best information 

available. 

27. One commenter stated that PWC 

cause lasting impacts to fish and 

wildlife. Two-stroke engines have been 

shown to produce pollutants that cause 

significant damage to aquatic plants and 

fish. 

NPS Response: It is anticipated that 

more combustion-efficient engines in 

personal watercraft will reduce 

pollutant emissions to air and water in 

the same manner that increased 

efficiencies in automobile engines, 

combined with catalytic converters and 

other technologies, decreased the 

amount and types of automobile exhaust 

emissions. EPA-sponsored evaluations 

of different personal watercraft engine 

designs and emissions concluded that 

emission reductions would result with 

implementation of the EPA emission 

standards for marine engines. The 

modified preferred alternative provides 

for further protection of wildlife in the 

lakeshore. Phasing in of new personal 

watercraft technology under the 

modified preferred alternative 

(alternative B) will reduce impacts to 

aquatic and shoreline species by 

reducing the discharge of fuel 

components into the water. These 

reductions should indirectly benefit 

wildlife by reducing some of the 

contaminant loading of surface waters. 

PAH toxicity to fish and wildlife 

species is a complicated topic because 

PAHs consist of dozens of different 

chemical compounds, each of which has 

substantially different toxicity 

characteristics in water, sediment, and 

soils, and toxicity varies dramatically 

among different fish and wildlife 

species. The ecological toxicity analysis 

for PAHs reported in the EA explains 

the chemical, physical, and biological 

conditions that were used to conduct 

the assessment of PAH effects to fish 

species. 

Comments Regarding Threatened and 

Endangered Species 

28. One commenter stated that the EA 

lacks site-specific data on PWC impacts 

to threatened and endangered species. 

NPS Response: The scope of the EA 

did not include site-specific surveys for 

species with the potential to occur at 

Pictured Rocks National Lakeshore. 

Potential for the occurrence and the 

location of special status species at 

Pictured Rocks National Lakeshore was 

based on existing surveys and studies 

conducted in the park in addition to 

input by park staff and federal and state 

agencies responsible for special status 

species management and protection. 

Identification of state and federally 

listed species was accomplished 

through discussions with park staff and 

informal consultation with U.S. Fish 

and Wildlife Service. Primary steps in 

assessing impacts on listed species were 

to determine (1) which species are 

found in areas likely to be affected by 

management actions described in the 

PWC alternatives, (2) current and future 

use and distribution of PWC by 

alternative, (3) habitat loss or alteration 

caused by the alternatives, and (4) 

displacement and disturbance potential 

of the actions and the species’ potential 

to be affected by PWC activities. 

The information used in the analysis 

was obtained through best professional 

judgment of park staff and experts in the 

field and by conducting a literature 

review. 

Documentation of the occurrence and 

locations of federal and state rare, 

threatened and endangered species at 

Pictured Rocks National Lakeshore was 

provided by National Park Service 

through several studies and surveys that 

have been conducted at the park. A list 

of federal and state protected species is 

provided in Table 6 in the EA. 

29. The U.S. Fish and Wildlife Service 

commented that the Grand Sable Dunes 

site was last verified by the Michigan 

Natural Features Inventory (MNFI) in 

1989, and recommended that the 

current presence of Pitcher’s thistle be 

verified. 

NPS Response: The location of 

Pitcher’s thistle described in the EA is 

based on discussion with park staff and 

is current. Park staff will advise the 

MNFI as requested. 

30. The U.S. Fish and Wildlife Service 

(USFWS) commented that the ‘‘not 

likely to adversely affect’’ determination 

for both action alternatives for the gray 

wolf, bald eagle, and Pitcher’s thistle 

suggests that there are beneficial, 

insignificant, or discountable effects of 

the proposed actions on these species. 

These effects are not clear in the EA. 

The USFWS stated that the EA seems to 

make a better case that the alternatives 

would have no effect on these three 

species, and suggested the park 

considers these determinations and 

provides support when the park 

requests Section 7 consultation with the 

USFWS office. 

NPS Response: The determination of 

‘‘not likely to adversely affect’’ was 

made based on the fact that, while PWC 

may provide access to locations where 

threatened/endangered species may be 

present, the likelihood of having an 

effect is extremely unlikely to occur. 

The errata has been updated to reflect a 

‘‘no effect’’ determination for the gray 

wolf and Pitcher’s thistle. After further 

analysis and discussions with U.S. Fish 

and Wildlife Service staff, the ‘‘not 

likely to adversely affect’’ determination 

for the bald eagle will remain, since the 

bald eagle’s use of the shoreline is 

limited and known nest sites are located 

east of Miners Beach, where PWC use 

would be prohibited. The errata has 

been updated with further information 

to support this determination. 

31. The U.S. Fish and Wildlife Service 

suggested that the extent to which bald 

eagles use the Lake Superior shoreline 

within Pictured Rocks National 

Lakeshore be described. If any such use 

occurs or can be expected to occur in 

the future, the park should clarify 

whether PWC use in the lakeshore could 

affect bald eagles. 

NPS Response: Based on discussions 

with park staff, the bald eagle’s use of 

the Lake Superior shoreline within 

Pictured Rocks National Lakeshore is 

limited. Known nest sites are located 

east of Miners Beach, where PWC use 

would be prohibited under the preferred 

alternative. The errata has been updated 

to reflect this. 

32. The U.S. Fish and Wildlife Service 

stated that NPS must complete Section 

7 consultation with the USFWS prior to 

completing a FONSI. The USFWS 

concurs that the only federally listed 

species currently on or near Pictured 

Rocks National Lakeshore are the piping 

plover, gray wolf, bald eagle, and 

Pitcher’s thistle. 

NPS Response: As indicated on page 

96 of the Environmental Consequences 

section of the EA, Section 7 consultation 

would be initiated if the NPS 

determined that actions in the preferred 

alternative would be ‘‘likely to 

adversely affect’’ one or more of the 

federally listed threatened or 

endangered species identified in the 

lakeshore. The modified preferred 

61902 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

alternative (alternative B) will have no 

effect on piping plover, Pitcher’s thistle, 

gray wolf, or Lake Huron tansy, and is 

not likely to adversely affect the 

common loon, bald eagle or the 

peregrine falcon. The errata has been 

updated to reflect a ‘‘no effect’’

determination for the gray wolf. The 

USFWS concurred with this 

determination after submitting this 

comment. 

33. One commenter stated that the EA 

inadequately describes the impacts from 

PWC to osprey and bald eagle, and 

underestimates the impacts to the 

peregrine falcon and common loon, 

along with other species. 

NPS Response: The NPS concurs that 

some studies have shown that PWC 

operation in proximity to nesting osprey 

and other wildlife species can have 

adverse affects. Studies also indicate 

that the timing, duration, and character 

(aggressiveness of PWC operation) of 

these interactions are important factors 

in determining the effect. As discussed 

in the EA (pages 20 and 96–101), state 

regulations require that PWC operating 

within 200 feet of the shore must be 

running perpendicular to the shore at 

flat-wake speeds. This state regulation 

minimizes the potential for adverse 

affects on shoreline wildlife at the 

lakeshore. 

34. The U.S. Fish and Wildlife Service 

stated that piping plovers currently do 

not nest on Pictured Rocks National 

Lakeshore, but at nearby at Grand 

Marais. Nesting occurred there in 2002 

and has occurred there annually for 

more than 10 years. As the EA indicates, 

there is the potential for piping plover 

to use the Pictured Rocks National 

Lakeshore beach, at least for foraging, if 

not nesting. The piping plover breeding 

population has increased in recent 

years. As the population expands, 

piping plover may be found in 

previously unexpected areas. The 

USFWS recommended annual efforts to 

survey Pictured Rocks National 

Lakeshore for the bird. The USFWS also 

recommended that when the park 

requests Section 7 consultation, it refer 

to the appropriate information in the EA 

that supports the conclusion that 

interactions between piping plovers and 

PWC would be extremely limited. 

NPS Response: Pictured Rocks 

National Lakeshore staff will continue 

to monitor and document piping plover 

activities within the lakeshore. PWC 

would not be allowed in the Grand 

Sable segment, where potential piping 

plover habitat exists. If plovers ever 

become established in the western end 

of the lakeshore, then mitigating actions 

could be required to minimize any 

adverse effect from PWC use. The 

modified preferred alternative will 

result in ‘‘no effect’’ on future 

populations of piping plover that may 

inhabit the lakeshore. 

Comments Regarding Shoreline/ 

Submerged Aquatic Vegetation 

35. One commenter stated that since 

PWC lack an exposed propeller, they are 

much more environmentally friendly in 

shallow water environments. Further, 

Michigan law prohibits PWC from 

operating in less than two feet of water 

and in areas where aquatic rooted 

vegetation is visible in sensitive wetland 

areas. 

NPS Response: The NPS recognizes 

that scientists do not agree on the 

potential for impacts to aquatic 

vegetation from personal watercraft. 

However, because of their design, 

personal watercraft can potentially 

operate in shallower water than 

conventional outboard motorboats, and 

it is not possible to know if all operators 

fully adhere to manufacturer’s 

recommendations. As described in the 

EA (pages 103–104), impacts to 

sensitive shoreline vegetation are 

expected to be negligible for all 

alternatives and both years evaluated 

(2002 and 2012). 

Comments Associated With Visitor 

Experience 

36. One commenter stated that the EA 

failed to adequately assess the safety 

threat posed to park visitors by PWC 

use, and failed to analyze existing 

accident data available from the U.S. 

Coast Guard. 

NPS Response: Incidents involving 

watercraft of all types, including 

personal watercraft, are reported to and 

logged by National Park Service staff. A 

very small proportion of incidents on 

the lake are estimated to go unreported. 

The accident data for the three-year 

period of 1999 through 2001 displays a 

consistent pattern and differs from 

nationally reported results for all 

watercraft. In the ‘‘Visitor Conflicts and 

Visitor Safety’’ section of the ‘‘Affected 

Environment’’ chapter of the EA, it is 

reported that personal watercraft 

represent 26 percent of the watercraft on 

the lake but did not exceed 18 percent 

of all watercraft accidents over the 

three-year time period. While personal 

injury rates for personal watercraft were 

somewhat higher, they did not exceed 

24 percent of all watercraft personal 

injuries—approximately equal to their 

representation in the population of all 

watercraft. 

37. One commenter stated that 

keeping PWC 200 feet from shore is not 

sufficient to prevent serious loss to 

those seeking solitude and/or a natural 

experience. What happens if the number 

of PWC users increases over the years to 

a level that is intolerable? 

NPS Response: The best available data 

was used to determine existing and 

future PWC use in the lakeshore, and 

was based on a visitor survey, 

discussion with park staff, and 

discussion with local launch site 

operators in Grand Marais and 

Munising. The analysis indicates that 

PWC use would have minor adverse 

impacts to backcountry visitors who 

seek solitude within the lakeshore. The 

selection of the modified preferred 

alternative (alternative B) would result 

in negligible to moderate beneficial 

impacts on soundscapes and visitor 

experience for non-PWC users. 

38. One commenter indicated that the 

EA fails to include the numbers of 

comments received about PWC noise 

and offers no comparison of those 

comments with others regarding noise 

produced by other recreational pursuits, 

such as tour boats. Were the noise 

comments regarding PWC use any more 

positive or negative than those related to 

other lakeshore user groups? 

NPS Response: The comments 

received for the GMP regarding noise 

disturbance from PWC, motorboats, and 

other recreational users have not been 

quantified. However, the summer visitor 

survey conducted in 2000 provides 

specific data about noise issues within 

the lakeshore. Over 80% of the survey 

respondents, including backcountry 

visitors, identified PWC disturbance as 

‘‘no problem.’’ Approximately 8% of the 

228 respondents identified PWC 

disturbances as a ‘‘serious or very 

serious’’ problem. Likewise, 

approximately 6% of those surveyed 

identified motorized boats on Lake 

Superior ‘‘disturbing my backcountry 

experience’’ as a ‘‘serious or very 

serious’’ problem; 4% indicated that too 

many commercial tour boats on Lake 

Superior shoreline as a ‘‘serious or very 

serious problem’’; and 1% indicated 

noise from airplanes as a ‘‘serious or 

very serious problem.’’ Overall, only 

2.6% of those surveyed indicated that 

too much noise on Lake Superior 

shoreline was a ‘‘serious or very serious 

problem.’’

39. One commenter stated that the 

1998 Boating Accident Report Database 

(BARD) estimates reported in the EA are 

outdated, and that more recent BARD 

data shows that, despite the increasing 

number of PWC in use, the number of 

reported PWC-associated accidents has 

been declining every year since 1997. 

NPS Response: Incidents involving 

watercraft of all types, including 

personal watercraft, are reported to and 

logged by National Park Service staff. A 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61903 

very small proportion of incidents on 

the lake are estimated to go unreported. 

The accident data for the three-year 

period of 1999 through 2001 displays a 

consistent pattern and differs from 

nationally reported results for all 

watercraft. In the ‘‘Visitor Conflicts and 

Visitor Safety’’ section of the ‘‘Affected 

Environment’’ chapter of the EA, it is 

reported that personal watercraft 

represented 26 percent of the watercraft 

on the lake but did not exceed 18 

percent of all watercraft accidents over 

the three-year time period. While 

personal injury rates for personal 

watercraft were somewhat higher, they 

did not exceed 24 percent of all 

watercraft personal injuries—

approximately equal to their 

representation in the population of all 

watercraft. 

40. One commenter stated that, 

according to Coast Guard statistics, PWC 

represent roughly 10 percent of all 

boats, yet are involved in approximately 

30 percent of all boating accidents. In 

addition, nearly 80 percent of PWC 

accidents are the result of a collision 

with objects such as another boat, 

swimmer, or dock. 

NPS Response: The concern about 

PWC operation and safety is discussed 

in the EA, which provides similar 

national statistics (page 16) and 

statistics from the park itself (page 51). 

Some of the provisions of the preferred 

alternative, such as increasing the 

number of areas with flat-wake 

restrictions, were included to provide a 

higher level of safe PWC operations and 

to lessen potential conflicts with other 

park users. 

Comments Associated With Visitor 

Conflicts and Safety 

41. One commenter stated that the 

accident data used in the analysis was 

outdated and incorrect because PWC 

accidents are reported more often than 

other boating accidents. 

NPS Response: We disagree. Incidents 

involving watercraft of all types, 

including personal watercraft, are 

reported to and logged by National Park 

Service staff. A very small proportion of 

watercraft accidents at Fire Island 

National Seashore are estimated to go 

unreported. 

42. One commenter suggested that all 

boaters should abide by the restrictions, 

and that there is no justification for 

imposing any additional restrictions or 

requirements on PWC operators based 

on safety considerations. 

NPS Response: The proposed 

alternatives did not impose additional 

restrictions or requirements on PWC 

based solely on safety considerations. 

The final rule, implementing modified 

preferred alternative (alternative B), will 

discontinue PWC use east of Miners 

Beach. The selection of modified 

alternative B is based on the evaluation 

of all issues analyzed in the EA and the 

public comments received regarding the 

proposed action. 

43. Several commenters stated that 

the NPS analysis downplayed the threat 

PWC pose to the visiting public, 

specifically regarding PWC fire hazards. 

NPS Response: According to the 

National Marine Manufacturers 

Association, PWC manufacturers have 

sold roughly 1.2 million watercraft 

during the last ten years. Out of 1.2 

million PWC sold, the U.S. Coast Guard 

received only 90 reports of fires/ 

explosions in the years from 1995–1999. 

This is less than 1% of PWC boats 

reporting problems associated with 

fires/explosions. As far as the recall 

campaigns conducted by Kawasaki and 

Bombardier, the problems that were 

associated with fuel tanks were fixed. 

Kawasaki conducted a recall for 

potentially defective fuel filler necks 

and fuel tank outlet gaskets on 23,579 

models from the years 1989 and 1990. 

The fuel tank problems were eliminated 

in Kawasaki’s newer models, and the 

1989 and 1990 models are most likely 

not in use anymore, since life 

expectancy of a PWC is only five to 

seven years, according to PWIA. 

Bombardier also recalled its 1993, 1994, 

and 1995 models to reassess possible 

fuel tank design flaws. However, the 

number of fuel tanks that had to be 

recalled was a very small percent of the 

1993, 1994, and 1995 fleets because fuel 

tank sales only amounted to 2.16% of 

the total fleet during this period. The 

replacement fuel tanks differed from 

those installed in the watercraft subject 

to the recall in that the replacement 

tanks had revised filler neck radiuses, 

and the installation procedure now also 

requires revised torque specifications 

and the fuel system must successfully 

complete a pressure leak test. 

Bombardier found that the major factor 

contributing to PWC fires/explosions 

was over-torquing of the gear clamp. 

Bombardier was legally required by the 

U.S. Coast Guard to fix 9.72% of the 

recalled models. Out of 125,349 recalls, 

the company repaired 48,370 units, 

which was approximately 38% of the 

total recall, far exceeding their legal 

obligation to repair units with potential 

problems. 

Further fuel tank and engine problems 

that could be associated with PWC fires 

have been reduced significantly since 

the National Marine Manufacturers 

Association (NMMA) set requirements 

for meeting manufacturing regulations 

established by the U.S. Coast Guard. 

Many companies even choose to 

participate in the more stringent 

Certification Program administered by 

the NMMA. The NMMA verifies boat 

models annually, or whenever a new 

product is put on the market, to 

determine that they satisfy not only the 

U.S. Coast Guard Regulations, but also 

the more rigorous standards based on 

those established by the American Boat 

and Yacht Council. 

Comments Associated With Cultural 

Resources 

44. One commenter suggested that the 

NPS consider requiring permits or other 

approval for ceremonial activities, so 

that motorized boaters can be given 

adequate advance notice of any specific 

time/location restrictions on vessel 

usage. This will better enable PWC users 

and other boaters to respect these 

observances, reduce the potential for 

user conflicts, and assist in enforcement 

efforts. 

NPS Response: Historically, tribal 

groups pursuing traditional activities in 

the park have been very small and 

permits have not been issued. In 

addition, past observances have 

occurred in seasons of the year when 

PWC use is light or non-existent. If and 

when the ceremonial activities become 

larger in scope or number, the park will 

initiate more formal permitting. 

Comments Regarding Socioeconomics 

45. One commenter stated that there 

is no discussion of the economic costs 

of continued PWC operation upon the 

lakeshore’s wildlife, public safety, and 

visitor use. In addition, it is 

questionable to assume that a PWC ban 

will automatically result in a decrease 

in park visitation. The commenter states 

that the EA also incorrectly assumes 

that a PWC ban will reduce the 

consumer surplus of other motorized 

boaters. 

NPS Response: The socioeconomic 

study did not address the future 

potential costs of environmental 

damage. The study examined the 

potential effect that the ban would have 

on the local economy, and the potential 

effects on socio-economically 

disadvantaged groups. The comment is 

correct in stating that the same level of 

analysis was not given to the future 

environmental costs. 

The number of recreational visits at 

Pictured Rocks National Lakeshore in 

calendar year 2000 was 424,533, which 

is a 4.6% reduction from 1999. The 

most recent available visitation data was 

used at the time the EA was written. A 

variety of factors influence visitor use 

numbers at national parks; therefore, it 

is not possible to precisely ascertain 

61904 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

specific reasons for increases or 

decreases in visitation. 

46. One commenter stated that the 

analysis of socioeconomic effects of the 

different alternatives failed to consider 

the possibility that the no-action 

alternative could have positive 

economic effects upon those renting 

kayaks or providing guiding services. 

NPS Response: The evaluation 

concentrated on the effects of PWC 

management on the local economy. No 

data is available indicating that the 

presence of PWC has decreased the 

lakeshore visitation by kayakers or other 

visitors. Thus, a conclusion cannot be 

made that banning PWC would increase 

use by other groups. According to the 

visitor survey (summer 2000), most 

visitors identified issues associated with 

PWC operation within the lakeshore as 

‘‘no problem or slight problem.’’ This 

indicates that banning PWC would not 

have a substantial effect on visitor 

experience or visitor satisfaction. The 

NPS concurs that a ban on PWC would 

allow local businesses to target their 

marketing and services to an audience 

that is sensitive to PWC use. 

Comments Related to Enforcement 

47. Several commenters stated that 

additional staff would be required to 

adequately address the increased 

enforcement needed under the final 

rule. 

NPS Response: The NPS used the best 

available data to evaluate potential 

conflicts between PWC and other park 

visitors. The NPS concurs that it is 

likely that some violations are not 

reported, particularly those that may be 

considered minor infractions by the 

general public. The evaluation in the EA 

assumed that some violations would 

occur and noted that staffing was 

insufficient to properly police existing 

boating activities, with or without PWC 

use in the lakeshore. 

The analysis indicated that increased 

staffing would be necessary to more 

adequately monitor watercraft on Lake 

Superior. The NPS believes that 

operation of PWC in the lakeshore will 

not require more staff than that required 

for increased monitoring of all 

watercraft because (1) the number of 

PWC operating within the lakeshore is 

small in comparison to the number of 

other motorboats and watercraft, (2) the 

location of PWC operation is separated 

from most other visitors (excluding 

motorboats) and (3) the increased 

patrols necessary to monitor all boating 

traffic will increase the observed 

presence of policing such that all 

infractions will likely decrease. 

Changes to the Final Rule 

Based on the preceding comments 

and responses, the NPS has made no 

substantive changes to the proposed 

rule language with regard to PWC 

operations. 

Compliance With Other Laws 

Regulatory Planning and Review 

(Executive Order 12866) 

This document is not a significant 

rule and has not been reviewed by the 

Office of Management and Budget under 

Executive Order 12866. 

(1) This rule will not have an effect of 

$100 million or more on the economy. 

It will not adversely affect in a material 

way the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities. 

The National Park Service has 

completed the report ‘‘Economic 

Analysis of Personal Watercraft 

Regulations in Pictured Rocks National 

Lakeshore’’ (RTI, International, 

November 2004). 

(2) This rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. Actions taken under 

this rule will not interfere with other 

agencies or local government plans, 

policies or controls. This rule is an 

agency specific rule. 

(3) This rule does not alter the 

budgetary effects of entitlements, grants, 

user fees, or loan programs or the rights 

or obligations of their recipients. This 

rule will have no effects on 

entitlements, grants, user fees, or loan 

programs or the rights or obligations of 

their recipients. No grants or other 

forms of monetary supplements are 

involved. 

(4) This rule does not raise novel legal 

or policy issues. This rule is one of the 

special regulations being issued for 

managing PWC use in National Park 

Units. The National Park Service 

published general regulations (36 CFR 

3.24) in March 2000, requiring 

individual park areas to adopt special 

regulations to authorize PWC use. The 

implementation of the requirement of 

the general regulation continues to 

generate interest and discussion from 

the public concerning the overall effect 

of authorizing PWC use and National 

Park Service policy and park 

management. 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rulemaking will not 

have a significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). This certification is 

based on a report entitled report 

‘‘Economic Analysis of Personal 

Watercraft Regulations in Pictured 

Rocks National Lakeshore’’ (RTI, 

International, November 2004), copies 

of which are available from the address 

in the ADDRESSES section. 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This final rule: 

a. Does not have an annual effect on 

the economy of $100 million or more. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local or tribal 

governments or the private sector. This 

rule is an agency specific rule and does 

not impose any other requirements on 

other agencies, governments, or the 

private sector. 

Takings (Executive Order 12630) 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. A taking 

implication assessment is not required. 

No taking of personal property will 

occur as a result of this rule. 

Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have sufficient 

Federalism implications to warrant the 

preparation of a Federalism Assessment. 

This final rule only affects use of NPS 

administered lands and waters. It has no 

outside effects on other areas by 

allowing PWC use in specific areas of 

the park. 

Civil Justice Reform (Executive Order 

12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61905 

Paperwork Reduction Act 

This regulation does not require an 

information collection from 10 or more 

parties and a submission under the 

Paperwork Reduction Act is not 

required. An OMB Form 83–I is not 

required. 

National Environmental Policy Act 

As a companion document to the 

NPRM, NPS issued the Personal 

Watercraft Use Environmental 

Assessment for Pictured Rocks National 

Lakeshore and subsequent errata sheet. 

The environmental assessment was 

available for public review and 

comment for the period August 1 

through November 15, 2004. A Finding 

of No Significant Impact (FONSI) was 

signed on September 9, 2005. To request 

a copy of these documents contact 

Superintendent, Pictured Rocks 

National Lakeshore, N8391 Sand Point 

Road, P.O. Box 40, Munising, MI 49862–

0040. A copy of the Environmental 

Assessment, errata sheet, and FONSI 

may also be found at http:// 

www.nps.gov/piro/pwc. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government to Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951) and 512 

DM 2, we have evaluated potential 

effects on Federally recognized Indian 

tribes and have determined that there 

are no potential effects. 

Administrative Procedure Act 

This final rule is effective upon 

publication in the Federal Register. In 

accordance with the Administrative 

Procedure Act, specifically, 5 U.S.C. 

553(d)(1), this rule, 36 CFR 7.32(d), is 

exempt from the requirement of 

publication of a substantive rule not less 

than 30 days before its effective date. 

As discussed in this preamble, the 

final rule is a part 7 special regulation 

for Pictured Rocks National Lakeshore 

that relieves the restrictions imposed by 

the general regulation, 36 CFR 3.24. The 

general regulation, 36 CFR 3.24, 

prohibits the use of PWC in units of the 

national park system unless an 

individual park area has designated the 

use of PWC by adopting a part 7 special 

regulation. The proposed rule was 

published in the Federal Register (69 

FR 51788) on August 23, 2004, with a 

60-day period for notice and comment 

consistent with the requirements of 5 

U.S.C. 553(b). The Administrative 

Procedure Act, pursuant to the 

exception in paragraph (d)(1), waives 

the section 553(d) 30-day waiting period 

when the published rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction.’’ In this rule the NPS is 

authorizing the use of PWCs, which is 

otherwise prohibited by 36 CFR 3.24. As 

a result, the 30-day waiting period 

before the effective date does not apply 

to Pictured Rocks National Lakeshore 

final rule. 

List of Subjects in 36 CFR Part 7 

National Parks, Reporting and 

recordkeeping requirements. 

■ For the reasons stated in the preamble, 

the National Park Service amends 36 

CFR part 7 as follows: 

PART 7—SPECIAL REGULATIONS, 

AREAS OF THE NATIONAL PARK 

SYSTEM 

■ 1. The authority for part 7 continues 

to read as follows: 

Authority: 16 U.S.C. 1, 3, 9a, 460(q), 

462(k); Sec. 7.96 also issued under DC Code 

8–137 (1981) and DC Code 40–721 (1981). 

■ 2. Amend § 7.32 by adding paragraph 

(d) to read as follows: 

§ 7.32 Pictured Rocks National Lakeshore. 

* * * * * 

(d) Personal Watercraft (PWC). (1) 

PWC are allowed on the waters within 

Pictured Rocks National Lakeshore, 

from the western boundary of the 

lakeshore to the east end of Miners 

Beach. 

(2) PWC may be launched only from 

a designated launch site at Sand Point. 

(3) PWC users may beach their craft 

only at Sand Point Beach and Miners 

Beach. 

(4) 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: October 19, 2005. 

Paul Hoffman, 

Deputy Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 05–21426 Filed 10–26–05; 8:45 am] 

BILLING CODE 4312–52–U 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 202 

[Docket No. RM 2005–9] 

Preregistration of Certain Unpublished 

Copyright Claims 

AGENCY: Library of Congress, Copyright 

Office. 

ACTION: Interim regulation. 

SUMMARY: Pursuant to the Artists’ Rights 

and Theft Prevention Act of 2005, the 

Copyright Office is publishing an 

interim regulation governing the 

preregistration of unpublished works 

that are being prepared for commercial 

distribution in classes of works that the 

Register of Copyrights has determined 

have had a history of pre–release 

infringement. 

EFFECTIVE DATE: November 15, 2005. 

FOR FURTHER INFORMATION CONTACT: 

David O. Carson, General Counsel, or 

Charlotte Douglass, Principal Legal 

Advisor, P.O. Box 70400, Washington, 

DC 20024–0400, Telephone: (202) 707–

8380. Telefax: (202) 707–8366. 

SUPPLEMENTARY INFORMATION: On April 

27, 2005, President Bush signed the 

Family Entertainment and Copyright 

Act (‘‘FECA’’). Pub. L. No. 109–9, 119 

Stat. 218. Title I of FECA is the Artists’

Rights and Theft Prevention Act of 

2005, or ‘‘ART Act,’’ which among other 

things addresses copyright infringement 

of works committed prior to their 

authorized commercial distribution, or 

pre–release infringement. Section 104 

directs the Copyright Office to conduct 

a rulemaking proceeding to establish a 

procedure for preregistration of 

unpublished works that are being 

prepared for commercial distribution. 

Specifically, Section 104 provides 

that ‘‘Not later than 180 days after the 

date of enactment of this subsection, the 

Register of Copyrights shall issue 

regulations to establish procedures for 

preregistration of a work that is being 

prepared for commercial distribution 

and has not been published.’’ 17 U.S. C. 

408(f)(1). Preregistration is a new 

procedure in the Copyright Office that 

permits such an action to serve as a 

place–holder for limited purposes –

notably where a copyright owner needs 

to sue for infringement while a work is 

still being prepared for commercial 

release. 

Congress also assigned the Register to 

determine which works are eligible for 

preregistration by directing that ‘‘the 

regulations established under paragraph 

(1) shall permit preregistration for any 

work that is in a class of works that the 

Register determines has had a history of 

infringement prior to authorized 

commercial distribution.’’ 17 U.S.C. 

408(f)(2). Thus, falling in one or more of 

the classes so determined by the 

Register is a precondition to eligibility 

for preregistration, and applications for 

works that do not appear to fall within 

these classes should not be entertained. 

On July 22, 2005, the Register of 

Copyrights initiated this rulemaking