[Federal Register Volume 69, Number 162 (Monday, August 23, 2004)]
[Proposed Rules]
[Pages 51788-51795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19189]


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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

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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: [email protected]. 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: [email protected].

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

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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

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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: [email protected], 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: [email protected].

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: [email protected], 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