[Federal Register: August 23, 2004 (Volume 69, Number 162)]
[Proposed Rules]
[Page 51788-51795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au04-13]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC94
Fire Island National Seashore, Personal Watercraft Use
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service (NPS) is proposing to designate
areas where personal watercraft (PWC) may
[[Page 51789]]
be used in Fire Island National Seashore, New York. This rule
implements the provisions of the NPS general regulations authorizing
park areas to allow the use of PWC by promulgating a special
regulation. The NPS Management Policies 2001 require individual parks
to determine whether PWC use is appropriate for a specific park area
based on an evaluation of that area's enabling legislation, resources
and values, other visitor uses, and overall management objectives.
DATES: Comments must be received by October 22, 2004.
ADDRESSES: Comments on the proposed rule should be sent to
Superintendent, Fire Island National Seashore, 120 Laurel Street,
Patchogue, NY 11772. E-mail: michael_bilecki@nps.gov. Fax: (631) 289-
4810.
If you comment by e-mail, please include ``PWC rule'' in the
subject line and your name and return address in the body of your
Internet message. Also, you may hand deliver comments to
Superintendent, Fire Island National Seashore, 120 Laurel Street,
Patchogue, New York.
For additional information see ``Public Participation'' under
SUPPLEMENTARY INFORMATION below.
FOR FURTHER INFORMATION CONTACT: Kym Hall, Special Assistant, National
Park Service, 1849 C Street, NW., Room 3145, Washington, DC 20240.
Phone: (202) 208-4206. E-mail: Kym_Hall@nps.gov.
SUPPLEMENTARY INFORMATION:
Background
Additional Alternatives
The information contained in this proposed rule supports
implementation of the modified preferred alternative for Fire Island
National Seashore in the Environmental Assessment (EA) published in
September, 2002, and the errata issued March, 2004. The changes to the
environmental assessment in the errata were made to modify the
preferred alternative and its analysis, to address public comments on
the EA, and to clarify the text. The public should be aware that three
other alternatives including a no-PWC alternative were presented in the
EA. Those alternatives should also be reviewed and considered when
making comments on this proposed rule.
Personal Watercraft Regulation
On March 21, 2000, the National Park Service published a regulation
on the management of PWC use within all units of the national park
system (65 FR 15077). This regulation prohibits PWC use in all national
park units unless the NPS determines that this type of water-based
recreational activity is appropriate for the specific park unit based
on the legislation establishing that park, the park's resources and
values, other visitor uses of the area, and overall management
objectives. The regulation banned PWC use in all park units effective
April 20, 2000, except 21 parks, lakeshores, seashores, and recreation
areas. The regulation established a 2-year grace period following the
final rule publication to provide these 21 park units time to consider
whether PWC use should be permitted to continue.
Description of Fire Island National Seashore
Fire Island National Seashore is a vital part of America's national
system of parks, monuments, battlefields, recreation areas, and other
natural and cultural resources. Located on a 32-mile long barrier
island off the south shore of Long Island, New York, Fire Island
National Seashore encompasses approximately 19,500 acres--many of which
are bay and ocean waters--available to more than 4 million visitors
each year. The National Seashore is interspersed with 17 local private
communities, the William Floyd Estate, a maritime forest known as the
Sunken Forest, and the Otis Pike Wilderness Area--the only Federal
wilderness area in New York State. Together, these components comprise
a seashore ecosystem of wildlife, private communities, and outdoor
recreational activities, such as the use of personal watercraft (PWC).
The Fire Island National Seashore extends from the easterly
boundary of the main unit of Robert Moses State Park eastward to
Moriches Inlet and includes Fire Island proper and the surrounding
islands and marshlands in the Great South Bay, Bellport Bay, and
Moriches Bay adjacent to Fire Island. Included in the boundaries are
Sexton Island, West Fire and East Fire Islands, Hollins Island, Ridge
Island, Pelican Island, Pattersquash Island, and Reeves Island and
other small and adjacent islands, marshlands, and wetlands that lend
themselves to contiguity and reasonable administration within the
National Seashore and the waters surrounding the National Seashore to
distances of 1,000 feet in the Atlantic Ocean and up to 4,000 feet in
Great South Bay and Moriches Bay. The NPS mainland terminal and
headquarters are on the Patchogue River within Suffolk County, New
York.
Fire Island National Seashore is fragmented by public and private
beaches. Fire Island National Seashore includes the Otis Pike
Wilderness Area established in 1981, the Sunken Forest, Watch Hill,
Sailors Haven, the Fire Island Lighthouse (placed on the National
Register of Historic Places in 1981), and the William Floyd Estate
(placed on the National Register of Historic Places in 1980).
The resources and values that define the natural environment of
Fire Island National Seashore include a diverse assemblage of wildlife,
vegetation communities, water resources, geological features, and
physical processes reflecting the complexity of the land/sea interface
along the North Atlantic coast. Wildlife resources are a myriad of
aquatic and terrestrial species inhabiting estuarine, dune and beach
habitats. The indigenous plant communities reflect the adaptive
extremes necessary for survival on a barrier island, where exposure to
salt spray, lack of freshwater, and shifting sands create a harsh and
dynamic environment.
The aquatic habitats of Fire Island and the adjacent coastal bays
are central to the significance of the National Seashore. The inshore
waters are part of a network of coastal lagoons that parallel the south
shore of the Long Island coast from Breezy Point, off the tip of
southern Manhattan, over 100 miles east to South Hampton. Fire Island
lies in the middle of this complex system. The bays are uniformly
shallow with an average depth of 1.2 meters (4 feet) and are generally
characterized as poorly flushing due to restricted inlet tidal
exchange.
From a regional perspective, Fire Island National Seashore includes
the highest percentage of remaining undeveloped barrier islands of the
south shore of the Long Island barrier island system. Extensive salt
marshes, inter-tidal flats, and the broad shallow margins of the
coastal bays within and adjacent to Fire Island are key components of
an estuarine system crucial to the maintenance of regional biological
diversity and ecosystem health.
Fire Island National Seashore provides important habitat for a
number of federally listed threatened and endangered species, including
but not limited to the peregrine falcon, roseate tern, loggerhead,
Kemp's ridley, leatherback, hawksbill, and green sea turtles, bald
eagle, piping plover, and sea beach amaranth. Of these species, the
National Seashore provides critical habitat for piping plover and sea
beach amaranth and is a focal point for North Atlantic conservation and
restoration efforts. The eastern 8 miles of the park provide the most
favorable conditions for piping plover breeding activity and
[[Page 51790]]
support a majority of the local population of the species.
In addition to the piping plover, the National Seashore provides
important habitat for a multitude of bird species throughout the year.
The island is renowned for the autumn migration of hawks and abundance
of wintering waterfowl and is of critical importance as wintering,
staging, and breeding habitat for myriad of bird species. Shorebirds,
colonial waterbirds, neotropical migratory songbirds, and a variety of
wading birds intensively utilize park habitats, and in general, occur
in greater abundance and diversity than on the adjacent mainland.
The coastal waters within Fire Island National Seashore are
regularly used by a variety of marine mammals on a seasonal or
transitory basis. More than fifteen species have been documented in the
National Seashore, all of which are protected under the Marine Mammal
Protection Act of 1972. The most commonly observed species are seals,
harbor porpoise, and bottlenose dolphin, generally occurring in ocean
nearshore waters. Seals are most commonly observed during the fall and
winter months, while bottlenose dolphins are present largely during the
summer.
Oceanic and estuarine waters and their associated animal and plant
life (biota) also play a dominant role in recreational use of the
National Seashore. Over 90 percent of visits to the park involve the
use of aquatic habitats. The primary recreational activities include
swimming, walking, sightseeing, wildlife photography and observation,
picnicking, and saltwater fishing.
Purpose of Fire Island National Seashore
Fire Island National Seashore was authorized on September 11, 1964
(Public Law 88-587) ``for the purpose of conserving and preserving for
the use of future generations certain relatively unspoiled and
undeveloped beaches, dunes, and other natural features within Suffolk
County, New York, which possess high values to the Nation as examples
of unspoiled areas of great natural beauty * * * to establish an area
to be known as the `Fire Island National Seashore.' ''
The purposes of Fire Island National Seashore, as stated in its
Strategic Plan (available at http://www.nps.gov/fiis/stratplanFY01-05.htm
), are as follows:
Preserve the natural and cultural resources within
administrative boundaries.
Permit hunting, fishing, and shellfishing within
boundaries in accordance with U.S. and New York State laws.
Preserve the Sunken Forest tract from bay to ocean without
developing roads therein.
Preserve the main dwelling, furnishings, grounds, and
outbuildings of the William Floyd Estate, home of the Floyd family for
eight generations.
Administer mainland ferry terminal and headquarters sites
not to exceed 12 acres on the Patchogue River.
Preserve the Otis Pike Fire Island High Dunes Wilderness.
Provide for public access, use, and enjoyment.
Work with the communities within the park to mutually
achieve the goals of both the park and the residents.
Authority and Jurisdiction
The National Park Service is granted broad authority under 16
U.S.C. 1 et seq., the NPS' ``Organic Act,'' to regulate the use of the
Federal areas known as national parks. In addition, the Organic Act (16
U.S.C. 3) authorizes 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
* * *''
The 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 Fire Island National Seashore
PWC use at Fire Island National Seashore is a relatively recent
phenomenon, paralleling the national trend of increasing popularity and
sales of PWC during the 1980s and 1990s.
Personal watercraft use began within the Fire Island National
Seashore boundaries in the Great South Bay over 20 years ago, as soon
as they were available and on the market. PWC users can access Fire
Island National Seashore in a variety of ways; however, there are no
public boat ramps or public roads located within the National Seashore
boundaries. PWC users access the National Seashore via marinas located
in the private communities and by landing on and launching from
undeveloped beaches or larger vessels.
A variety of sources within the region provided estimates of
typical PWC use in the Great South Bay and Fire Island NationalSeashore
area. Staff from the Suffolk County Department of Parks and the Police
Marine Bureau, local municipalities, local dealerships, and local
marinas provided estimates of PWC use ranging from 5 to 25% of all
watercraft on the water at any given time of the day during peak
season. Although no annual counts are conducted of visitors accessing
the park by boat or personal watercraft, the National Park Service
conducted an informal survey on Saturdays and Sundays during the month
of July 1999. During this survey, NPS staff counted the number of
boats, including PWC, that were present. Based on the 1999 survey, the
estimated number of boats during that time period was between 200 and
300 watercraft. Approximately 20% of the total, or between 40 and 60
watercraft, were PWC. The waterways on the bayside of Fire Island are
often congested, with a variety of recreational and fishing boats
accessing the waters of the National Seashore from the Great South Bay.
PWC use is typically localized within Fire Island National
Seashore, occurring in areas near the private communities, ferryways
and navigation channels, and in areas near boat ramps. Park staff
indicate that the heaviest usage and highest general visitation area
for watercraft of any type is the western end of the island. PWC use is
also prevalent along the eastern boundary in Moriches Bay near Smith
Point County Park.
As previously stated, on April 20, 2000, the NPS adopted a final
rule for managing PWC use in areas of the National Park System. The
rule was implemented to ensure a prudent approach to PWC management
that would potentially allow their use, yet protect park resources,
sensitive natural areas, plants and wildlife, and reduce conflicts
between park visitors. The final rule prohibited PWC use in all
National Park System areas unless the NPS determined that this type of
water-based activity was appropriate for a
[[Page 51791]]
specific park based upon the legislation establishing the area, the
park's resources and values, other visitor uses of the area, and
overall management objectives.
Prior to April 22, 2002, PWC use was allowed throughout FireIsland
National Seashore. On April 22, 2002 all of the waters within the
National Seashore were closed to PWC use consistent with the 2000 NPS
PWC rule (36 CFR 3.24).
Resource Protection and Public Use Issues
Fire Island National Seashore Environmental Assessment
In September 2002 NPS posted on its Web site(http://ww.nps.gov/fiis/
) the Personal Watercraft UseEnvironmental Assessment for Fire
Island National Seashore. The purpose of the environmental assessment
was to evaluate a range of alternatives and strategies for the
management of PWC use at Fire Island National Seashore to ensure the
protection of park resources and values while offering recreational
opportunities as provided for in the National Seashore's enabling
legislation, purpose, mission, and goals. In March 2004 an errata was
issued. The changes to the environmental assessment were made to modify
the preferred alternative and its analysis, to address public comments,
and to clarify the text.
The environmental assessment evaluated four alternatives concerning
the use of PWC at Fire Island National Seashore. The alternatives
considered included three alternatives to continue PWC use under
certain conditions: Alternative A would establish, through regulation,
the PWC policies that existed prior to 2000 when PWC use was permitted
throughout Fire Island NationalSeashore; alternative B would limit PWC
use to areas adjacent to beach communities; and modified alternative C
would continue to allow PWC access to the national seashore with
additional management and geographic restrictions. The additional
geographic restrictions west of Sunken Forest would include a 1,000
foot buffer around all shorelines, with access to beach communities
only through established access channels and ferryways. East of the
western boundary of Sunken Forest PWC use would be forbidden in
Seashore waters, except for access to beach communities only through
established access channels and ferryways. In addition, a no-action
alternative was considered that would discontinue all PWC use within
the National Seashore. The four alternatives were evaluated with
respect to PWC impacts on water quality, air quality, soundscapes,
wildlife, wildlife habitat, shoreline vegetation, visitor conflicts,
and visitor safety.
Based on the analysis NPS determined that modified alternative C is
the environmentally preferred alternative. (For the remainder of this
document ``alternative C'' refers to modified alternative C.)
Alternative C best fulfills NPS responsibilities as trustee of Fire
Island National Seashore's sensitive habitat; ensuring safe, healthful,
productive, and aesthetically and culturally pleasing surroundings; and
attaining a wider range of beneficial uses of the environment without
degradation, risk of health or safety, or other undesirable and
unintended consequences. Alternative C is the preferred alternative for
fulfilling the park's environmental mission without restricting valid
and lawful use. This document proposes regulations to implement
alternative C at Fire Island National Seashore.
The following summarizes the predominant resource protection and
public use issues associated with PWC use at Fire Island National
Seashore. Each of these issues was analyzed in the Fire Island National
Seashore, Personal Watercraft Use Environmental Assessment, which was
posted to the Fire Island National Seashore Web site on September 3,
2002 (http://www.nps.gov/fiis/).
Water Quality
The main issues associated with PWC use and water resources at Fire
Island are those related to water quality. Chemical impacts on water
quality result from PWC emissions of hydrocarbons including benzene,
toluene, ethylbenze, xylene (BTEX), polycyclic aromatic hydrocarbon
(PAH) and of methyl tertiary butyl ether (MTBE) directly into the
water. Yet, the impacts on water quality from pollutants vary according
to the PWC use areas. Areas of high tidal flushing dispel pollutants
faster than areas of low tidal flushing. Fire Island's inlets
experience very high flushing while its bays experience low flushing.
Thus, toxic pollutants remain in the bays for longer periods of time
than they do in the inlets.
The majority of locations proposed for continued use by PWC are
located in the western area of the park between Fire Island Inlet and
Sunken Forest. Because the allowed use areas under the proposed rule
are surrounded by Great South Bay, an extensive area of water both
within and outside park jurisdiction, the actual mixing/dilution
volumes would be substantially greater than in the PWC restricted use
areas. As such, allowing PWC use in only these areas will have
negligible to minor adverse impacts on water quality. When analyzed in
relation to all vessels in these areas, the cumulative impacts of all
vessels will be negligible to moderate adverse.
Air Quality
PWC emit various compounds that pollute the air even though the
exhaust is usually routed below the waterline. As much as one third of
the fuel delivered to current two-stroke PWC remains unburned and is
discharged as gaseous hydrocarbons (HC); the lubricating oil is used
and expelled as part of the exhaust; the combustion process results in
emissions of air pollutants such as volatile organic compounds (VOC),
nitrogen oxides (NOX), particulate matter (PM), and carbon
monoxide (CO).
NPS analyzed two categories of airborne pollution impacts: impacts
on human health and impacts on air quality related values in Fire
Island. Pollutants emitted from PWC that affect human health include
VOC and NOX, which in sunlight form ozone. Ozone can cause
or contribute to respiratory illness. Carbon monoxide (CO) also affects
humans by interfering with the oxygen carrying capacity of blood.
With regard to impacts on human health, continuation of PWC use in
the locations proposed at Fire Island would result in minor adverse
impacts for CO and NOX and negligible adverse impacts for
PM. For VOC emissions the impact would be major adverse in 2002,
decreasing to moderate adverse by 2012 due to improved emission
controls. When considering cumulative emissions from all boating
activities in both 2002 and 2012 the result would be negligible adverse
impacts for PM10, moderate adverse impacts for
NOX, and major adverse impacts for CO andVOC.
Soundscapes Values
Studies by many organizations on different types of PWC have found
noise levels associated with PWC to vary and range from about 80 to 102
dB. However, unlike motorboats, PWC are highly maneuverable and are
used for activities such as wave jumping, which often result in quickly
varying noise levels due to changes in acceleration and exposure of the
jet exhaust when crossing waves. The frequent change in pitch and noise
levels, especially if operated closer to land, make the noise from PWC
more noticeable to human ears.
One of the Seashore's natural resources is the natural soundscape,
also referred to as ``natural ambient
[[Page 51792]]
sounds'' or ``natural quiet.'' The natural soundscape includes all of
the naturally occurring sounds of the National Seashore. Conversely,
``noise'' is defined as unwanted sound. Sounds are described as noise
if they interfere with an activity or disturb the person hearing them.
The level of sound generated by watercraft using the National Seashore
area is expected to affect recreation users differently. For example,
visitors participating in less sound-intrusive activities such as bird
watching and hiking would likely be more adversely affected by PWC
noise than another PWC or motorboat user.
The proposed rule would require PWC users to operate at flat wake
speeds (maximum 6 mph) within ferryways and navigation channels, which
would reduce PWC-generated noise levels. Impacts would be negligible
adverse under the proposed rule. PWC operating at an idle would also
reduce noise levels farther from the shoreline. Noise reductions 1,000
feet from shore and beyond in the area west of Sunken Forest would be
substantial since PWC would be required to stay at least 1000[min]
offshore with the exception of marked ferryways and navigation channels
in the communities. East of the Sunken Forest PWC would be excluded
from the waters of the seashore or approximately 4000[min] offshore.
The cumulative adverse impact of boating noise, ambient noise
levels, and PWC use (where permitted) would continue to range from
negligible to minor, depending on the location of the hearer. As with
alternative B, under the proposed rule noise from personal watercraft
and other boats would have negligible to minor adverse impacts on other
recreational users at other locations within the National Seashore.
Removing PWC use from many areas of the National Seashore, as well
as implementing a 1,000-foot buffer zone, would result in negligible
adverse impacts. Specifically, noise from PWC and motorized boat use
within and near the National Seashore would have negligible to minor
adverse impacts on other recreational users at other locations within
the National Seashore.
Submerged Aquatic and Shoreline Vegetation
PWC have the potential to impact submerged aquatic vegetation and
shoreline vegetation as a result of operating in shallow waters or
adjacent to wetland habitats.
Submerged aquatic vegetation (SAV) benefit the aquatic ecosystems
because they provide a protective habitat for fish and shellfish; food
for waterfowl, fish, and mammals; and aid in oxygen production; absorb
wave energy and nutrients; and improve the clarity of the water. In
addition, SAV beds stabilize bottom sediments and reduce suspended
sediments present in the water column.
Under the proposed rule, PWC use would be limited to beach
community access channels and ferryways east of Sunken Forest. Users
would have to stay 1,000 feet away from any shoreline (including
smaller island shorelines) in the area west of Sunken Forest, except
for in the navigation channels and ferryways. PWC users operating in
navigation channels and ferryways would be required to maintain a flat-
wake speed. PWC are not allowed within the National Seashore boundaries
east of the western boundary of the Sunken Forest with the exception of
navigation channels into the communities.
Direct impacts on shoreline vegetation from PWC use are expected
around landing areas. Impacts on wetland vegetation and habitat are
expected to be beneficial because no PWC use would be allowed within
1,000 feet of any shoreline in the National Seashore. Effects to
shoreline vegetation associated with PWC use under the proposed rule
are expected to be short term and minor.
Adverse direct cumulative effects associated with increased future
PWC and other motorized watercraft use are expected to be minor.
Impacts on shoreline vegetation around landing areas associated with
foot traffic would continue. Cumulative beneficial impacts on shoreline
vegetation associated with the wetland habitats are expected due to the
1,000-foot buffer zone.
Short-term, minor impacts on shoreline vegetation would result
primarily from foot traffic associated with PWC access to beach areas.
PWC may access shoreline areas in community marinas that are not
bulkheaded and would not have any restrictions on them coming ashore.
Outside of these areas, no beach access would be permitted. Impacts on
tidal wetland habitats are expected to be beneficial as a result of
restricting PWC use within 1,000 feet of any shoreline.
Wildlife and Habitats
Some research suggests that PWC impact wildlife by interrupting
normal activities, causing alarm or flight, causing animals to avoid
habitat, displacing habitat, and affecting reproductive success. PWC
may have a greater impact on waterfowl and nesting birds because of
their noise, speed, and ability to access shallow-water areas more
readily than other types of watercraft. Literature suggests that PWC
can access sensitive shorelines, disrupting riparian habitat areas
critical to wildlife.
Impacts on wildlife from PWC use would be short term and minor
because species sensitive to noise and human activity are not expected
to regularly occur in these areas during high use periods. Prohibiting
PWC use over a large area of the National Seashore would have short-
and long-term, minor, beneficial impacts on wildlife and habitat in the
closed areas. Implementing flat wake zones in ferryways and navigation
channels would minimize the potential for collisions with wildlife.
Restricting PWC access to most of the shallow water habitat along the
National Seashore would also enhance the quality of essential fish
habitats in these areas, a long-term beneficial impact.
Discontinuing PWC use over a large percentage of the National
Seashore and implementing flat wake zones in ferryways and navigation
channels would have minor, beneficial impacts on wildlife and wildlife
habitat over the short and long term. Wildlife using closed areas
adjacent to PWC use areas could be affected by noise and possible water
quality impacts from PWC use in adjacent areas; however, such effects
are expected to be negligible.
Threatened and Endangered Species and Species of Concern
Numerous Federal and State listed threatened and endangered species
and protected species utilize habitats within Fire IslandNational
Seashore on either a permanent, seasonal, or transitory basis.
Federally listed species documented on Fire Island include the piping
plover, bald eagle, loggerhead sea turtle, the seabeach amaranth, and
others.
Threatened or endangered species in the area of Fire Island
National Seashore are not likely to be adversely affected by PWC use
under the proposed rule. Speed limit restrictions within the channels,
closures within the 1,000 foot buffer and closed areas where sensitive
shorebird nesting areas are most likely to occur, would reduce the
potential for adverse effects. Sea turtles are not likely to be
adversely affected by PWC use because the first 1,000 feet from the
shore would be closed and they are expected to avoid high use areas as
a result of noise and activity. Foraging activities of bald eagles and
peregrine falcons could potentially be affected by PWC use. However,
because these birds are typically present at a time of year when PWC
use is low, adverse effects are not likely. Also, restricting PWC use
within 1,000 feet of any shoreline would
[[Page 51793]]
further minimize potential impacts on sensitive species. Potential
effects on the seabeach amaranth are expected to be minimal because
foot traffic associated with PWC use would occur only in community
marina beach areas where the plant does not occur.
Visitor Experience
To determine impacts, the current level of PWC use was calculated
at locations throughout the National Seashore where PWC use is known to
occur. Other recreational activities and the type of visitor
experiences that are proposed in these locations were also identified.
Visitor surveys (if available) and staff observations were also
evaluated to determine visitor attitudes and satisfaction in areas
where personal watercraft are encountered.
Data suggest that the vast majority of visitors are satisfied with
their current experiences. The potential for change in visitor
experiences was evaluated by identifying projected increases or
decreases in both PWC and other visitor uses, and by determining
whether these projected changes would affect the desired visitor
experience and result in greater safety concerns or additional user
conflicts.
The proposed rule would have minor beneficial impacts on the
experiences of visitors other than PWC users. There would be a minor to
moderate adverse impact to PWC users as a consequence of closing areas
of the National Seashore to PWC use east of the Sunken Forest,
prohibiting use elsewhere within the 1,000-foot buffer zone, and
requiring flat wake speed limits in ferryways and navigation channels.
However, PWC users would still be allowed to operate outside the
restricted areas and flat wake zones at the west end of the island.
Cumulative impacts for all PWC users in the region would be
negligible to minor because other nearby areas would remain open to PWC
use. Impacts on other boaters and visitors would be negligible since
there would be little noticeable change in overall visitor experiences.
It is likely that most visitors would continue to be satisfied with
their experiences at the National Seashore.
Visitor Conflicts and Safety
PWC comprise 9% of all registered ``vessels'' in the United States,
but are involved in 36% of all boating accidents. In part, this is
believed to be a boater education issue (i.e., inexperienced riders
lose control of the craft), but it also is a function of the PWC
operation (i.e., no brakes or clutch; when drivers let up on the
throttle to avoid a collision, steering becomes difficult). Newer
models will reportedly have improved safety devices such as better
steering and braking systems, however, it will take time to infuse the
market with these types of newer machines.
Although a study conducted by National Transportation Safety Board
indicates PWC related fatalities will increase in the United States,
PWC related fatalities in the Fire Island National Seashore area have
been few in recent years.
Under the proposed rule, PWC use would be limited to beach
community access channels and ferryways east of Sunken Forest. Users
would have to stay 1,000 feet away from any shoreline (including
smaller island shorelines) in the area west of Sunken Forest, except in
the access channels and ferryways. An additional management restriction
would be the requirement to operate at flat wake speeds within
ferryways and navigation channels within the seashore boundary.
The potential for impacts on visitor safety resulting from PWC use
would be eliminated in areas where PWC use would no longer be allowed
and would be further reduced in the ferryways and navigation channels
as a result of the flat wake regulation. Swimmers would benefit from
restrictions on PWC use.
Depending on the type of activity and its location, potential
cumulative impacts on visitor safety would be negligible. Boaters
utilizing waters outside the park could be adversely affected to the
extent that increased PWC use in these waters would conflict with their
activities. Some beneficial impacts would result from restrictions on
PWC use and subsequent fewer conflicts and accidents.
The proposed rule would eliminate the potential for PWC-related
accidents within the restricted use areas of the National Seashore.
Flat wake restrictions in the ferryways and navigation channels would
reduce the potential for accidents to negligible to possibly minor
adverse impacts.
An increased potential for accidents between PWC users and other
boaters could occur outside NPS waters.
The Proposed Rule
As established by the April 2000 National Park Service rule, PWC
use is prohibited in all National Park System areas unless determined
appropriate. The process used to identify appropriate PWC use at Fire
Island National Seashore considered the known and potential effects of
PWC on park natural resources, traditional uses, public health and
safety. The proposed rule is designed to manage PWC use within the
National Seashore in a manner that achieves the legislated purposes for
which the park was established while providing reasonable access to the
park by PWC.
The use of motor vessels is a traditional method of accessing Fire
Island or land-based recreational activities. Therefore, providing PWC
owners with this opportunity is considered both desirable and
compatible with park purposes, assuming that such use would not result
in unacceptable impacts. To identify areas of potential use, the
effects of PWC use were evaluated against a number of resource and
public use issues. Given the high value and significance of National
Seashore resources, a precautionary approach was employed. Only those
areas with minimal, if any, potential for resource and visitor use
impacts were selected. A summary of the issues considered and
evaluation results are presented previously under ``Resource Protection
and Public Use Issues.''
Under proposed Sec. 7.20(d) the NPS would continue to allow PWC in
the areas west of Sunken Forest but will be enforcing a 1,000-foot
closed area along the shoreline fronting communities and National
Seashore lands. Areas east of Sunken Forest would be closed to PWC use,
except that PWCs would be able to use designated channels to access the
communities within the boundary of the park. Both east and west of
Sunken Forest PWC access would have speed limits of no greater than
flat-wake speed via the ferry and navigation channels that access the
communities. State and local regulations for travel in ferry channels
would also be enforced. All the channels that provide access to the
communities are marked with buoys regulated by the U.S. Coast Guard and
all the channels are identified on NOAA navigation charts.
Specifically, PWC users would be allowed to operate in:
Great South Bay from the western boundary of the national
seashore adjacent to Robert Moses State Park, east to the western
boundary of the Sunken Forest, excluding any area within 1,000 feet of
the shoreline, including East Fire Island and West Fire Island.
Navigation channels marked by buoys and identified on the
NOAA navigational chart (12352) to include access channels to and from
Fair Harbor, Dunewood, Lonelyville, Atlantique, Cherry Grove, Fire
Island Pines, Davis Park, Moriches Inlet, and to the communities of
Kismet, Saltaire, Ocean Beach, Ocean Bay Park, Point O'Woods,
Oakleyville, and Water Island
[[Page 51794]]
at ``flat-wake speed'' (maximum of 6 mph).
The Long Island Intracoastal Waterway within the park
boundaries.
Also included in proposed Sec. 7.20(d) is a requirement that PWC
operating in ferryways and navigation channels would be required to
maintain a flat wake speed. All local, state, and federal laws and
regulations relative to PWC use would remain in effect and be enforced
by the park.
Areas open to PWC use have physical and biological characteristics
that minimize the potential for adverse impacts on park resources and
values, and are located immediately adjacent to Fire Island population
centers that currently experience high levels of general boat traffic.
The intended effect is to provide island access for persons wanting to
use a PWC to travel to the National Seashore or for persons for whom a
PWC is the only form of water access to Fire Island.
The closure of most National Seashore waters to PWC use does not
adversely affect the public's ability to operate PWC in the region as a
whole. More than three fourths of the Great South Bay, and a little
less then half of the waters of Narrows Bay and Moriches Bay are
outside National Park Service jurisdiction. These areas are currently
available to PWC and constitute alternative use areas for operators who
had previously utilized waters within the National Seashore that are
now closed.
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 Fire Island
National Seashore'' (Law Engineering and Environmental Sciences, Inc.)
dated March 2002. The report found that this proposed rule will not
have a negative economic impact. In fact this rule, which will not
impact local PWC dealerships and rental shops, may have an overall
positive impact on the local economy. This positive impact to the local
economy is a result of an increase of other users, most notably
canoeists, swimmers, anglers and traditional boaters seeking solitude
and quiet, and improved water quality.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. Actions
taken under this rule will not interfere with other agencies or local
government plans, policies, or controls. This is an agency specific
rule.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule will have no effects on entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No grants or other forms of monetary supplements are
involved.
(4) This rule raises novel policy issues. This regulation is one of
the special regulations being issued for managing PWC use in National
Park Units. The National Park Service published the general regulations
(36 CFR 3.24) in March 2000, requiring individual park areas to adopt
special regulations to authorize PWC use. The implementation of the
requirements of the general regulation continues to generate interest
and discussion from the public concerning the overall effect of
authorizing PWC use and National Park Service policy and park
management.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based upon the finding in a report prepared by
the National Park Service entitled, ``Economic Analysis of Personal
Watercraft Regulations in Fire Island National Seashore''(Law
Engineering and Environmental Sciences, Inc., March 2002). The focus of
this study was to document the impact of this rule on two types of
small entities, PWC dealerships and PWC rental outlets. This report
found that the potential loss for these types of businesses as a result
of this rule would be minimal to none.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The National Park Service
has completed an economic analysis to make this determination. This
rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. This rule is an
agency specific rule and imposes no other requirements on other
agencies, governments, or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant taking implications. A taking implication assessment is not
required. No takings of personal property will occur as a result of
this rule.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. This proposed rule only affects use of NPS
administered lands and waters. It has no outside effects on other areas
and only allows use within a small portion of the park.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB Form 83-I is not required.
National Environmental Policy Act
The National Park Service has analyzed this rule in accordance with
the criteria of the National Environmental Policy Act and has prepared
an Environmental Assessment (EA). The EA was open for public
[[Page 51795]]
review and comment from September 3, 2002, to November 11, 2002. A copy
of the EA and the errata is available by contacting the Superintendent,
Fire Island National Seashore,120 Laurel Street, Patchogue, New York
11772. E-mail: michael_bilecki@nps.gov, Fax: (631) 289-4898, or on the
Internet at http://www.nps.gov/fiis/pwc/pwc.htm.
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.
Clarity of Rule
Executive Order 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) Would the rule be easier to read if it were divided into
more (but shorter) sections? (A ``section'' appears in bold type and is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 7.20 Fire Island National Seashore.) (5) Is the description of
the rule in the ``Supplementary Information'' section of the preamble
helpful in understanding the proposed rule? What else could 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.
E-mail: Execsec@ios.doi.gov.
Drafting Information
The primary authors of this regulation are: Wayne Valentine, Chief
Ranger; Michael Bilecki, Chief of Resource Management, Fire Island
National Seashore; Sarah Bransom, Environmental Quality Division; and
Kym Hall, Special Assistant.
Public Participation
If you wish to comment, you may submit your comments by any one of
several methods. You may mail written comments to: Superintendent, Fire
Island National Seashore, 120 Laurel Street, Patchogue, New York 11772,
comment by electronic mail to: michael_bilecki@nps.gov, or comment by
Fax at: (631) 289-4898. Please also include ``PWC rule'' in the subject
line and your name and return address in the body of your Internet
message. Finally, you may hand deliver comments to Superintendent, Fire
Island National Seashore, 120 Laurel Street, Patchogue, New York.
Our practice is to make comments, including names and addresses of
respondents, available for public review during regular business hours.
Individual respondents may request that we withhold their home address
from the rulemaking record, which we will honor to the extent allowable
by law. If you wish us to withhold your name and/or address, you must
state this prominently at the beginning of your comment. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials or organizations or
businesses, available for public inspection in their entirety.
List of Subjects in 36 CFR Part 7
District of Columbia, National Parks, Reporting and Recordkeeping
requirements.
For the reasons stated in the preamble, the National Park Service
proposes to amend 36 CFR Part 7 as follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The authority citation for Part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
2. Add new paragraph (d) to Sec. 7.20 to read as follows:
Sec. 7.20 Fire Island National Seashore.
* * * * *
(d) Personal watercraft. (1) Personal watercraft (PWC) may operate
in the following locations and under the following conditions:
(i) Great South Bay from the western boundary of the national
seashore adjacent to Robert Moses State Park, east to the western
boundary of the Sunken Forest, excluding any area within 1,000 feet of
the shoreline, including the area surrounding East Fire Island and West
Fire Island.
(ii) Navigation channels marked by buoys or identified on the NOAA
navigational chart (12352) to include access channels to and from Fair
Harbor, Dunewood, Lonelyville, Atlantique, Cherry Grove, Fire Island
Pines, Davis Park, Moriches Inlet, Kismet, Saltaire, Ocean Beach, Ocean
Bay Park, Point O'Woods, Oakleyville, and Water Island.
(iii) The Long Island Intracoastal Waterway within the park
boundaries.
(iv) At ``flat wake'' speeds (maximum 6 mph) within designated
marked channels to access town/community docks and harbors/marinas.
(2) The Superintendent may temporarily limit, restrict or terminate
access to the areas designated for PWC use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives.
Dated: August 12, 2004.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-19189 Filed 8-20-04; 8:45 am]
BILLING CODE 4312-52-P