ELR Citation: ELR 20681
No(s). s. 93-5336, -5348 (D.C. Cir. Mar 3, 1995)

The court holds that the National Oceanic and Atmospheric Administration's (NOAA's) regulation limiting the operation of motorized personal watercraft, or "thrill craft," in the Monterey Bay National Marine Sanctuary to four designated zones and access routes is not arbitrary and capricious simply because it reaches thrill craft without regulating other vessels. The court first holds that NOAA adequately responded plaintiff association's to comments on the regulation. NOAA need not have responded to the association's comments, because although NOAA's 1990 notice of proposed rulemaking did not specifically propose to regulate personal watercraft, petitioners' submission of comments nearly two years after the comment period closed is inexcusable. Moreover, the 1990 notice sufficiently alerted petitioners to the possibility that NOAA would regulate personal watercraft. The court rejects petitioners' argument that it did not have a chance to comment on a study that was completed after the comment period closed, the results of which NOAA included in the final rule, because the study was not critical to NOAA's decision. Moreover, the agency may develop additional information in response to public comments and rely on that information without starting the comment process anew unless prejudice is shown. Petitioners have not demonstrated any prejudice. Finally, the court holds that NOAA's decision to regulate personal watercraft without regulating other vessels is not arbitrary. The record amply supports NOAA's judgment that restricting thrill craft was necessary and reasonable, and the agency need not refrain from addressing the thrill craft problem while it decides how to address problems that other vessel types cause.

Counsel for Appellees
Randall M. Stone
Paul, Hastings, Janofsky & Walker
1299 Pennsylvania Ave. NW, 10th Fl., Washington DC 20004
(202) 508-9500

Counsel for Appellants
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: BUCKLEY, RANDOLPH, and TATEL, Circuit Judges.