[Federal Register Volume 67, Number 87 (Monday, May 6, 2002)]
[Proposed Rules]
[Pages 30339-30345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11046]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD02


Assateague Island National Seashore, Personal Watercraft Use

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service is proposing to designate areas 
where personal watercraft (PWC) may be used in Assateague Island 
National Seashore, Maryland and Virginia. This rule is necessary 
because regulations requires any park allowing the use of PWC to 
promulgate a special regulation authorizing the use. Furthermore, the 
NPS Management Policies 2001 also, require individual parks, in order 
to promulgate a special regulation, to determine that PWC use is 
appropriate for a specific park area based on that area's enabling 
legislation, resources, values, other visitor uses, and overall 
management objectives.

DATES: Comments must be received by July 5, 2002.

ADDRESSES: Comments on the rule and the Environmental Assessment should 
be sent to Superintendent, Assateague Island National Seashore, 7206 
National Seashore Lane, Berlin, Maryland 21811 Email: Regina [email protected] Fax: (410) 641-1099.

FOR FURTHER INFORMATION CONTACT: Kym Hall, Regulations Program Manager, 
National Park Service, 1849 C Street, NW, Room 7413, Washington, DC 
20240. Phone: (202) 208-4206. Email: [email protected]. Fax: (202) 208-
6756.

SUPPLEMENTARY INFORMATION:

Purposes of the National Seashore

    Assateague Island National Seashore was authorized on September 21, 
1965 (Pub. L. 89-195) ``for the purpose of protecting and developing 
Assateague Island * * * and certain adjacent waters and small marsh 
islands for public outdoor recreation, use and enjoyment * * *'' The 
1965 Act went on to state ``* * * the Secretary shall administer the 
Assateague Island National Seashore for the general purposes of public 
outdoor recreation, including conservation of natural features 
contributing to public enjoyment. In the administration of the seashore 
* * * the Secretary may utilize such statutory authorities relating to 
areas administered * * * through the National Park Service * * * for 
conservation and management of natural resources as he deems 
appropriate * * *''.
    This purpose was amended by the Act of October 21, 1976 (Pub. L. 
94-578) that directed the Secretary of the Interior to prepare a 
``comprehensive plan'' which would include, among other things, 
``Measures for the full protection and management of natural resources 
and natural ecosystems of the seashore.'' The General Management Plan 
that evolved from this mandate reflects a systematic approach to park 
management whereby recreational use and development is balanced with 
the need to ensure long-term protection of natural resources and 
values.

Description of the National Seashore

    Assateague Island National Seashore is an important national 
resource visited by more than 1.8 million people annually, showcasing 
one of the few remaining undeveloped barrier island environments along 
the Mid-Atlantic Coast. The National Park Service shares responsibility 
for land management on Assateague Island with the State of Maryland, 
which operates Assateague State Park, and the U.S. Fish and Wildlife 
Service, which manages Chincoteague National Wildlife Refuge on the 
Virginia portion of the island.
    Assateague Island is a 37-mile long coastal barrier island located 
along the Delaware-Maryland-Virginia (Delmarva) peninsula, extending 
from Ocean City Inlet, Maryland to Chincoteague Inlet, Virginia. The 
Island varies in width from less than 1000 feet along portions of the 
northern end to more than 4300 feet adjacent to Toms Cove in Virginia. 
Elevation is generally very low, averaging approximately 7 feet, but 
can exceed 35 feet on isolated dunes. The ocean shoreline has a smooth 
curving configuration while the bay shoreline is a highly irregular 
mosaic of terrestrial and aquatic habitats created by numerous small 
landforms lying adjacent to Assateague Island proper.
    The boundary of the National Seashore includes approximately 48,700 
acres, most of which are adjacent oceanic and estuarine waters. The 
boundary extends offshore from Assateague Island approximately one-half 
mile on the ocean side, and a variable distance on the bay side ranging 
from less than 600 feet to more than 5,000 feet. On the Island itself, 
approximately 9,000 acres (predominantly in Virginia) and 700 acres 
(Maryland) fall under the jurisdiction of the U.S. Fish and Wildlife 
Service and State of Maryland, respectively, with the balance, some 
8,100 acres (predominantly in Maryland), managed by the National Park 
Service.
    The resources and values that define the natural environment of 
Assateague 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 Mid-Atlantic coast. Wildlife resources range from a 
myriad of aquatic and terrestrial species inhabiting estuarine habitats 
to the free roaming feral horses for which Assateague is famous. 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. 
Throughout the Seashore, the relationship of land and water is 
paramount and change is the only constant.
    The aquatic habitats of Assateague Island and the adjacent coastal 
bays are central to the significance of the National Seashore. The 
inshore waters are part of a relatively small network of coastal 
lagoons that parallel the Atlantic coast from Delaware to Virginia. 
Assateague Island forms the eastern boundary of the Sinepuxent/
Chincoteague bays complex, the largest component of the system. 
Combined, these two bays have a total surface area of approximately 
36,000 acres and a watershed of approximately 150 square miles. The 
bays are uniformly shallow with an average depth of 1.2 meters (4 feet) 
and are generally characterized as poorly flushing due to the limited 
freshwater inflow, restricted tidal exchange through two inlets, and a 
tidal range of less than 1 foot.
    From a regional perspective, Assateague Island National Seashore 
includes the only remaining undeveloped barrier island in the State of 
Maryland, and a significant portion of the region's highest-quality 
marine/estuarine habitat. A substantial portion of the submerged 
aquatic vegetation (SAV) occurring in Maryland's coastal bays is found 
within park boundaries. Extensive salt marshes, inter-tidal flats, and 
the broad shallow margins of the

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coastal bays adjacent to Assateague are key components of an estuarine 
system crucial to the maintenance of regional biological diversity and 
ecosystem health.
    Assateague Island National Seashore provides important habitat for 
a number of federally listed threatened and endangered species, 
including but not limited to the peregrine falcon, loggerhead, green, 
and leatherback sea turtles, bald eagle, Delmarva fox squirrel, 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 mid-Atlantic conservation and restoration efforts. 
The northern 6 miles of the park provides the most favorable conditions 
for piping plover breeding activity and supports a majority of the 
local population. Recently re-discovered after an absence of more than 
30 years, sea beach amaranth is the subject of an ongoing restoration 
effort to develop a sustainable population on Assateague Island.
    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 peregrine falcons 
and abundance of wintering waterfowl, and because of its importance as 
wintering, staging, and breeding habitat, has been designated a 
component of the Western Hemisphere Shorebird Reserve Network and a 
Globally Important Bird Area. 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 Assateague Island National Seashore are 
regularly utilized by a variety of marine mammals on a seasonal or 
transitory basis. More than fifteen species have been documented to 
occur in the National Seashore, all of which are protected under the 
Marine Mammal Protection Act of 1972. The most commonly observed 
species are the harbor porpoise and bottlenose dolphin, generally 
occurring in ocean nearshore waters. Harbor porpoise are most commonly 
observed during the winter months, while bottlenose dolphins are 
present largely during the summer.
    Oceanic and estuarine waters and their associated biota also play a 
dominant role in recreational use of the National Seashore. More than 
65% of visits to the park involve the use of aquatic habitats. The 
primary recreational activities include swimming, walking for pleasure, 
sightseeing, wildlife photography and observation, picnicking, and 
saltwater fishing.

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) 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 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 regards 
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 clarified its authority to regulate 
activities within the park boundaries occurring on waters subject to 
the jurisdiction of the United States by publishing a final rule, 36 
CFR 1.2(a)(3).

Personal Watercraft Use in the National Seashore

    PWC use at Assateague Island National Seashore is a relatively 
recent phenomenon, paralleling the national trend of increasing 
popularity and sales during the 1980s and 1990s. During that period, 
the preponderance of PWC use within the National Seashore occurred in 
the ocean and bay waters surrounding the northernmost 6 miles of 
Assateague Island. This area is immediately adjacent to the town of 
Ocean City which, with its summertime population of 300,000 and 
numerous marinas and boat launching facilities, generates significant 
amounts of water-based recreation, including boating and PWC use.
    While systematic counts of PWC operating within the National 
Seashore have not been conducted, regional surveys indicate that 
general boating activity increased significantly between 1970 and 1990. 
Informal observations by NPS staff suggest a continuation of this trend 
through the 1990s, particularly in the use of PWC. In 1999, surveys 
conducted by the Maryland Department of Natural Resources over 
consecutive August weekends reported the total number of all vessels 
using Sinepuxent Bay and Ocean City Inlet ranged from 172-376. PWC use 
during the same surveys ranged from 63 to 137. Most of this use was in 
the Ocean City Inlet, going to or returning from the ocean, and close 
to but outside the park boundaries.
    The predominate season of PWC use in the Assateague region is May 
through September. Operators have tended to be non-residents 
vacationing in the Ocean City area, although rapid population growth in 
the coastal counties of Maryland and Virginia is continually increasing 
the number of resident boaters using local waterways.
    On April 20, 2000, the National Park Service 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 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 2000, PWC use was allowed throughout Assateague Island 
National Seashore, although as previously noted, the vast majority 
occurred adjacent to the northern end of the Island. In May 2000, most 
of the waters within the National Seashore were closed to PWC use 
consistent with the National Park Service PWC rule and a local 
determination that their continued use threatened the resources and 
values for which the park was established to protect. The authority for 
this closure was based upon 36 CFR Section 1.5, Closure and Public Use 
Limits.
    Three areas within the boundary of the National Seashore were 
designated to remain open to PWC use. The first was a small area 
(approximately 26 acres) located in the Ocean City Inlet adjacent to 
the north shore of Assateague Island. The second was a larger area 
(approximately 224 acres) located near the southern end of the

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Island between Assateague Point and Horse Marsh. The third was located 
in Sinepuxent Bay, just north of Verrazano Bridge, and included waters 
lying between the Park's authorized boundary and a roughly parallel 
line of State of Maryland buoys marking submerged aquatic vegetation 
(SAV) beds adjacent to Assateague Island.

Development of 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 
Assateague 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 
Assateague Island for land-based recreational activities. As such, 
providing PWC owners with this opportunity was 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 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 in the next section.
    Under this proposed rule, two of the three areas where PWC use now 
exists, the Ocean City Inlet and Horse Marsh areas, will remain open 
for PWC use, primarily to provide transportation corridors. Both areas 
have physical and biological characteristics that minimize the 
potential for adverse impacts to park resources and values, and both 
are located immediately adjacent to population centers and 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 Assateague Island.
    The third area where PWC use now exists (Sinepuxent Bay) was re-
evaluated against the resource protection and public use issues 
described below. The area was found to be comparable to the majority of 
park waters, and did not possess the physical and biological 
characteristics that would minimize the potential for adverse impacts. 
As such, the use of PWC in this area is incompatible with the resource 
protection objectives of the National Seashore. However, the closure 
will have minimal impact on PWC use in the majority of Sinepuxent Bay 
because the largest portion of the Bay is outside NPS jurisdiction and 
will remain open to PWC use, subject to the state of Maryland laws and 
regulations.
    The closure of most National Seashore waters to PWC use does not 
adversely effect the public's ability to operate PWC in the region as a 
whole. More than two-thirds of Chincoteague Bay, Sinepuxent Bay and the 
Ocean City Inlet, and all of Isle of Wright and Assawoman Bays 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.

Resource Protection and Public Use Issues

    The following summarizes the predominant resource protection and 
public use issues associated with PWC use at Assateague Island National 
Seashore. Each of these issues is analyzed in the companion 
environmental assessment.

Water Quality

    The main issues associated with PWC use and water resources at 
Assateague Island are those related to water quality. Chemical impacts 
to water quality draw 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 to 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. Assateague 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 two locations proposed for continued use by PWC are both 
located adjacent to ocean inlets with high tidal flushing and contain 
less than 1% of the water surface area of the National Seashore. As 
such, allowing PWC use in these areas will have negligible to minor 
adverse impacts on water quality. When analyzed with 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) (US EPA).
    NPS analyzed two categories of airborne pollution impacts: Impacts 
on human health and impacts on air quality related values in Assateague 
Island. Pollutants emitted from PWC that affect human health includes 
VOC and NOX, which in sunlight form ozone. Ozone can cause 
or contribute to respiratory illness (Wark and Warner 1981). 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 two locations proposed at Assateague Island would result in minor 
adverse impacts for CO and negligible adverse impacts for other 
pollutants of concerns including PM, HC, and VOC. When considering 
cumulative impacts of all boating activities, emissions would result in 
moderate adverse for CO and negligible to minor adverse for all other 
pollutants of concern.
    PWC emissions also impact air quality related values. For example, 
ozone, which is toxic to sensitive vegetative species, causes visible 
injury to foliage, decreases plant growth, and increases plant 
susceptibility to insects and disease. NOX and PM emissions 
associated with PWC use can degrade visibility. NOX also 
contributes to acid deposition effects on plants, water, and soil. With 
respect to air quality related values in the areas at Assateague Island 
proposed for continued use under this rule, annual PWC emissions would 
result in negligible adverse impacts with no perceptible qualitative 
visibility impacts or injury to plants. Impacts on visibility, 
wildlife, and plants from airborne pollutants are negligible. When 
considering all boating activity, emissions result in negligible to 
minor adverse impacts.

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Soundscapes Values

    Studies by many organizations on different types of PWC have found 
noise levels associated with PWC to vary and range from about 71 to 105 
dB. However, unlike motorboats, PWC are highly maneuverable and are 
used for stunts, 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 (Asplund 2001).
    One of the Seashore's natural resources is the natural soundscape, 
also referred to as ``natural ambient 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/or hiking 
would likely be more adversely affected by PWC noise than another PWC 
or motorboat user.
    Noise levels vary from the north and south ends of the island. 
Noise levels at the north end of the island are affected by PWC use in 
the transportation corridor and outside the national seashore boundary. 
Noise sources at the Ocean City Inlet area include powerboats, PWC, 
commercial vessels, background noise from the town of Ocean City, and 
small aircraft. In general, the use of PWC would result in minor 
adverse impacts where other users are concentrated in the northern 
inlet landing area. At the Ocean City Inlet landing area, PWC noise 
would be heard throughout the day but ambient sounds are predominant.
    Little Beach (southern end of Assateague Island) is quieter with 
fewer PWC and/or watercraft generating noise in the area. It is assumed 
to have lower ambient noise levels due to its location away from urban 
environments. Little Beach is sensitive to noise disturbances due to 
the abundant bird population in the area. PWC noise levels would be 
expected to have moderate adverse impacts in the area of Little Beach 
potentially disturbing wildlife. Overall, noise levels from PWC would 
be expected to have negligible to moderate adverse impacts at certain 
locations within the Assateague Island National Seashore boundary.
    The cumulative impacts of boating noise, ambient noise levels, and 
PWC would continue to range from negligible to moderate dependant on 
location within the park boundary. The northern landing area in the 
Ocean City Inlet experiences elevated noise levels due to the presence 
of Ocean City and the level of boat traffic within the inlet. Impacts 
to noise levels would be minor with the continuation of noise from PWC 
in the inlet.

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. However, SAV beds do not exist in the areas proposed for 
continued PWC use at Assateague Island; therefore in these areas, PWC 
use will have no impact.
    Short-term, minor adverse direct and indirect impacts to shoreline 
vegetation are expected under the proposed rule in the northern landing 
area. While direct impacts from PWC use to shoreline vegetation at the 
northern PWC landing area are not expected because the shoreline is 
characterized by an unvegetated beach, an access trail to the beach may 
allow some trampling of vegetation as a result of foot travel off 
trail. This however, would only occur if PWC operators disembark at the 
landing area and travel by foot along the island, as do other visitors.
    Under the proposed rule, PWC are only allowed shore access to the 
area designated as Little Beach in the southern landing area. Areas of 
sparse shrubland habitat, naturally occurring unvegetated beaches, 
maritime/coastal loblolly pine wetland forest, grass shrubland, and a 
few small areas of dune grassland characterize Little Beach. Impacts to 
shoreline vegetation are expected to result primarily from foot 
traffic. Adverse effects are expected to be minor due to limited use of 
the southern landing area. Cumulative impacts to shoreline vegetation 
are not expected if PWC and other watercraft are restricted to 
designated use areas.

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.
    The northern landing area is located in an area that experiences a 
high level of use by PWC. Yet, PWC use in the vicinity of the northern 
landing area would have minor adverse effects on terrestrial wildlife, 
such as shorebirds using the landing area and adjacent areas and other 
species such as fish that use nearshore habitats to forage for food. 
However, effects would be minor because species sensitive to a high 
level of noise and human activity are not expected to regularly use the 
landing area or immediately adjacent habitats during high PWC use 
periods.
    The intensity of PWC use in the vicinity of the southern landing 
area is much less than at the northern landing area. Wildlife species 
using marsh and shoreline areas on and in the vicinity of the southern 
landing area would be less accustomed to high levels of human activity 
and noise. Occasional nearshore PWC use in the vicinity of the southern 
landing area would have minor adverse effects to wading and shorebirds, 
waterfowl, and other wildlife by disrupting normal nesting, foraging, 
or resting activities.

Threatened and Endangered Species and Species of Concern

    Numerous Federal and state listed threatened and endangered species 
and protected species utilize habitats within Assateague Island 
National Seashore on either a permanent, seasonal, or transitory basis. 
Federally listed species documented on Assateague Island include the 
piping plover, bald eagle, loggerhead sea turtle, the Delmarva fox 
squirrel, and the seabeach amaranth. The Maryland listed threatened 
black skimmer, peregrine falcon, gull-billed tern, royal tern, white 
tiger beetle, little white tiger beetle, and least tern also occurs on 
the Island.
    The federally listed piping plover's nesting areas are located 
several hundred feet from the northern landing area. However, access to 
shore areas adjacent to the landing area with the potential to provide 
nesting areas for the

[[Page 30343]]

piping plover is prohibited during the nesting season. Piping plover 
are not likely to be adversely affected by PWC use at the northern or 
southern landing areas due to the distance of the landing areas from 
nesting areas and access restrictions around piping plover nesting 
areas during the nesting season.
    Several Federal and state endangered and threatened turtles 
including Kemp's Ridley sea turtle, green sea turtle, leatherback sea 
turtle and the loggerhead sea turtle have been documented by the NMFS 
to occur in the waters off of Assateague Island during the warmer 
summer months. Sea turtles are not likely to be adversely affected by 
PWC use in the northern and southern landing areas because the proposed 
use areas represent a very small portion of the overall habitat 
available in both the park and region.
    The Federal and Virginia threatened bald eagle is documented to 
have two active nests in the Chincoteague National Wildlife Refuge. 
Foraging activities of bald eagles could potentially be affected by PWC 
use in the area of the southern landing area; however, because PWC use 
in this area is limited, adverse effects on the species are not likely.
    No effects to the Delmarva fox squirrel or seabeach amaranth are 
expected as a result of PWC use because these species do not occur in 
areas affected by PWC use. Cumulative impacts are not likely to 
adversely affect federally listed threatened or endangered species on 
Assateague Island National Seashore.

Visitor Experience

    A survey of recreational boaters operating in the waters within and 
adjacent to Assateague Island National Seashore reports a high 
frequency of conflicts between the boating public and PWC users. 
Problems reported include the presence of PWC in fishing areas, noise, 
PWC operation too close to anchored boats, and excessive speed 
(University of Delaware 2000).
    Of visitors who access Assateague Island by vehicle, swimmers, 
hikers and other visitors to the north end of the island and the hiking 
trails to the south would have slightly more contact with PWC operators 
than visitors to the oceanside of the park. Noise generated by PWC 
would reach visitors to the marshes and hiking trails at the southern 
end of the island. Impacts to visitor experience, specifically bird 
watching, would be moderate adverse towards the end of the season when 
the first waves of migratory birds begin to show their presence on the 
island and PWC users are still present.
    PWC users would have little or no noticeable change in their 
visitor experience or visitor satisfaction, since restrictions would 
allow for access to portions of the park and not affect PWC activity 
outside the park boundary. Visitors who use PWC at Assateague Island 
National Seashore would experience negligible adverse impacts. 
Elimination of PWC in Sinepuxent Bay portion of the park would affect 
those who would be precluded from using PWC there, but because the use 
is relatively low and other opportunities exist for PWC use, these 
impacts would be minor. Cumulative impacts related to PWC, other boats, 
and visitors on the visitor experience would be negligible adverse, 
since there would be little noticeable change in the visitor experience 
overall.

Visitor Conflicts and Safety

    PWC comprise 9% of all registered ``vessels'' in the United States, 
but are involved in 36% of all boating accidents (NTSB 1998). 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 the study conducted by National Transportation Safety 
Board indicates PWC related fatalities increasing in the United States, 
PWC related fatalities in the Assateague Island National Seashore area 
have been few in recent years. There were 46 PWC-related accidents 
including one fatality in Maryland in 2000. The primary causes of these 
accidents were excessive speed, operator inexperience, operator 
inattention, and machinery failure. There were 37 PWC-related accidents 
resulting in one fatality in Virginia in 2000.
    The potential for accidents with other boaters (canoes, kayaks, 
sailboats and motorboats) in the Ocean City Inlet is considered to be 
of a moderate to major level due to the level of activity. The nature 
of PWC use poses threats to the safety of the PWC operator and 
occupants of vessels with slow reaction times such as sailboats, 
canoes, and kayaks. However, the areas proposed to be open to PWC use 
are intended to be used primarily as transportation corridors which may 
mitigate these potential hazards. Potential accidents involving PWC and 
swimmers may occur in nearshore waters at the extreme northeast and 
northwest sections of the island adjacent to the PWC landing area (most 
swimmers do not venture farther than 200 feet from shore). However, due 
to the small number of visitors utilizing these shores, adverse impacts 
are predicted to continue at a minor to moderate level. At the southern 
end of the island at Little Beach, potential accidents may occur 
involving PWC and swimmers. The number of PWC in this area is much more 
limited than at the northern end of the island. Consequently, the 
potential adverse impacts to swimmers at Little Beach are considered to 
be negligible to minor adverse.
    Cumulative impacts under the proposed rule would continue at minor 
to potentially major levels over the next 10 years as congestion 
increases. As the number of motorized watercraft in the water continues 
to increase, the potential for accidents would escalate as well. This 
is particularly visible in the Ocean City Inlet where the potential for 
accidents between PWC and other motorboats exists.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and has 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 Assateague 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

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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 the first of thirteen special regulations 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 Assateague 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. Do 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 effect 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 
a Draft Environmental Assessment (EA). The EA is available for public 
review and comment in conjunction with this proposed rule. A copy of 
the Draft EA is available by contacting the Superintendent, Assateague 
Island National Seashore, 7206 National Seashore Lane, Berlin, Maryland 
21811, Email: Regina--[email protected], Fax: (410) 641-1099, or by 
downloading it from the internet at www.nps.gov/asis.

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. 7.65 Assateague 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.
    Drafting Information: The primary authors of this regulation are:
    John C. Burns, Chief Ranger, Carl S. Zimmerman, Chief of Resource 
Management, Assateague Island National Seashore, Sarah Bransom, 
Environmental Quality Division, and Kym Hall, Regulations Program 
Manager.
    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, Assateague Island National Seashore, 7206 National 
Seashore Lane, Berlin, Maryland 21811, comment by electronic mail to: 
Regina_[email protected], or comment by Fax at: (410) 641-1099. 
Please also include ``PWCrule'' in the subject line and your name and 
return address in the body of your Internet message. Finally, you may 
hand deliver

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comments to Superintendent, Assateague Island National Seashore, 7206 
National Seashore Lane, Berlin, Maryland. 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. Section 7.65 is amended by adding paragraph (c) to read as 
follows:


Sec. 7.65  Assateague Island National Seashore

* * * * *
    (c) Personal Watercraft. (1) Personal Watercraft (PWC) are allowed 
in Assateague Island National Seashore within the following locations 
and under the following conditions:
    (i) Ocean City Inlet. PWC may operate, transit, launch in water or 
beach on land between the north shore of Assateague Island and the 
south margin of the established Ocean City Inlet channel, between 
Lighted Buoy #10 at approximate latitude 38.19.30N, longitude 75.05.30W 
and Lighted Buoy #11 at approximate latitude 38.19.16N, longitude 
75.09.0W
    (ii) Chincoteague Bay. PWC may operate, transit or launch in waters 
between the established Park boundary and the western shore of 
Assateague Island, from Assateague Point north to that portion of Horse 
Marsh located due east of the Memorial Park boat ramp on Chincoteague 
Island.
    (iii) Oceanside. PWC are allowed to beach along the ocean side of 
the island only in the case of personal injury or mechanical failure.
    (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: March 26, 2002.
Craig Manson,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 02-11046 Filed 5-3-02; 8:45 am]
BILLING CODE 4310-70-P