[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Proposed Rules]
[Pages 77089-77101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-8003]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD44


Cape Lookout 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 be used in Cape Lookout 
National Seashore, North Carolina. This proposed 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 directs 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 February 27, 2006.

ADDRESSES: You may submit comments, identified by the number RIN 1024-
AD44, by any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov 
Follow the instructions for submitting comments.
     Mail or hand delivery to: Superintendent, Cape Lookout 
National Seashore, 131 Charles Street, Harkers Island, NC 28531.
     For additional information see ``Public Participation'' 
under SUPPLEMENTARY INFORMATION below.

FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program 
Manager, National Park Service, 1849 C Street, NW., Room 7241, 
Washington, DC 20240. Phone: (202) 208-4206. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

Additional Alternatives

    The information contained in this proposed rule supports 
implementation of portions of the preferred alternative in the 
Environmental Assessment (EA) published January 2005. The public should 
be aware that two other alternatives were presented in the EA, 
including a no-PWC alternative, and those alternatives should also be 
reviewed and considered when making comments on this proposed rule.

Personal Watercraft Regulation

    On March 21, 2000, the NPS published a regulation (36 CFR 3.24) 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 for 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 Cape Lookout National Seashore

    Cape Lookout National Seashore was established by Congress in 1966 
to

[[Page 77090]]

conserve and preserve for public use and enjoyment the outstanding 
natural, cultural, and recreational values of a dynamic coastal barrier 
island environment for future generations. Cape Lookout National 
Seashore is a low, narrow, ribbon of sand located three miles off the 
mainland coast in the central coastal area of North Carolina and 
occupies more than 29,000 acres of land and water from Ocracoke Inlet 
on the northeast to Beaufort Inlet to the southwest. The national 
seashore consists of four main barrier islands (North Core Banks, 
Middle Core Banks, South Core Banks, and Shackleford Banks), which 
consist mostly of wide, bare beaches with low dunes covered by 
scattered grasses, flat grasslands bordered by dense vegetation, and 
large expanses of salt marsh alongside the sound. There are no road 
connections to the mainland or between the islands.
    Coastal barrier islands, such as those located in Cape Lookout 
National Seashore, are unique land forms that provide protection for 
diverse aquatic habitats and serve as the mainland's first line of 
defense against the impacts of severe coastal storms and erosion. 
Located at the interface of land and sea, the dominant physical factors 
responsible for shaping coastal landforms are tidal range, wave energy, 
and sediment supply from rivers and older, pre-existing coastal sand 
bodies. Relative changes in local sea level also profoundly affect 
coastal barrier island diversity. Coastal barrier islands exhibit the 
following six characteristics:
     Subject to the impacts of coastal storms and sea level 
rise.
     Buffer the mainland from the impact of storms.
     Protect and maintain productive estuarine systems which 
support the nation's fishing and shellfishing industries.
     Consist primarily of unconsolidated sediments.
     Subject to wind, wave, and tidal energies.
     Include associated landward aquatic habitats which the 
non-wetland portion of the coastal barrier island protects from direct 
wave attack.
    Coastal barrier islands protect the aquatic habitats between the 
barrier island and the mainland. Together with their adjacent wetland, 
marsh, estuarine, inlet, and nearshore water habitats, coastal barriers 
support a tremendous variety of organisms. Millions of fish, shellfish, 
birds, mammals, and other wildlife depend on barriers and their 
associated wetlands for vital feeding, spawning, nesting, nursery, and 
resting habitat.
    Shackleford Banks contains the park's most extensive maritime 
forest as well as wild horses that have adapted to this environment 
over the centuries. The islands are an excellent place to see birds, 
particularly during spring and fall migrations. A number of tern 
species, egrets, herons, and shorebirds nest here. Loggerhead turtles 
climb the beaches at nesting time.

Purpose of Cape Lookout National Seashore

    Cape Lookout National Seashore was authorized on March 10, 1966, by 
Public Law 89-366. Additional legislation, Public Law 93-477 (October 
26, 1974), called for another 232-acre tract of land to be acquired, a 
review and recommendation of any suitable lands for wilderness 
designation, and authorized funding for land acquisition and essential 
public facilities.
    The purpose of Cape Lookout National Seashore is to conserve and 
preserve for public use and enjoyment the outstanding natural, 
cultural, and recreational values of a dynamic coastal barrier island 
environment for future generations. The national seashore serves as 
both a refuge for wildlife and a pleasuring ground for the public, 
including developed visitor amenities.
    The mission of Cape Lookout National Seashore is to:
     Conserve and preserve for the future the outstanding 
natural resources of a dynamic coastal barrier island system;
     Protect and interpret the significant cultural resources 
of past and contemporary maritime history;
     Provide for public education and enrichment through 
proactive interpretation and scientific study; and
     Provide for sustainable use of recreation resources and 
opportunities.

Significance of Cape Lookout National Seashore

    Cape Lookout National Seashore is nationally recognized as an 
outstanding example of a dynamic natural coastal barrier island system. 
Cape Lookout is designated as a unit of the Carolinian-South Atlantic 
Biosphere Reserve, United Nations Educational, Scientific and Cultural 
Organizations (UNESCO) Man and the Biosphere Reserve Program. The park 
contains:
     Cultural resources rich in the maritime history of 
humankind's attempt to survive at the edge of the sea; and
     Critical habitat for endangered and threatened species and 
other unique wildlife including the legislatively protected wild horses 
of Shackleford Banks.

Authority and Jurisdiction

    Under the National Park Service's Organic Act of 1916 (Organic Act) 
(16 U.S.C. 1 et seq.) Congress granted the NPS broad authority to 
regulate the use of the Federal areas known as national parks. In 
addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the 
Secretary of the Interior, to ``make and publish such rules and 
regulations as he may deem necessary or proper for the use and 
management of the parks * * *.''
    16 U.S.C. 1a-1 states, ``The authorization of activities shall be 
conducted in light of the high public value and integrity of the 
National Park System and shall not be exercised in derogation of the 
values and purposes for which these various areas have been established 
* * *.'' 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 Clause and, as 
with the United States Coast Guard's authority, Commerce Clause 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.
    Motorboats and other watercraft have been in use at Cape Lookout 
National Seashore since the park was established in 1966. It is unknown 
when PWC use first began at the national seashore. In compliance with 
the settlement with the Bluewater Network, the national seashore closed 
to PWC use in April 2002. Personal watercraft are prohibited from 
launching or landing on any lands, boat ramps or docks within the 
boundaries of the national seashore. Personal watercraft may not be 
towed on trailers or carried on vehicles within national seashore 
boundaries except at the Harker's Island unit. This closure pertains to 
all of the barrier islands within the national seashore and the waters 
on the soundside of the islands within 150 feet of the mean low 
waterline. Outside of the park boundary, PWC use is governed by North 
Carolina PWC regulations. At present, the areas that were previously 
used by PWC

[[Page 77091]]

owners for landing are closed with signs.
    Prior to the PWC closure, all areas of the park were open to PWC 
use. However, the majority of PWC use was concentrated in two areas of 
the national seashore that receive the heaviest visitor day-use in the 
park: (1) On the sound-side of South Core Banks at the Lighthouse (from 
the Lighthouse dock through Barden Inlet and Lookout Bight), and (2) 
the Shackleford Banks from Wade Shores west to Beaufort Inlet. Personal 
watercraft use of ocean beaches was rare due to rough surf conditions 
in the ocean and the hazard of beaching PWC in the ocean surf. Some PWC 
use occurred along North and South Core Banks from Portsmouth Village 
at the northern end of the national seashore to the lighthouse. This 
use was infrequent because of the prevalence of marshes and general 
lack of sound-side beaches along Core Banks, the large expanse of open 
water in Core Sound between the barrier islands and mainland North 
Carolina, and the low population of the adjacent communities in the 
``down east'' as this portion of the national seashore is known 
locally. At public meetings held in October 2001, several participants 
indicated they had used their PWC to travel from locations such as 
Atlantic and Davis to the barrier islands. The popularity of Cape 
Lookout and Shackleford Banks where PWC use was concentrated can be 
attributed to the excellent soundside beaches in these areas, the 
attraction of the Cape Lookout lighthouse, traditional use of 
Shackleford Banks, their proximity to major inlets, and their close 
proximity to the three largest coastal population centers in Carteret 
County: Atlantic Beach, Morehead City, and Beaufort.

Resource Protection and Public Use Issues

Cape Lookout National Seashore Environmental Assessment

    As a companion document to this proposed rule, NPS has issued the 
Cape Lookout National Seashore, Personal Watercraft Use Environmental 
Assessment. The EA was open for public review and comment from January 
24, 2005 to February 24, 2005. Copies of the EA may be downloaded at 
http://www.nps.gov/calo/pphtml/documents.html or requested by 
telephoning (252) 728-2250. Mail inquiries should be directed to park 
headquarters: Cape Lookout National Seashore, 131 Charles Street, 
Harkers Island, NC 28531.
    The purpose of the EA was to evaluate a range of alternatives and 
strategies for the management of PWC use at Cape Lookout 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. The 
analysis assumed alternatives would be implemented beginning in 2003 
and considered a 10-year period, from 2003 to 2013.
    The EA evaluates three alternatives concerning the use of PWC at 
Cape Lookout National Seashore. The alternatives considered include:
     No-Action Alternative: Do not reinstate PWC use within the 
national seashore. No special regulation would be promulgated.
     Alternative A: Reinstate PWC use as previously managed 
under a special regulation.
     Alternative B: Reinstate PWC use under a special NPS 
regulation with additional management prescriptions.
    Based on the analysis prepared for PWC use at Cape Lookout National 
Seashore, alternative B is considered the environmentally preferred 
alternative because it would best fulfill park responsibilities as 
trustee of sensitive habitat; ensure safe, healthful, productive, and 
aesthetically and culturally pleasing surroundings; and attain a wider 
range of beneficial uses of the environment without degradation, risk 
of health or safety, or other undesirable and unintended consequences.
    This document proposes regulations to implement alternative B at 
Cape Lookout National Seashore.
    The NPS will consider the comments received on this proposal, as 
well as the comments received on the EA when making a final 
determination. In the final rule, the NPS will implement alternative B 
as proposed, or choose a different alternative or combination of 
alternatives. Therefore, the public should review and consider the 
other alternatives contained in the EA when making comments on this 
proposed rule.
    The following summarizes the predominant resource protection and 
public use issues associated with PWC use at Cape Lookout National 
Seashore. Each of these issues is analyzed in the Cape Lookout National 
Seashore, Personal Watercraft Use Environmental Assessment.

Water Quality

    Most research on the effects of PWC on water quality focuses on the 
impacts of two-stroke engines generally, and it is assumed that any 
impacts caused by these engines also apply to two-stroke engines in 
PWC. Two-stroke engines (and PWC) discharge a gas-oil mixture into the 
water. Fuel used in PWC engines contains many hydrocarbons, including 
benzene, toluene, ethylbenzene, and xylene (collectively referred to as 
BTEX). Polycyclic aromatic hydrocarbons (PAHs) also are released from 
boat engines, including those in PWC. These compounds are not found 
appreciably in the unburned fuel mixture, but rather are products of 
combustion. Discharges of all these compounds--BTEX and PAHs--have 
potential adverse effects on aquatic life and human health if present 
at high enough concentrations. A common gasoline additive, methyl 
tertiary butyl ether (MTBE) is also released with the unburned portion 
of the gasoline. The PWC industry suggests that although some unburned 
fuel does enter the water, the fuel's gaseous state allows it to 
evaporate readily.
    A typical conventional (i.e., carbureted) two-stroke PWC engine 
discharges as much as 30% of the unburned fuel mixture into the 
exhaust. At common fuel consumption rates, an average two-hour ride on 
a PWC may discharge three gallons (11.34 liters) of fuel into the 
water. The Bluewater Network states that PWC can discharge between 
three and four gallons of fuel over the same time period. However, the 
newer four-stroke technology can reduce these emissions to meet current 
regulatory standards for both water and air quality. The percentage of 
emissions of BTEX and MTBE compounds from four-stroke inboard or 
outboard motors is less than those from a two-stroke outboard engine or 
an existing two-stroke PWC engine.
    Under the proposed regulation, based on alternative B in the EA, 
PWC use would be allowed within ten designated access areas, as 
identified in the ``Alternatives'' chapter of the EA and in the 
proposed rule. Personal watercraft within these access areas would be 
restricted to a perpendicular approach to the shoreline at flat-wake 
speed. Personal watercraft operation would be prohibited in park waters 
outside of the access areas. All state regulatory requirements would 
continue to apply. Because of the requirement for a perpendicular 
approach to the shoreline at flat-wake speed under this alternative, 
each PWC trip was assumed to be of only 5 minutes duration within park 
jurisdictional waters at 10% of full-throttle.
    The results of the water quality analysis for PWC activity (table 
24 of the EA) shows that for all discharged pollutants evaluated, the 
ecotoxicological threshold volumes estimated for 2003 and 2013 would be

[[Page 77092]]

well below volumes of water available at the study areas. Threshold 
volumes are less than an acre-foot, while water volumes in the park 
range from 3,890 to 6,810 acre-feet. Impacts on aquatic organisms would 
be expected to be negligible for all pollutants evaluated.
    Threshold volumes for human health benchmarks of benzo(a)pyrene and 
benzene estimated for 2003 and 2013 are also less than an acre-foot, 
which is well below volumes of water available in the study areas. 
Impacts on human health would be expected to be negligible for all 
pollutants evaluated. Mixing, flushing, and the resulting dilution of 
park waters by adjacent waters would further reduce pollutant 
concentrations. Tidal currents at Beaufort and Ocracoke inlets reach 
speeds of up to 4 knots. Incoming tides more than double the available 
water volume. Outgoing tides transport soluble pollutants out of park 
waters to the Atlantic Ocean.
    Overall, water quality impacts due to PWC emissions of organic 
pollutants in both 2003 and 2013 would be negligible.
    Cumulative impacts associated with the implementation of 
alternative B under the proposed regulation would result from the 
cumulative activities taking place around Cape Lookout, including other 
motorized watercraft that use nearby waters and point and non-point 
sources of urban pollutants. Based on 2003 observations, on a typical 
peak use day, motorized watercraft are assumed to be distributed as 
follows: 565 at Shackleford Banks, 380 at South Core Banks, and 20 at 
North Core Banks. Assuming a 1.6% average annual increase (except for 
ferries), non-PWC numbers would increase by 2013 to 640 at Shackleford 
Banks, 430 at South Core Banks, and 24 at North Core Banks.
    Threshold volumes calculated for all motorized watercraft are shown 
in table 25 of the EA. For all discharged pollutants evaluated, the 
ecotoxicological threshold volumes estimated for 2003 and 2013 would be 
well below volumes of water available in park jurisdictional waters in 
the study areas. Threshold volumes would be 37 acre-feet or less, while 
park jurisdictional water volumes range from 3,890 to 6,810 acre-feet. 
Impacts on aquatic organisms are expected to be negligible for all 
pollutants evaluated.
    Threshold volumes for risks to human health from benzo(a)pyrene and 
benzene would also be well below the jurisdictional volumes in all 
areas in 2003 and 2013. Threshold volumes would be 44 acre-feet or 
less, while park jurisdictional water volumes range from 3,890 to 6,810 
acre-feet. Risks to human health from benzo(a)pyrene and benzene, 
largely attributable to non-PWC use, would be expected to be negligible 
for all areas in 2003 and 2013.
    Under the proposed regulation, water quality impacts from PWC use, 
based on ecotoxicological and human health benchmarks, would be 
negligible for all pollutants in all areas in both 2003 and 2013. 
Cumulative water quality impacts from all motorized watercraft under 
the proposed regulation, based on ecotoxicological benchmarks, would be 
negligible for all pollutants in all areas in both 2003 and 2013. 
Cumulative impacts on human health from all motorized watercraft would 
be negligible in 2003 and 2013. In 2013, cumulative water quality 
impacts from watercraft are expected to be lower than in 2003 due to 
reduced emission rates.
    Therefore, implementation of this proposed regulation would not 
result in an impairment of water quality.

Air Quality

    Personal watercraft emit various compounds that pollute the air. Up 
to one third of the fuel delivered to the typical two-stroke carbureted 
PWC engine is unburned and discharged; the lubricating oil is used once 
and is expelled as part of the exhaust; and 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). Personal watercraft also emit fuel 
components such as PAH that are known to cause adverse health effects.
    Even though PWC engine exhaust is usually routed below the 
waterline, a portion of the exhaust gases go into the air. These air 
pollutants may adversely impact park visitor and employee health as 
well as sensitive park resources. For example, in the presence of 
sunlight, VOC and NOX emissions combine to form ozone 
(O3). O3 causes respiratory problems in humans, 
including coughs, airway irritation, and chest pain during inhalations. 
O3 is also toxic to sensitive species of vegetation. It 
causes visible foliar injury, decreases plant growth, and increases 
plant susceptibility to insects and disease. CO can affect humans as 
well. It interferes with the oxygen carrying capacity of blood, 
resulting in lack of oxygen to tissues. NOX and PM emissions 
associated with PWC use can degrade visibility. NOX can also 
contribute to acid deposition effects on plants, water, and soil. 
However, because emission estimates show that NOX from PWC 
are minimal (less than 5 tons per year), acid deposition effects 
attributable to PWC use are expected to be minimal.
    Impacts to human health. Under the proposed regulation, special use 
areas would be identified where PWC could access Shackleford Banks, 
South Core Banks, and North Core Banks. Personal watercraft access 
could only access the beach in these areas and approach only 
perpendicular to the beach at flat-wake speeds. Personal watercraft use 
and access would be prohibited in all other areas of the national 
seashore. Safety and operating restrictions would be dictated by the 
North Carolina PWC regulations outlined under alternative A and 
additional NPS operating restrictions.
    Human-health air quality impacts from the implementation of 
alternative B under this proposed regulation would be similar to those 
described for alternative A in the EA for 2003 and 2013 and would be 
negligible for CO, PM10, HC, and NOX. The human 
health risk from PAH would also be negligible in 2003 and 2013. The 
additional restrictions would not change the type of PWC in use, nor 
increase or decrease the number of PWC forecasted. Assuming that PWC 
are primarily used for transportation, the estimated daily duration of 
use of an individual PWC would decrease from 10 minutes under 
alternative A to 5 minutes under alternative B for both 2003 and 2013. 
Therefore, impacts would be negligible and at even lower levels than 
under alternative A.
    Under the proposed regulation, cumulative impacts to human health 
from all boating use in the national seashore would not change from 
alternative A. Adverse impacts on human health from air pollutants in 
2003 would be negligible for CO, PM10, NOX, and 
HC. In 2013, levels would remain negligible for CO, PM10, 
NOX, and HC.
    Because no reduction in PWC use is expected, the proposed 
regulation would result in negligible air quality impacts on human 
health from PWC emissions, similar to alternative A. The additional 
management prescriptions would slightly reduce PWC emissions as 
compared with alternative A. Negligible adverse impacts from PWC 
emissions for CO, PM10, HC, and NOX would occur 
in 2003 and 2013. The risk from PAH would also be negligible in 2003 
and 2013.
    Cumulative adverse impacts from PWC and other boating emissions at 
the national seashore would be the same as for alternative A. Adverse 
impacts on human health from air pollutants in 2003 would be negligible 
for CO, PM10, NOX, and HC. In 2013, levels would 
remain negligible for CO, PM10, NOX, and HC. 
Regional ozone emissions

[[Page 77093]]

would improve due to a reduction in HC emissions.
    This proposed regulation would have negligible adverse impacts on 
human health air quality conditions, with future reductions in CO and 
HC emissions due to improved emission controls. The PWC contribution to 
emissions of HC is estimated to be less than 5% of the cumulative 
boating emissions in 2003 and 2013. All impacts would be long-term.
    Therefore, implementation of this proposed regulation would not 
result in an impairment of air quality as it relates to human health.
    Impacts to air quality related values. Under the proposed 
regulation, the annual number of PWC using the Cape Lookout National 
Seashore would be the same as alternative A. Additional management 
prescriptions under the proposed regulation, including the adoption of 
special use areas, would not affect PWC use numbers and potential 
future increases. The predicted emission levels and impacts of 
continued PWC use to air quality related values would be similar to 
those described for alternative A based on annual emission rates. 
Assuming that PWCs are primarily used for transportation, the estimated 
daily duration of PWC use of an individual PWC would decrease from 10 
minutes under alternative A to 5 minutes under alternative B for both 
2003 and 2013. Impacts on air quality related values from PWC in 2003 
and 2013 would be negligible.
    Cumulative adverse impacts on air quality related values at the 
national seashore in both 2003 and 2013 would be the same as described 
under alternative A. HC contribution to ozone-related air quality 
values would be negligible. In 2013, NOX emissions would 
slightly increase but would remain well below 50 tons per year, and 
there would be a reduction in HC emissions, resulting in a reduced 
contribution to ozone levels relative to 2003. Predicted year 2013 
regional SUM06 ozone levels would be in the same range as year 2003; 
the impact would remain negligible.
    The impacts of the proposed regulation on air quality related 
values would be the same as alternative A. Emissions of each pollutant 
would be substantially less than 50 tons per year in both 2003 and 
2013. Negligible adverse impacts on air quality related values from PWC 
would occur in both 2003 and 2013. In both 2003 and 2013, adverse 
impacts from cumulative emissions from motorized boats and PWC would be 
negligible. This conclusion is based on calculated levels of pollutant 
emissions (table 31 of the EA), regional SUM06 values, and the lack of 
observed visibility impacts or ozone-related plant injury in the 
national seashore.
    Therefore, implementation of this proposed regulation would not 
result in an impairment of air quality related values.

Soundscapes

    The primary soundscape issue relative to PWC use is that other 
visitors may perceive the sound made by PWC as an intrusion or 
nuisance, thereby disrupting their experiences. This disruption is 
generally short-term because PWC are generally used as transportation 
to and from the islands. However, if PWC use changed from mostly 
transport to more extended recreational riding or if PWC use would 
increase and concentrate at popular visitation areas, such as 
Shackleford Banks and the lighthouse, related noise would become more 
of an issue, particularly during certain times of the day. 
Additionally, visitor sensitivity to PWC noise varies from kayakers 
(more sensitive) to swimmers at popular beaches (less sensitive).
    Under the proposed regulation, PWC would be reinstated at Cape 
Lookout in specific locations. Personal watercraft would have access to 
areas that had been historically popular with PWC users; restrictions 
under this proposed regulation were based on safety reasons or the need 
to protect natural resources, particularly marshlands, which PWC avoid. 
However, all PWC operating within the special use areas defined under 
this proposed regulation would be required to operate at flat-wake 
speed within the national seashore's boundaries, which includes all 
waters from the mean low water line on the oceanside to 150 feet beyond 
the mean low water line. In addition, the area consisting predominantly 
of maritime forest along the soundside of Shackleford Banks would be 
closed to PWC use for safety reasons due to the high amount of visitor 
use in this area. Therefore, visitors using this area of Shackleford 
Banks would not experience adverse impacts because of the absence of 
PWC noise. Impacts throughout Shackleford Banks would be adverse, 
short-term, and minor.
    The flat-wake speed restrictions would also lessen adverse impacts 
in the waters adjacent to the Cape Lookout lighthouse and the northern 
areas of the national seashore. Personal watercraft would be permitted 
access at specific locations along Core Sound, which were historically 
used by PWC in the past. Because most of the Core Sound consists of 
marshlands, PWC use along the South and North Core Banks was low before 
the ban, even during summer holiday weekends. For these reasons, noise 
impacts in the national seashore's northern reaches would be adverse, 
short-term, but negligible.
    Combining PWC noise with other noise sources, such as other 
motorized vessels, beach activities, and off-road vehicle use, would 
increase the overall sound level at the national seashore. However, 
limiting PWC to flat-wake speed in all permitted areas of the national 
seashore would reduce adverse noise impacts considerably. Increased 
visitation expected to the Cape Lookout lighthouse would result in 
increased noise from both motorboats and PWC accessing this area. 
Therefore, cumulative impacts would be adverse, short-term, and 
negligible to minor under this proposed regulation, depending on 
location.
    Personal watercraft would be permitted in areas historically 
preferred by PWC users under this proposed regulation, but only at 
flat-wake speed, resulting in adverse, short-term, negligible to minor 
impacts, depending on location. Cumulative impacts would be adverse, 
short-term, and negligible to minor under this proposed regulation, 
depending on location.
    Therefore, implementation of this proposed regulation would not 
result in an impairment of the national seashore's soundscape.

Shoreline and Submerged Aquatic Vegetation

    Personal watercraft are able to access areas that other types of 
watercraft may not, which may cause direct disturbance to vegetation. 
Indirect impact to shoreline vegetation may occur through trampling if 
operators disembark and engage in activities on shore. In addition, 
wakes created by PWC may affect shorelines through erosion by wave 
action.
    Personal watercraft are very maneuverable and can operate well in 
waters less than a foot deep. Since most PWC rides begin in shallow 
water, the process of getting started from a standstill results in a 
substantial amount of water being directed towards the bottom at high 
velocity, potentially disturbing the sediment and submerged aquatic 
vegetation in shallow water areas. Disturbance of submerged aquatic 
vegetation beds diminishes their ecological value and productivity, 
affecting the entire ecosystem. As PWC are frequently operated in 
shallow areas in a repetitive manner, impacts on submerged aquatic 
vegetation beds can be severe. Potential direct impacts on submerged 
aquatic vegetation beds by

[[Page 77094]]

PWC can occur through collision, uprooting of submerged aquatic 
vegetation, and alteration of natural sediments. Potential indirect 
impacts of PWC use include adverse effects on the growth and health of 
submerged aquatic vegetation beds as a result of increased turbidity, 
decreased available sunlight, and deposition of suspended sediment on 
plants.
    Under this proposed regulation, PWC use would be allowed within 10 
designated access areas, as identified in the ``Alternatives'' chapter 
of the EA and the proposed rule language. Personal watercraft operation 
within these access areas would be restricted to a perpendicular 
approach to the shoreline at flat-wake speed. Personal watercraft would 
be prohibited in park waters outside of the access areas. All state 
regulatory requirements would continue to apply.
    These 10 designated access areas were chosen to avoid marshes and 
high-congestion beach areas. Indirect impacts from PWC use to shoreline 
vegetation would occur but would be limited to the designated access 
areas and would therefore be negligible to minor and short-term. 
Impacts on shoreline vegetation associated with low salt marsh habitats 
would not occur, since PWC use would be restricted in these areas.
    As PWC would be prohibited in park waters outside of the access 
areas, submerged aquatic vegetation beds in these areas would not be 
directly impacted by PWC use. Most of the access areas do not contain 
submerged aquatic vegetation beds, so PWC operation in these areas 
would have little potential to adversely impact this habitat. 
Additionally, the flat-wake speed restriction would minimize the 
potential for PWC to damage submerged aquatic vegetation beds through 
collision or uprooting and would reduce sediment resuspension and its 
detrimental effects. Reinstating PWC use in park waters and restricting 
their operation to a flat-wake perpendicular approach to the shoreline 
in designated access areas would result in negligible, indirect short- 
and long-term impacts on submerged aquatic vegetation beds.
    Under this proposed regulation, PWC use would be limited to flat-
wake speed within ten designated access areas, resulting in a 
negligible contribution to cumulative impacts on shoreline vegetation 
and submerged aquatic vegetation beds. Adverse direct and indirect 
cumulative effects associated with future increased use by motorized 
watercraft, including PWC, would be minor around landing areas and in 
tidal marsh habitats. Non-PWC motorized vessels would be able to 
operate throughout park waters, including areas where submerged aquatic 
vegetation beds occur. Potential direct impacts on submerged aquatic 
vegetation beds by all motorized vessels include propeller scarring, 
collision, uprooting, and sediment alteration. Potential indirect 
impacts include increased turbidity, decreased available sunlight, and 
suspended sediment deposition on submerged aquatic vegetation beds. 
However, both PWC and non-PWC trip lengths are short and speeds are 
low, which reduces the likelihood of adverse impacts. As PWC are 
outnumbered by non-PWC motorized vessels in park waters by more than 10 
to 1, and most PWC use would not occur around submerged aquatic 
vegetation beds, nearly all impacts on shoreline vegetation and 
submerged aquatic vegetation beds would be attributed to non-PWC 
vessels.
    Impacts on shoreline vegetation and submerged aquatic vegetation 
beds from all types of motorized vessels under this proposed regulation 
are expected to be minor, direct and indirect, and short- and long-
term.
    Reinstating PWC use in park waters and restricting their operation 
to a flat-wake perpendicular approach to the shoreline in designated 
access areas is expected to have negligible, indirect short-term 
impacts on submerged aquatic vegetation beds and negligible to minor 
short-term impacts on shoreline vegetation. Non-PWC vessels would still 
be able to access submerged aquatic vegetation beds under this 
alternative, and would be responsible for nearly all of the cumulative 
motorized vessel impacts on submerged aquatic vegetation beds. 
Motorized vessels, including PWC, are expected to have minor, direct 
and indirect, short- and long-term cumulative impacts on shoreline 
vegetation and submerged aquatic vegetation beds.
    Therefore, implementation of this proposed rule would not result in 
an impairment of shoreline vegetation and submerged aquatic vegetation 
beds.

Wildlife and Wildlife Habitat

    Some research suggests that PWC use affects wildlife by causing 
interruption of normal activities, alarm or flight, avoidance or 
degradation of habitat, and effects on reproductive success. This is 
thought to be a result of a combination of PWC speed, noise, and 
ability to access sensitive areas, especially in shallow-water depths.
    Waterfowl and nesting birds are the most vulnerable to PWC. Fleeing 
a disturbance created by PWC may force birds to abandon eggs during 
crucial embryo development stages, prevent nest defense from predators, 
or contribute to stress and associated behavior changes. Potential 
impacts on sensitive species, such as loggerhead sea turtles and piping 
plover, are documented in the ``Threatened, Endangered, or Special 
Concern Species'' section.
    Aquatic wildlife react to high levels of underwater noise in 
various ways, depending on the species, exposure period, intensities, 
and frequencies. Because of the way PWC are used, noise is usually 
produced at various intensities, and this continual change in loudness 
during normal use makes PWC-generated noise much more disturbing than 
the constant sounds of conventional motorboats. The sudden increases in 
noise levels can startle aquatic wildlife, triggering flight responses. 
In areas of high boating use, the energy cost to aquatic fauna due to 
noise-induced stresses could be significant, potentially affecting 
their survival.
    Intense sounds can inflict pain and damage the sensory cells of the 
ears of mammalian species, and there is concern that similar sounds can 
impair hearing in aquatic wildlife species. One of the few direct 
studies on the impact of sound on fishes conducted under laboratory 
conditions found that when fish were subjected to high decibel levels 
for four hours, some sensory cells of the ears were damaged. This 
damage does not show up until a few days after exposure, and it is a 
short-term effect (regeneration did occur after a few days). Fish 
exposed to high decibel noise levels may have a short-term disadvantage 
in detecting predators and prey, potentially adversely affecting their 
survival. In addition, several species of fish in the drum family 
produce sounds as part of their mating behavior, so short-term hearing 
damage could negatively affect reproduction. Loggerhead turtle nesting 
has been shown to be negatively affected by loud noises such as close 
overflights by aircraft, but it is unknown at what frequencies and 
intensity noise might affect sea turtles or damage their hearing.
    Although marine mammals show a diverse behavioral range that can 
obscure correlations between a specific behavior and the impact from 
noise, experts from around the country have voiced concern that PWC 
activity can have negative impacts on marine mammals, disturbing normal 
rest, feeding, social interactions, and causing flight. Toothed whales 
(including dolphins), produce sounds across a broad range of 
frequencies for

[[Page 77095]]

communication as well as echolocation, a process of creating an 
acoustic picture of their surroundings for the purpose of hunting and 
navigation. Watercraft engine noise can mask sounds that these animals 
might otherwise hear and use for critical life functions and can cause 
temporary hearing threshold shifts. Bottlenose dolphins exposed to less 
than an hour of continuous noise at 96 dB experienced a hearing 
threshold shift of 12 to 18 dB, which lasted hours after the noise 
terminated. A hearing threshold shift of this degree would 
substantially reduce a dolphin's echolocation and communication 
abilities. In 1998 C. Perry reviewed numerous scientific studies 
documenting increased swimming speed, avoidance, and increased 
respiration rates in whales and dolphins as a result of motorized 
watercraft noise. Whales have been observed to avoid man-made noise of 
115 dB, and at higher frequencies, whales become frantic, their heart 
rates increase, and vocalization may cease.
    Bottlenose dolphins and manatees may be present in the waters 
surrounding Cape Lookout National Seashore in the summer months and 
could be affected by PWC-generated noise. Kemp's ridley, loggerhead, 
leatherback, and green sea turtles occur in the waters around Cape 
Lookout National Seashore, and three of these species have nested on 
park beaches. In addition, more than 200 species of fish probably occur 
in the waters surrounding Cape Lookout National Seashore. Essential 
fish habitat occurs in the vicinity of Cape Lookout for a number of 
commercially and recreationally important fish (refer to the ``Aquatic 
Wildlife'' section in the ``Affected Environment'' chapter of the EA).
    This proposed regulation would establish 10 special use areas to 
provide PWC access within the Cape Lookout National Seashore 
boundaries. Personal watercraft use would be prohibited in all other 
areas of the national seashore.
    Implementing flat-wake zones in these areas would limit adverse 
impacts on wildlife within the national seashore boundaries. Impacts of 
PWC use associated with noise and potential collision impacts with 
aquatic wildlife would be minimized within national seashore boundaries 
with the reduction of allowable speeds and adverse noise fluctuations. 
Negligible, short-term adverse indirect impacts on terrestrial and 
aquatic wildlife and habitat are expected under the proposed 
regulation, as noise would be reduced with the implementation of the 
flat-wake zone.
    In areas previously open to PWC use that are not within the 10 
special use areas, adverse impacts would be eliminated or reduced as 
PWC noise would be eliminated from these areas and would not create a 
disturbance to wildlife and wildlife habitats. As PWC would be 
prohibited in park waters outside of the access areas, aquatic wildlife 
in these areas would not be impacted by PWC use. In the designated 
access areas, the PWC flat-wake speed requirement and perpendicular 
approach would not generate waves and would minimize sediment 
resuspension and damage to seagrass beds. The flat-wake speed limit 
would further minimize PWC engine noise and fuel emissions to water. 
Aquatic wildlife species inhabiting the shallow waters and seagrass 
beds within the access areas would experience negligible impacts from 
PWC operation.
    Reinstating PWC use in park waters and restricting their operation 
to a flat-wake perpendicular approach to the shoreline in designated 
access areas is expected to have short-term, negligible, direct and 
indirect adverse impacts on aquatic wildlife species and habitats.
    Under the proposed regulation, motorized vessels, including PWC, 
would have adverse impacts on aquatic wildlife and habitats in park 
waters, especially in high-use areas such as Shackleford Banks and 
Lookout Bight. Because non-PWC vessels vastly outnumber PWC in park 
waters, most cumulative boating impacts on aquatic wildlife would be 
caused by non-PWC vessels and would be similar to those described under 
alternative A. Restricting PWC to access areas and flat-wake speed 
would result in a negligible contribution to cumulative impacts. 
Cumulative impacts on dolphins, sea turtles, fish and shellfish, and 
their habitats from all motorized vessel use are expected to be short-
term, minor, direct and indirect, and adverse.
    Impacts on terrestrial wildlife, specifically birds, from all 
motorized vessel use are expected to be short-term, negligible to 
minor, direct and indirect, and adverse. Noise levels and the ability 
of other motorized watercraft users to access Shackleford Banks and 
Lookout Bight are expected to adversely affect terrestrial wildlife and 
shorebirds and waterfowl that may utilize the landing area and adjacent 
areas by causing alarm or flight responses. Effects are expected to be 
negligible to minor because these areas have a generally high level of 
visitation, regardless of PWC usage, and species sensitive to a high 
level of noise and human activity would probably not regularly use 
these areas or immediately adjacent habitats during high use periods.
    The proposed regulation would minimize potential adverse impacts of 
PWC use in the 10 designated special use areas to negligible to minor, 
short-term, adverse impacts. The flat-wake requirements would reduce 
the level of PWC disturbance in the restricted areas and in nearby 
marshes. Reinstating PWC use in park waters and restricting their 
operation to a flat-wake perpendicular approach to the shoreline in 
designated access areas is expected to have short-term, negligible to 
minor, direct and indirect adverse impacts on terrestrial and aquatic 
wildlife species and habitats.
    Cumulative impacts associated with an increase in all types of 
motorized vessel use are expected to be short-term, negligible to 
minor, direct and indirect, and adverse.
    Therefore, implementation of this proposed regulation would not 
result in an impairment of terrestrial or aquatic wildlife or habitats 
in park waters.

Threatened, Endangered, or Special Concern Species

    The Endangered Species Act (16 U.S.C. 1531 et seq.) mandates that 
all federal agencies consider the potential effects of their actions on 
species listed as threatened or endangered. If the NPS determines that 
an action may adversely affect a federally listed species, consultation 
with the U.S. Fish and Wildlife Service is required to ensure that the 
action will not jeopardize the species' continued existence or result 
in the destruction or adverse modification of critical habitat.
    At Cape Lookout National Seashore it has been determined that none 
of the alternatives are likely to adversely affect any of the listed 
species that are known to occur or may occur within or adjacent to PWC 
activity within the boundaries of Cape Lookout National Seashore.
    National Park Service Management Policies 2001 state that potential 
effects of agency actions will also be considered on state or locally 
listed species. The NPS is required to control access to critical 
habitat of such species, and to perpetuate the natural distribution and 
abundance of these species and the ecosystems upon which they depend.
    The species at Cape Lookout National Seashore that have the 
potential to be affected by proposed PWC management alternatives 
include species that are known to inhabit or are likely to inhabit the 
area, plus those that could possibly be found in the area, but would 
most likely be transients or migrants.

[[Page 77096]]

    Under the proposed regulation, PWC use would be allowed within ten 
designated access areas, as identified in the ``Alternatives'' chapter 
of the EA and in the proposed rule language. Personal watercraft 
operation within these access areas would be restricted to a 
perpendicular approach to the shoreline at flat-wake speed. Personal 
watercraft operation would be prohibited in park waters outside of the 
access areas. All state regulatory requirements would continue to 
apply. This proposed regulation may affect, but is not likely to 
adversely affect, federally listed threatened or endangered terrestrial 
species in the Cape Lookout National Seashore. Effects to federally 
listed threatened or endangered species associated with PWC use under 
the proposed regulation would be similar to those discussed under 
alternative A. However, the potential for impacts would be further 
minimized due to reduced levels of activity and use. Enforcement of 
flat-wake zones in the ten designated special use areas would decrease 
potential for near-shore noise associated with the PWC use to adversely 
affect protected species such as the piping plover.
    As PWC operation would be prohibited in park waters outside of the 
access areas, aquatic special concern species in these areas would not 
be impacted by PWC use. Manatees and whales are not likely to be 
present in park waters during the summer when PWC use is high. Sea 
turtles and the Carolina diamondback terrapin are likely to be present 
in park waters during the summer. These turtles may be affected but are 
not likely to be adversely affected by PWC use under this proposed 
regulation, because most park waters would be off-limits to PWC and 
because the flat-wake speed restriction would further reduce the 
potential for collision, as well as reducing engine noise production 
and fuel discharge to water.
    Reinstating PWC use in park waters and restricting their operation 
to a flat-wake perpendicular approach to the shoreline in designated 
access areas may affect but is not likely to adversely affect aquatic 
special concern species.
    The majority of piping plover nests are located on North Core 
Banks, which accounted for 10 out of 14 nesting pairs in 2003. The 
majority of PWC activity occurs at Shackelford Banks and the lighthouse 
area at South Core Banks. Sea beach amaranth, piping plover nesting, 
and gull-billed tern nesting areas are all roped off where present. 
These species generally occur in areas of low PWC use, and PWC use may 
affect but is not likely to adversely affect these species.
    Under this proposed regulation, PWC use would be limited to flat-
wake speed within designated access areas, resulting in a negligible 
contribution to cumulative impacts. Non-PWC motorized vessels would be 
able to operate throughout park waters. Because manatees are not common 
in the area and northern right whales and humpback whales are not 
likely to occur in park waters in the summer, PWC and other motorized 
watercraft use may affect but are not likely to adversely affect these 
species. As previously mentioned, trip lengths for PWC and non-PWC are 
short, and due to the park's very shallow waters, operation of these 
vessels primarily consists of slow speed operation. Because of these 
factors, PWC and non-PWC vessel use may affect but is not likely to 
adversely affect sea turtles or Carolina diamondback terrapins. Non-PWC 
vessels outnumber PWC in park waters by more than 10 to 1, so any 
motorized vessel impacts on special concern species would be 
predominantly attributed to non-PWC vessels.
    Due to the location of sensitive species and the areas of high PWC 
use and other motorized watercraft being typically separate, PWC use 
and other motorized watercraft may affect but are not likely to 
adversely affect special concern species.
    Reinstating PWC use in park waters and restricting their operation 
to a flat-wake perpendicular approach to the shoreline in designated 
access areas may affect but are not likely to adversely affect manatees 
or whales in park waters, as these species are not present in areas or 
during seasons of peak PWC use. Personal watercraft and other motorized 
vessel use may affect but is not likely to adversely affect sea turtles 
or Carolina diamondback terrapins because of the slow vessel speeds and 
short trip lengths.
    Therefore, implementation of this alternative would not result in 
an impairment of aquatic special concern species in park waters.

Visitor Use and Experience

    Some research suggests that PWC use is viewed by some segments of 
the public as a nuisance due to their noise, speed, and overall 
environmental effects, while others believe that PWC are no different 
from other motorcraft and that people have a right to enjoy the sport. 
The primary concern involves changes in noise, pitch, and volume due to 
the way PWC are operated. Additionally, the sound of any watercraft can 
carry for long distances, especially on a calm day.
    Under this proposed regulation, PWC would have access to 10 areas 
distributed along the entire national seashore. These areas include 
those that were historically popular with PWC users, such as the Cape 
Lookout lighthouse area and the west end of Shackleford Banks. Fifty-
one miles of the seashore's sound side and 56 miles of the oceanside 
would be closed to PWC use. Five of a total of 10 miles (50%) of 
soundside sandy beaches would be available to PWC use.
    Impacts on PWC Users. Personal watercraft users would experience 
beneficial impacts, as they would have access to those areas that were 
historically popular with PWC riders. Personal watercraft would be 
restricted from the marshlands along the Core Banks, which they avoided 
anyway for practical reasons. With the exception of the closed areas 
between the two toilet facilities on Shackleford Banks and those in the 
lighthouse area of South Core Banks, PWC would have access to many of 
the areas frequented by PWC prior to the ban. Therefore, benefits would 
be similar to having access to the entire national seashore, with the 
exception of the restricted area on Shackleford and near the 
lighthouse. Impacts would be beneficial, long-term, and minor since 
approximately only 1% of all visitors would be affected.
    Impacts on Other Boaters. Personal watercraft would return to 
popular areas such as the Cape Lookout lighthouse area and Shackleford 
Banks, with the exception of the restricted section. Under this 
proposed regulation, PWC users would be required to operate at flat-
wake speed within park waters, providing a beneficial impact to all 
boaters, particularly kayakers and canoeists, who would be most 
affected by wakes and noise. Canoeists and kayakers paddling the 
marshlands along the Core Sound would experience negligible impacts 
from reinstated PWC use because PWC would be prohibited in marshland 
areas. Although some complaints have been submitted regarding PWC use 
in these areas, PWC have primarily avoided marshlands in the past. 
Boaters in the national seashore's northern reaches would experience 
few, if any, impacts, given the extremely low PWC use in this area in 
the past. Paddlers and motor boat operators using the west end of 
Shackleford near Beaufort Inlet or the Cape Lookout lighthouse area 
would experience the most adverse impacts due to congestion in these 
popular areas. Other motorized boat users would also interact with PWC, 
and may

[[Page 77097]]

experience adverse impacts for similar reasons. However, motorized boat 
users may find PWC use more compatible with their type of recreation. 
Depending on location, overall impacts on other boaters would be 
adverse, short- and long-term, and negligible to minor due to flat-wake 
PWC speed restrictions in park waters.
    Impacts on Other Non-PWC Users. As with other boaters, other non-
PWC users would experience benefits from flat-wake speed restrictions 
under this proposed regulation. The PWC restricted area along 
Shackleford Banks between the two toilet facilities would provide 
beneficial impacts on visitors in this area. A stretch of maritime 
forest fronts the sound in this restricted area, providing a natural, 
pristine wilderness setting that is popular with campers (Wade's Shore 
is located near the eastern toilet facility on Shackleford). 
Restricting PWC in this area would enhance wilderness values there, 
including preservation of the primeval character of the wilderness, 
natural conditions (including lack of man-made noise), outstanding 
opportunities for solitude, and a primitive recreational experience. 
Because most non-fishing visitors come to the national seashore seeking 
a remote beach experience, restricted PWC use under this alternative 
would provide a beneficial impact to these visitors. In addition, 89% 
of respondents during public scoping indicated that they were in favor 
of banning PWC from the national seashore. Therefore, a majority of 
visitors may perceive PWC use as incompatible with their experience at 
Cape Lookout National Seashore and would prefer restricted access, even 
though PWC represented only a small percentage of national seashore 
visitors.
    Restricting PWC within national seashore waters to flat-wake speed 
would also be particularly beneficial to swimmers, anglers, and beach 
combers, who may be more likely to experience adverse impacts from PWC 
use than motorized boat users.
    Short-term impacts on all visitors would occur depending on the 
duration of exposure to PWC during a given visit. Visitors would also 
experience long-term impacts in that PWC use would have restricted 
access to the national seashore indefinitely into the future.
    Cumulative impacts would be similar to those described under 
alternative A in the EA regarding an increase in motorized boaters 
accessing the Cape Lookout lighthouse starting in 2005. However, flat-
wake speed restrictions under this alternative would provide a benefit 
in areas of increasing congestion. An increase in boaters in Barden 
Inlet, combined with restricted, reinstated PWC use, would result in an 
adverse impact in this area. Combining restricted PWC use with other 
motorized boat use would result in an adverse impact. Even though only 
1% of visitors used PWC to access the national seashore in the past, 
impact levels would be moderate due to expected increases in 
visitation.
    Reinstating PWC use with restricted access would result in 
beneficial impacts on PWC users, but adverse, short- and long-term 
impacts on other boaters (motorized and nonmotorized) ranging from 
negligible to moderate depending on location and type of boat use. 
Cumulative impacts would be adverse, short- and long-term, and 
negligible due to the historically low numbers of PWC at the national 
seashore and additional PWC use restrictions.

Visitor Conflict and Safety

    Industry representatives report that PWC accidents decreased in 
some states in the late 1990s. The National Transportation Safety Board 
reported that in 1996 PWC represented 7.5% of state-registered 
recreational boats but accounted for 36% of recreational boating 
accidents. In the same year PWC operators accounted for more than 41% 
of the people injured in boating accidents. Personal watercraft 
operators accounted for approximately 85% of the persons injured in 
accidents studied in 1997. Only one PWC-related injury has been 
reported at Cape Lookout National Seashore, although much of the waters 
in the area are outside of park boundaries and many incidents likely 
are not reported to any agency at all. The park currently does little 
or no water-based enforcement, which would be necessary to better 
identify PWC/visitor safety issues. Very few PWC violations have been 
documented by national seashore staff.
    Personal watercraft speeds, wakes, and operations near other users 
can pose hazards and conflicts, especially to canoeists and sea 
kayakers. Kayakers and canoeists have complained about PWC, and other 
visitors have complained that PWC use conflicts with swimming and other 
beach activities.
    Under this proposed regulation, PWC would be reinstated in 10 
special use areas throughout the national seashore. All visitors would 
experience beneficial impacts due to restricting PWC to flat-wake 
speeds when operating within national seashore boundaries, which should 
reduce conflicts between PWC and other users, particularly swimmers, 
anglers, and nonmotorized boaters. In addition, park staff would 
support the state boater education program; if such support resulted in 
more PWC operators enrolling in the program, all visitors could 
experience beneficial impacts as 83% of all PWC operators involved in 
accidents in North Carolina in 2003 had no formal PWC education.
    PWC Users/Swimmer Conflicts. Personal watercraft would have access 
to two special use areas on the soundside of Shackleford Banks, with a 
non-use area in between where the maritime forest fronts the shoreline. 
This non-use area was chosen based on congestion and safety issues at 
the island, where swimming and beach activities (including overnight 
camping) are common. Therefore, by restricting PWC use in this popular 
area, impacts on swimmers would be reduced compared to reinstating PWC 
throughout the entire island, and impacts would be negligible to minor 
and of short duration in this area.
    PWC Users/Other Boater Conflicts. Other motorized watercraft 
frequent the same areas, including the soundside of Shackleford Banks 
and the areas near the Cape Lookout lighthouse. Under this proposed 
regulation, PWC would have access to the same areas that are popular 
with boaters. The lighthouse area has been popular with PWC users in 
the past and continues to be a strong attraction for all national 
seashore visitors. Personal watercraft would be permitted to operate in 
three use areas in the Cape Lookout Bight area, being most restricted 
in the boat docking areas and beach near the lighthouse and the marshes 
near Catfish Point. A landing zone 300 feet north of the NPS ferry dock 
should help distribute PWC users accessing this area. Such 
restrictions, along with flat-wake speed requirements, should help 
alleviate potential conflicts with other boaters in this popular area 
and keep adverse impacts at minor levels.
    Personal watercraft would not be permitted to use marshlands along 
the North and South Core Banks, where kayakers have complained about 
PWC use in marshes from Cape Lookout north to New Drum Inlet. Conflicts 
and potential for accidents would be minimal farther north, where PWC 
use has historically been extremely low.
    PWC Users/Other Visitor Conflicts. Personal watercraft users would 
continue to conflict with other national seashore users, such as 
anglers and other beach recreationists. However, anglers fishing near 
the maritime forest on Shackleford Banks would benefit from PWC 
prohibition in this area. No accidents or injuries between PWC and non-
PWC users have been reported to national seashore staff, although some

[[Page 77098]]

could have occurred, particularly outside of the park's jurisdiction, 
and not been reported.
    Overall, reinstating PWC use in restricted areas would result in 
adverse, short- and long-term impacts that would vary from negligible 
in low-use areas, to minor in localized, high-use areas where a small 
number of visitors would be affected due the low numbers of PWC 
accessing the national seashore in restricted use areas, as well as the 
flat-wake speed restrictions called for under this proposed regulation.
    Cumulative impacts would be similar to those described under 
alternative A in the EA, although PWC use would be restricted to 
specific areas of the national seashore. When combined with increased 
visitation expected throughout the national seashore, particularly at 
the Cape Lookout lighthouse area, reinstating PWC would increase 
potential for conflicts and accidents, particularly in localized areas. 
However, the restrictions on Shackleford and the Cape Lookout area 
would help alleviate such problems. Therefore, cumulative impacts would 
be adverse, long-term and vary from negligible to moderate depending on 
location.
    Reinstating PWC use in restricted areas would result in adverse, 
short- and long-term impacts that would vary from negligible in low-use 
areas, to minor in localized, high-use areas where a small number of 
visitors would be affected due the low numbers of PWC accessing the 
national seashore in restricted use areas. Cumulative impacts would be 
adverse, long-term and vary from negligible to moderate depending on 
location.

Cultural Resources

    The environment at Cape Lookout National Seashore has deterred 
extensive human settlement in the area. Human occupation of the Outer 
Banks region initially occurred over 3,000 years ago by a hunting-
fishing-gathering people. The peoples of the Outer Banks are considered 
to be small groups of extended families, such as the situation among 
the living Algonkian hunters of the North. Earlier peoples may have 
used the area, but there is a strong likelihood that wave action or 
other natural processes removed any very early sites long ago.
    Little is known about the nomadic hunters on the islands, and 
specific information about the area up to the time of Colonial English 
occupation is lacking. Shell midden sites on the Shackleford Banks and 
at Cape Lookout are the only remains of early human occupation. 
However, these sites (most of which are outside the national seashore's 
jurisdiction) have been reduced to almost unintelligible remains.
    Cape Lookout National Recreation Area has 36 recorded archeological 
sites. These sites are difficult to monitor and protect due to the 
changing landscape of the barrier islands. Shell middens were found on 
the islands in the past, but most have been washed away by storms. None 
of the aboriginal sites currently known to exist within the national 
seashore were felt to be culturally and scientifically significant 
enough to justify their nomination to the National Historic Register.
    Of the 36 recorded archeological sites, some could potentially be 
impacted by PWC use at Cape Lookout. The majority of the sites exist on 
Shackleford Banks, primarily in the salt marshes; some are located on 
small, marshy islands adjacent to Shackleford. Little evidence of these 
sites remains due to advanced stages of erosion and other environmental 
factors. The sites have become damaged from overwash or are submerged 
at high tide, and only erosional remnants remain. Severe erosion and 
movement of the land mass have almost obliterated several sites. Some 
of the sites are covered with thick vegetation, obscuring portions of 
the site from view. One site has been affected by past use of the area 
by sheep and goats, to the extent that little evidence of the site 
remains intact. According to park staff, looting and vandalism of 
cultural resources is not a substantial problem.
    Under this proposed regulation, PWC users would have access to 
specific locations within the national seashore. When riding within NPS 
jurisdiction, PWC would be required to operate perpendicular to the 
shore and at flat-wake speed. Therefore, impacts on archeological sites 
from wave action would be greatly minimized. In addition, very few PWC 
have historically used the national seashore, and most would not 
operate in salt marsh areas where many archeological sites are located, 
further reducing the potential for adverse impact. Therefore, no 
negligible long-term, adverse impacts from PWC wave action would be 
expected.
    Potential impacts resulting from vandalism and illegal collection 
would be similar to those expected under alternative A. However, the 
PWC landing restrictions on Shackleford and Cape Lookout would prevent 
PWC from landing in areas with archeological sites. Although PWC users 
could land in the designated areas and walk to some sites, many are 
submerged or located in salt marshes on small satellite islands, which 
are difficult to access by foot or PWC. Other sites are obscured by 
thick vegetation and difficult to identify. Therefore, impacts from 
vandalism and looting (which have historically been insubstantial) are 
expected to be adverse, long-term, but negligible.
    Impacts from other boaters and visitors would be combined with 
impacts from PWC users. However, impacts from vandalism and illegal 
collecting would be negligible due to the difficulty in identifying 
these sites, as described above. Adverse effects due to wave action 
from boats would continue to impact aboriginal sites, but would not be 
appreciably augmented by waves from PWC use due to the flat-wake speed 
and perpendicular approach restrictions described under this proposed 
regulation. Wild horses would continue to impact archeological sites as 
described under alternative A. Past use of the area by sheep and goats 
could have also adversely impacted these sites. Erosion due to natural 
causes would continue to result in the most damaging impacts on 
archeological sites. Therefore, cumulative impacts resulting from 
vandalism, illegal collecting, waves from boats, and wild horses would 
be adverse, long-term, and negligible.
    Restricting areas of use and requiring PWC to operate perpendicular 
to the shore and at flat-wake speed within the national seashore's 
jurisdiction would minimize impacts on archaeological resources from 
wave action. Restricting areas of use would also minimize impacts 
resulting from vandalism and illegal collecting. Cumulative impacts 
would be adverse, long-term, and negligible.
    Therefore, implementation of this proposed regulation would not 
result in an impairment of cultural resources.

The Proposed Rule

    Under this NPRM, which is based on the preferred alternative, 
alternative B, a special regulation at 36 CFR 7.49 would reinstate PWC 
use at the national seashore. Under the proposed rule, special use 
areas would be identified where PWC could access certain sections of 
Shackleford Banks, South Core Banks, and North Core Banks. Personal 
watercraft would be prohibited in all other areas of the national 
seashore, and PWC would not be allowed to beach on the oceanside. 
Safety and operating restrictions would be dictated by the North 
Carolina PWC regulations outlined under alternative A and additional 
NPS operating restrictions.
    The state of North Carolina ceded legal jurisdiction to the NPS for 
all land

[[Page 77099]]

and waters from the mean low water on the oceanside to 150 feet from 
the mean low water mark on the soundside. Waters beyond this 150 feet 
boundary within Back Sound and beyond the legislated boundary along 
Core Sound are managed by the state of North Carolina. National Park 
Service legal jurisdiction on the oceanside of Shackleford Banks, South 
Core Banks, and North Core Banks is to the mean low water mark.
    Special Use Areas. Ten special use areas would provide for PWC 
access within Cape Lookout National Seashore boundaries. Personal 
watercraft would be allowed to access these areas on North Core Banks, 
South Core Banks (including Cape Lookout), and Shackleford Banks by 
remaining perpendicular to shore and operating at flat-wake speed. 
Under the proposed rule, PWC use would not be authorized for 
recreational use parallel to the shoreline, but only for access to 
those areas identified below specifically for landing purposes. In all 
cases, PWC would have access to the sound side of the barrier islands 
only. No PWC access to the seashore's ocean side would be permitted. 
The ten special use areas identified in the proposed rule include the 
following:
1. North Core Banks
     Ocracoke Inlet Access--Wallace Channel dock to the 
demarcation line in Ocracoke Inlet, near Milepost 1.
     Milepost 11B Access--Existing sound-side dock at Mile post 
11B approximately 4 miles north of Long Point.
     Long Point Access--Ferry landing at Long Point cabin area 
(formerly called the Morris Marina Kabin Kamp) near Milepost 16.
     Old Drum Inlet Access--Soundside beach near Milepost 19 
(as designated by signs), approximately \1/2\ mile north of Old Drum 
inlet (adjacent to the cross-over route) encompassing approximately 50 
feet.
2. South Core Banks
     New Drum Inlet Access--Sound-side beach near Milepost 23 
(as designated by signs), approximately \1/4\ mile long, beginning 
approximately \1/2\ mile south of New Drum Inlet.
     Great Island Access--Carly Dock at the Great Island cabin 
area (formerly called the Alger Willis Fish Camp) near Milepost 30 
(noted as South Core Banks-Great Island on map).
3. Cape Lookout
     Lighthouse Area North Access--A zone 300 feet north of the 
NPS dock at the lighthouse ferry dock near Milepost 41.
     Lighthouse Area South Access--Sound-side beach 100 feet 
south of the ``summer kitchen'' to 200 feet north of the Cape Lookout 
Environmental Education Center Dock.
     Power Squadron Spit Access--Sound-side beach at Power 
Squadron Spit across from rock jetty to end of the spit.
4. Shackleford Banks

     Shackleford West End Access--Soundside beach at 
Shackleford Banks from Whale Creek west to Beaufort Inlet, except the 
area between the Wade Shores toilet facility and the passenger ferry 
dock.
    Access and Wake Restrictions. Within these special use areas, all 
PWC would be required to remain perpendicular to shore and operate at 
flat-wake speed that would result in no visible wake within park 
waters.
    Equipment and Emissions. As noted in the EA, the Environmental 
Protection Agency promulgated a rule to control exhaust emissions from 
new marine engines, including outboards and PWC. Emission controls 
provide for increasingly stricter standards beginning in model year 
1999 (EPA 1996a, 1997). Under this alternative, it is assumed that PWC 
two-stoke engines would be converted to cleaner direct-injected or 
four-stroke engines in accordance with the Environmental Protection 
Agency's assumptions (40 CFR parts 89-91, ``Air Pollution Control; 
Gasoline Spark-Ignition and Spark-Ignition Engines, Exemptions; Rule, 
1996). This proposed rule would not accelerate this conversion from 
two-stroke to four-stroke engines for PWC.
    Visitor Education. Cape Lookout park staff would support the state 
boater education program by annually outlining state and park PWC 
regulations within park brochures such as the park newspaper. Park 
staff would educate visitors about PWC regulations in park and state 
waters to help them understand the differences between park regulations 
and PWC regulations for other local jurisdictions along the Outer 
Banks.
    Cooperation with Local Entities. The park would work with local and 
state governments to encourage consistent PWC user behavior within 
state waters adjacent to park PWC special use areas. The park would 
like to encourage the state to define a PWC use zone in state waters 
adjacent to Cape Lookout National Seashore that would encourage flat-
wake and perpendicular access to the shore.

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 NPS has completed the report ``Economic Analysis of 
Personal Watercraft Regulations in Cape Lookout National Seashore'' 
(MACTEC Engineering, December 2005). This document may be viewed on the 
park's Web site at: http://www.nps.gov/calo/pphtml/documents.html.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Actions 
taken under this rule will not interfere with other agencies or local 
government plans, policies or controls. This rule is an agency specific 
rule.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule will have no effects on entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No grants or other forms of monetary supplements are 
involved.
    (4) This rule does not raise novel legal or policy issues. This 
rule is one of the special regulations being issued for managing PWC 
use in National Park Units. The NPS published general regulations (36 
CFR 3.24) in March 2000, requiring individual park areas to adopt 
special regulations to authorize PWC use. The implementation of the 
requirement of the general regulation continues to generate interest 
and discussion from the public concerning the overall effect of 
authorizing PWC use and NPS policy and park management.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rulemaking will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This certification is based on a report entitled ``Economic Analysis of 
Personal Watercraft Regulations in Cape Lookout National Seashore'' 
(MACTEC Engineering, December 2005). This document may be

[[Page 77100]]

viewed on the park's Web site at: http://www.nps.gov/calo/pphtml/documents.html.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This proposed rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. This rule is an 
agency specific rule and does not impose any other requirements on 
other agencies, governments, or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A taking implication assessment is 
not required. No taking of personal property will occur as a result of 
this rule.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This proposed rule only affects use of NPS 
administered lands and waters. It has no outside effects on other areas 
by allowing PWC use in specific areas of the park.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

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 NPS has analyzed this rule in accordance with the criteria of 
the National Environmental Policy Act and has prepared an EA. The EA 
was available for public review and comment from January 24, 2005, to 
February 24, 2005. Copies of the EA may be downloaded at http://www.nps.gov/calo/pphtml/documents.html or requested by telephoning 
(252) 728-2250. Mail inquiries should be directed to park headquarters: 
Cape Lookout National Seashore, 131 Charles Street, Harkers Island, NC 
28531.

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.  7.49, Cape Lookout 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. 
You may also e-mail the comments to this address: [email protected].
    Drafting Information: The primary authors of this regulation are: 
Robert A. Vogel, Superintendent, Wouter Ketel, Chief Ranger, Michael W. 
Rikard, Chief of Resource Management, Jeff R. Cordes, Resource 
Management Specialist, Michael E. McGee, Facility Manager, Donna 
Tipton, Administrative Officer, Cape Lookout National Seashore; Sarah 
Bransom, Environmental Quality Division; and Jerry Case, NPS, 
Washington, DC.

Public Participation

    If you wish to comment, you may mail or hand deliver your comments 
to: Cape Lookout National Seashore, 131 Charles Street, Harkers Island, 
NC 28531. Comments may also be submitted on the Federal rulemaking 
portal: http://www.regulations.gov Follow the instructions for 
submitting comments. Please identify comments by: RIN 1024-AD44.
    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.
    In consideration of the foregoing, the NPS proposes to amend 36 CFR 
part 7 as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

    1. The authority for part 7 continues to read as follows:

    Authority:  16 U.S.C. 1, 3, 9a, 460(q), 462(k); sec. 7.96 also 
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

    2. Add new Sec.  7.49 to read as follows:


Sec.  7.49  Cape Lookout National Seashore.

    Personal watercraft (PWC) may operate within Cape Lookout National 
Seashore only under the conditions specified in paragraphs (a) through 
(e) of this section and in the designated areas specified paragraph (f) 
in this section.

[[Page 77101]]

    (a) PWC are allowed in the following areas only when remaining 
perpendicular to shore and operating at flat-wake speed.
    (b) PWC use is not authorized for recreational use parallel to the 
shoreline, but only for access to the following areas specifically for 
landing purposes.
    (c) In all cases, PWC have access to the sound side of the barrier 
islands only.
    (d) PWC are prohibited in all areas of the national seashore except 
for the areas listed in paragraph (f) of this section. PWC are not 
allowed to beach on the oceanside.
    (e) 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.
    (f) PWC use is allowed only in the locations specified in this 
paragraph.
(1) North Core Banks:

------------------------------------------------------------------------
                 Access                              Location
------------------------------------------------------------------------
(i) Ocracoke Inlet.....................  Wallace Channel dock to the
                                          demarcation line in Ocracoke
                                          Inlet near Milepost 1.
(ii) Milepost 11B......................  Existing sound-side dock at
                                          mile post 11B approximately 4
                                          miles north of Long Point.
(iii) Long Point.......................  Ferry landing at the Long Point
                                          Cabin area.
(iv) Old Drum Inlet....................  Sound-side beach near Milepost
                                          19 (as designated by signs),
                                          approximately \1/2\ mile north
                                          of Old Drum inlet (adjacent to
                                          the cross-over route)
                                          encompassing approximately 50
                                          feet.
------------------------------------------------------------------------

(2) South Core Banks:

------------------------------------------------------------------------
                 Access                              Location
------------------------------------------------------------------------
(i) New Drum Inlet.....................  Sound-side beach near Milepost
                                          23 (as designated by signs),
                                          approximately \1/4\ mile long,
                                          beginning approximately \1/2\
                                          mile south of New Drum Inlet.
(ii) Great Island Access...............  Carly Dock at Great Island
                                          Camp, near Milepost 30 (noted
                                          as South Core Banks-Great
                                          Island on map).
------------------------------------------------------------------------

(3) Cape Lookout

------------------------------------------------------------------------
                 Access                              Location
------------------------------------------------------------------------
(i) Lighthouse Area North..............  A zone 300 feet north of the
                                          NPS dock at the lighthouse
                                          ferry dock near Milepost 41.
(ii) Lighthouse Area South.............  Sound-side beach 100 feet south
                                          of the ``summer kitchen'' to
                                          200 feet north of the Cape
                                          Lookout Environmental
                                          Education Center Dock.
(iii) Power Squadron Spit..............  Sound-side beach at Power
                                          Squadron Spit across from rock
                                          jetty to end of the spit
------------------------------------------------------------------------

(4) Shackleford Banks West End Access Sound-side beach at Shackleford 
Banks from Whale Creek west to Beaufort Inlet, except the area between 
the Wade Shores toilet facility and the passenger ferry dock.

    Dated: December 20, 2005.
Paul Hoffman,
Acting Assistant Secretary, Fish and Wildlife and Parks.
 [FR Doc. E5-8003 Filed 12-28-05; 8:45 am]
BILLING CODE 4312-52-P