[Federal Register Volume 71, Number 37 (Friday, February 24, 2006)]
[Proposed Rules]
[Pages 9495-9502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2643]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD41


Gateway National Recreation Area, Jamaica Bay Unit, Personal 
Watercraft Use

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Park Service (NPS) is proposing to designate 
areas for the limited purpose of providing passage access through park 
waters for personal watercraft (PWC) use in the Jamaica Bay Unit of 
Gateway National Recreation Area (GATE), New York/New Jersey. 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. Individual parks must 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. The proposed rule designating areas 
where PWC may be used in the Sandy Hook unit of GATE, New York/New 
Jersey is published elsewhere in today's Federal Register.

DATES: Comments must be received by April 25, 2006.

ADDRESSES: You may submit comments, identified by the number RIN 1024-
AD41, by any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail NPS at [email protected].
     Mail or hand deliver to: General Superintendent, Gateway 
National Recreation Area, 210 New York Avenue, Staten Island, NY 10306.
    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 for the Jamaica Bay 
Unit of GATE supports implementation of the preferred alternative from 
the Environmental Assessment (EA) published April 3, 2003. The public 
should be aware that three 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 prohibited PWC use in all park units 
effective April 20, 2000, except 21

[[Page 9496]]

parks, lakeshores, seashores, and recreation areas until individual 
park units adopted special regulations to manage PWC use. 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 Gateway National Recreation Area and the Jamaica Bay 
Unit

    Gateway National Recreation Area is located in the heart of the New 
York City metropolitan area. The park, which extends through three New 
York City boroughs and into New Jersey, consists of more than 26,000 
acres and has been assembled from city parks, military sites, and 
undeveloped land. Congress established GATE in 1972 as one of the first 
urban parks in the national park system. Gateway National Recreation 
Area is composed of three distinct units--Jamaica Bay, Staten Island, 
and Sandy Hook. These units comprise a seashore ecosystem of wildlife, 
private communities, and outdoor recreational activities in an urban 
environment. This proposed rule addresses PWC use in the Jamaica Bay 
Unit. The proposed rule designating areas where PWC may be used in the 
Sandy Hook units of GATE, New York/New Jersey is published elsewhere in 
today's Federal Register.
    Jamaica Bay is the largest unit of GATE and is located along the 
southern shore of Brooklyn and Queens. This unit contains a variety of 
activity areas, including Frank Charles Memorial Park, Canarsie Pier, 
Bergen Beach, Plumb Beach, Breezy Point, Fort Tilden, Jacob Riis Park, 
Floyd Bennett Field, and the Jamaica Bay Wildlife Refuge. Some of the 
activities include biking, birdwatching, exhibits, gardening, group 
camping, hiking, military history, nature study, picnicking, 
basketball, golf, paddle tennis, sunbathing, swimming, volleyball, art 
exhibits, music and theater performances, playgrounds, and fishing.
    Gateway National Recreation Area is unique from other national 
parks in that it has few natural buffer zones and exists in a changing 
environment. The lands and waters of GATE represent the last remnants 
of the original shoreline and provide a coastal recreation resource 
that may serve more visitors than any national park in the system. 
Visitation has been estimated to be about 8 million annually. In 2001, 
the Jamaica Bay and Staten Island Units in New York received more than 
6 million visitors and the Sandy Hook Unit in New Jersey received over 
1 million visitors. Because of its urban setting, proximity to two 
major airports, and intense visitor use, GATE is less likely than some 
park units to ever offer substantial opportunities for solitude or 
quiet contemplative experiences.
    Gateway National Recreation Area has come to demonstrate the 
potential of ecological reclamation in an urban setting. Scientists 
have noted that the ecological restoration of Jamaica Bay and other 
GATE areas is proof that we can work with nature and reclaim what has 
been severely impacted.

Purpose of Gateway National Recreation Area

    Congress established GATE in October 27, 1972, as part of an effort 
to bring the NPS and its ethic of preserving and protecting outstanding 
resources closer to major urban areas: ``In order to preserve and 
protect for the use and enjoyment of present and future generations an 
area possessing outstanding natural and recreational features, the 
Gateway National Recreational Area * * * is hereby established.'' (16 
U.S.C. 460(c)).

Significance of Gateway National Recreation Area

    Gateway National Recreation Area's primary significance is provided 
in its Strategic Plan as follows:
    Gateway National Recreation Area encompasses the largest collection 
of natural ecosystems, wildlife habitats, historic resources, and 
recreational opportunities in the New Jersey/New York metropolitan 
areas.
    Gateway National Recreation Area endeavors to incorporate the NPS 
conservation ethic into those values, consistent with its highly 
urbanized setting and visitor use patterns.
    Natural and cultural resources and associated values are protected, 
restored, and maintained in good condition and managed within their 
broader ecosystem and cultural context to the maximum extent possible.
    Visitors safely enjoy and are satisfied with the availability, 
accessibility, diversity, and quality of park recreational 
opportunities.

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 and, as with 
the United States Coast Guard, 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 original intent and authority to regulate activities within the NPS 
boundaries occurring on waters subject to the jurisdiction of the 
United States.

PWC Use at Gateway National Recreation Area and the Jamaica Bay Unit

    Water-based recreational activity at GATE, including wading, 
swimming, fishing, and boating, is a major activity in the park. All 
three park units are located alongside some of the finest shoreline in 
the nation, which includes expansive bays, basins, creeks, marshes, and 
open water. Motorized use of these water resources is primarily by 
powerboat enthusiasts and secondarily by PWC owners. Motorized 
watercraft accessing the recreation area typically ranges from 15 to 23 
feet in length. Some yachts and fishing boats in the park are 50 to 100 
feet in length. Personal watercraft represented 10% to 15% of the 
motorized watercraft within the recreation area prior to the April 22, 
2002 prohibition. Other water activities include sailing, kayaking, 
canoeing, windsurfing, and kite-skiing.
    Personal watercraft use within GATE has probably occurred since PWC 
were introduced to the public. Personal watercraft use began in the 
1980's and grew very rapidly. While the increase in PWC use has 
recently slowed down somewhat, use still continued slowly to climb 
before the prohibition. The rise may be attributed to design features 
which make it possible now for some PWC to carry more than two 
passengers and even as many as six. Personal watercraft use can be 
characterized as

[[Page 9497]]

intense for approximately six months out of the year.
    Specifically in the Jamaica Bay Unit, of the 3,747,044 visitors to 
the unit in 2001, 43,062 used some form of watercraft. The NPS 
estimates that approximately 15% of boaters in the Jamaica Bay Unit are 
PWC users. The heaviest PWC use is during the summer season.
    In 2001, the United States Park Police Marine Unit counted 395 PWC 
docked at waterfront homes of the inlets, basins, and channels leading 
out to Jamaica Bay. This number did not include PWC berthed at many 
local marinas or private boat clubs, which abound in the surrounding 
community. In addition, many PWC are trailered to the area and launched 
from various designated locations throughout the units. Based upon this 
activity a more realistic estimate of PWC utilizing the bay may be more 
that double the above figure.
    Before PWC were prohibited on April 22, 2002, the Jamaica Bay Unit 
managed PWC use the same as other motorized vessels, without specific 
PWC regulations. Before the prohibition, PWC use and other motorized 
vessels were allowed within the Jamaica Bay Unit and were not limited 
to specific areas. In accordance with NPS regulations (36 CFR 3.6) 
motorized vessels must travel at flat wake speed when within 500 feet 
of swimming beaches or within 100 feet of a diver's marker, downed 
water-skier, or swimmer. Also, motorized vessels can only land in 
designated locations. The Superintendent's Compendium for the Jamaica 
Bay Unit closes ocean beaches, designated swimming beaches, shorebird-
nesting areas, and areas of potential visitor use to landing or 
launching of all motorized watercraft, including PWC. In the Jamaica 
Bay Unit most of the PWC users launch from city property located in 
Brooklyn and Queens or private docks along the inlets to Jamaica Bay. 
Launching occurs at various points around the bay, including Paerdegat 
Basin Marina, Shellbank Basin, Sheepshead Bay, and homeowner piers. The 
Gateway Marina in Floyd Bennett Field prohibits PWC use. Personal 
watercraft users usually use shore areas, explore coves, circle around 
the marsh islands, and sometimes venture into the small channels 
connecting the marshes. However, the majority of PWC users operate 
primarily within Jamaica Bay, out to Breezy Point, and in open waters 
facing the ocean.
    Of particular concern is the impact to GATE's estuaries in all 
three units, which include the open salt water, salt marshes, and the 
fresh water, which empties into these bodies of water. Gateway National 
Recreation Area has over 3,000 acres of fresh and tidal wetlands. The 
wetlands provide the habitats for literally hundreds of birds, fish, 
mammals, reptiles, amphibians, shellfish, and other invertebrates both 
migratory and indigenous species. Therefore, due to the delicate nature 
of these areas and other visitor experience issues, the NPS has 
concluded that PWC use should be limited to navigational channels only 
to be used for the purpose of providing passage access through park 
waters.

Resource Protection and Public Use Issues

Gateway National Recreation Area Environmental Assessment

    As a companion document to this NPRM, NPS has issued the Personal 
Watercraft Use Environmental Assessment for Gateway National Recreation 
Area. The EA was published on April 2003. Copies of the EA may be 
downloaded at http://www.nps.gov/gate/pphtml/news.html.
    The purpose of the EA is to evaluate a range of alternatives and 
strategies for the management of PWC use in each of the units at GATE 
to ensure the protection of park resources and values while offering 
recreational opportunities as provided for in the National Recreation 
Area's enabling legislation, purpose, mission, and goals. The 
assessment assumed alternatives would be implemented beginning in 2002 
and considered a 10-year period, from 2002 to 2012. The assessment also 
compares each alternative to PWC use before April 22, 2002, when the 
prohibition took effect. In addition, the EA defines such terms as 
``negligible'' and ``adverse.'' In this document, these terms are used 
to describe the environmental impact. Refer to the EA for complete 
definitions.
    The EA evaluates four alternatives addressing the use of PWC at the 
three park units of GATE--Jamaica Bay, Staten Island, and Sandy Hook. 
Each unit is assessed separately. The following describes the four 
alternatives discussed in the EA for Jamaica Bay Unit:
    Under alternative A, by using a special regulation, PWC use would 
be reinstated under the management policies that applied to PWC use 
before April 22, 2002, as defined in the Jamaica Bay Unit 
Superintendent's Compendium. Before the prohibition on PWC use, the 
Jamaica Bay Unit had no specific regulations directed at managing PWC 
use; rather PWC use was addressed under the category of motorized 
vessels. The only limitation in addition to State rules was a 
prohibition on launching or recovery of vessels within the unit.
    Under alternative B, PWC use would be managed by imposing 
geographic restrictions on PWC use at the Jamaica Bay Unit in addition 
to those restrictions in effect before the April 22, 2002 prohibition. 
Therefore alternative B would incorporate the pre-prohibition 
restrictions, which are the same as alternative A, and add additional 
geographic restrictions. Under alternative B, additional geographic 
restrictions on PWC use would prohibit the use of PWC in all areas of 
the unit with the exception of the following navigational channels: 
North Channel (Island Channel), Beach Channel (South Channel), Grass 
Hassock Channel, Rockaway Inlet, and Broad Channel to the trestle 
bridge (the Raunt). Personal watercraft owners living on the adjacent 
creeks, basins, and waterways would be allowed access through the unit; 
however, they must stay within the buoyed navigational channels from 
Gerritsen Creek, Mill Basin, Paerdegat Basin, Shellbank Basin, Hawtree 
Creek, Breezy Point, and Roxbury. Personal watercraft use would be 
prohibited from all waters along Breezy Point, and a 150-foot buffer 
would be implemented around all protected areas within Jamaica Bay. All 
State and Federal PWC regulations that existed prior to the prohibition 
would remain in effect and be enforced by the NPS.
    Under alternative C, the same restrictions would be in effect as 
under the previous two alternatives except that Winhole Channel would 
be open to PWC use, maintaining a circuitous route around Jamaica Bay, 
eliminating the need for PWC users to turn around in navigational 
channels, and allowing more area for PWC use in Jamaica Bay. The final 
alternative is the no-action alternative which assumes a scenario of 
discontinuing all PWC use at this unit. The NPS would take no further 
action to promulgate a special regulation to allow PWC use, which would 
result in a ban on PWC use at the unit.
    A preferred alternative was selected that would best fulfill park 
responsibilities as trustee of the 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.
    Based on the environmental analysis prepared for PWC use at GATE, 
Jamaica Bay Unit, alternative B is the preferred alternative. 
Alternative B allows PWC use restricted to navigational channels

[[Page 9498]]

under a special regulation with additional geographic restrictions. 
This document proposes regulations to implement alternative B.
    As previously noted the NPS will consider comments received on this 
proposal, as well as the comments received on the EA. In the final 
rule, the NPS will implement these alternatives 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 reinstating PWC use at the Jamaica 
Bay Unit of GATE under the proposed rule which implements alternative 
B. Each of these issues is analyzed in the Gateway National Recreation 
Area, Personal Watercraft Use Environmental Assessment.

Water Quality

    The proposed rule will manage PWC to prevent further degradation of 
water quality in estuarine and ocean waters, to manage PWC emissions 
that enter the water in accordance with anti-degradation policies and 
goals, and to protect plankton and other aquatic organisms from PWC 
emissions and sediment disturbances so that the viability of dependent 
species is conserved.
    Most research on the effects of PWC on water quality focuses on the 
impacts of two-stroke engines, and it is assumed that any impacts 
caused by these engines also apply to the PWC powered by them. There is 
general agreement that two-stroke engines 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) and polyaromatic hydrocarbons (PAHs). PAH 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 these compounds--BTEX and PAH--
have potential adverse effects on water quality.
    A typical conventional (i.e., carbureted) two-stroke PWC engine 
discharges as much as 30% of the unburned fuel mixture directly into 
the water. At common fuel consumption rates, an average two-hour ride 
on a PWC may discharge 3 gallons of fuel into the water. According to 
the California Air Resources Board, an average PWC can discharge 
between 1.2 and 3.3 gallons of fuel during one hour at full throttle. 
It is recognized that as time passes fewer of these types of PWCs are 
used and newer models sold have substantially reduced emissions. 
Hydrocarbon (HC) discharges to water are expected to decrease 
substantially over the next 10 years due to mandated improvements in 
engine technology.
    Under this proposed rule PWC use would be restricted in Jamaica Bay 
to the North Channel (Island Channel), Broad Channel (the Raunt), Beach 
Channel (South Channel), Plumb Beach Channel, Gerritsen Inlet toward 
Sheepshead Bay, Coney Island Channel, and Grass Hassock Channel. 
Personal watercraft use would be prohibited from the Breezy Point 
waters. For the purpose of evaluating impacts on water quality under 
this proposed rule, it is assumed that the same number of PWC would be 
operating in Jamaica Bay as were operated before the prohibition, but 
would be confined to smaller areas under these new restrictions. 
Further, it is assumed that PWC users that formerly used the Breezy 
Point area would no longer use any of the unit's waters.
    Under this proposed rule water quality impacts from PWC emissions 
based on ecotoxicological and human health benchmarks would be 
negligible for all pollutants in all areas in 2002 and 2012. Closing 
Breezy Point to PWC use would have a beneficial effect on water 
quality. Restricting PWC use to the main navigational channels within 
Jamaica Bay would have beneficial impacts on shoreline areas, but would 
not reduce the number of PWC or emissions and would result in more 
localized adverse effects of PWC pollutants. Cumulative water quality 
impacts from all watercraft under the proposed rule based on 
ecotoxicological benchmarks would be negligible for all pollutants in 
all areas in 2002 and 2012. Cumulative water quality impacts from all 
motorized use based on human health benchmarks are expected to be minor 
in 2002 and negligible in 2012. Therefore, this proposed regulation 
would not impair water quality.

Air Quality

    The proposed rule intends to manage PWC activity so that PWC air 
emissions of harmful compounds do not contribute to air quality 
degradation, and do not adversely affect visitor health and safety.
    Personal watercraft emits various compounds that pollute the air. 
In the two-stroke engines commonly used in PWC, 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 emits fuel 
components such as benzene 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. Ozone causes respiratory problems in 
humans, including cough, airway irritation, and chest pain during 
inhalations. Ozone is also toxic to sensitive species of vegetation. It 
causes visible foliar injury, decreases plant growth, and increases 
plant susceptibility to insects and disease. Carbon monoxide 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 also 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.
    Under this proposed rule, PWC annual emissions in 2002 and 2012 
would result in major adverse impacts from CO emissions and negligible 
adverse impacts from PM emissions in the Jamaica Bay Unit. For ozone 
precursors, impacts from VOC would be major adverse in 2002, decreasing 
to moderate adverse in 2012, and impacts from NOX would be 
minor adverse in 2002 and 2012. The cumulative impacts from all boating 
activities under this proposed rule would be major adverse for CO (as 
defined by the Federal conformity rule) and negligible for PM. The 
proposed rule would not impair air quality to human health from 
airborne pollutants related to PWC use since the proposed alternatives 
will not change or jeopardize existing ambient air quality levels, 
while they will improve air quality levels when compared to the PWC use 
under previously existing conditions.
    Personal watercraft annual emissions under this proposed rule would 
result in moderate adverse impacts for ozone in 2002 and 2012. Before 
April 22, 2002, there were no perceptible qualitative visibility 
impacts or observed ozone injury on plants. Impacts on visibility from 
airborne pollutants related to PWC

[[Page 9499]]

use would be negligible. Cumulative impacts from all PWC and other 
marine boating activities would result in moderate adverse ozone 
impacts and negligible visibility impacts in 2002 and 2012. Based on 
this analysis, this proposed rule would not impair air quality related 
values.

Soundscapes

    The proposed rule would manage noise from PWC use in affected areas 
so that visitors' health and safety is not adversely affected and would 
improve conditions so visitor enjoyment will not be disturbed by PWC 
use.
    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 travel along the shore to outlying 
areas. However, as PWC use increases and concentrates at beach areas, 
related noise becomes more of an issue, particularly during certain 
times of the day.
    The biggest difference between noise from PWC and that from 
motorboats is that the former frequently leave the water, which 
magnifies noise in two ways. Without the muffling effect of water, the 
engine noise is typically 15 dBA louder and the smacking of the craft 
against the water surface results in a loud ``whoop'' or series of 
them. With the rapid maneuvering and frequent speed changes, the 
impeller has no constant ``throughput'' and no consistent load on the 
engine. Consequently, the engine speed rises and falls, resulting in a 
variable pitch. This constantly changing noise is often perceived as 
more disturbing than the consistent noise from motorboats.
    Personal watercraft users tend to operate close to shore, to 
operate in confined areas, and to travel in groups, making noise more 
noticeable to other recreationists. Motorboats traveling back and forth 
in one area at open throttle or spinning around in small inlets also 
generate complaints about noise levels; however, most motorboats tend 
to operate away from shore and to navigate in a straight line, thus 
being less noticeable to other recreationists.
    This proposed rule for Jamaica Bay would prohibit PWC use 
throughout the unit except at flat wake speed in designated 
navigational channels. PWC use would be prohibited at Breezy Point. As 
a result, it is assumed that 35 PWC would use the channels in Jamaica 
Bay on a peak summer day, and 10 would use Rockaway Inlet. Personal 
watercraft noise impacts in these areas would be similar to what 
existed before the prohibition on PWC use, although more localized in 
the navigational channels. Overall noise would probably be less 
noticeable to park visitors on the shoreline since PWC traffic would be 
farther away within the central channels. Personal watercraft related 
noise impacts would range from negligible to minor adverse over the 
short and long term in and near navigational channels open to PWC use. 
Visitors at Breezy Point would experience less noise with the removal 
of PWC use.
    Noise from all motorized watercraft, as well as ambient noise 
levels occurring outside the unit, would have negligible to moderate 
adverse impacts on other recreational users within the unit, similar to 
before the prohibition on PWC use. Noise impacts would be minor to 
other visitors and minor to moderate compared to the natural 
soundscape. Therefore, the proposed rule would not impair any 
soundscape-related values.

Wildlife and Wildlife Habitat

    This proposed rule intends to protect a part of the largest 
collection of natural ecosystems and wildlife habitats in the New York 
City metropolitan area, to protect birds and other wildlife from the 
effects of PWC-generated noise, especially during nesting seasons and 
other critical life stages, to protect fish and wildlife from the 
adverse effects that result from the bioaccumulation of contaminants, 
such as PAHs, emitted from PWC and to encourage increasing biodiversity 
of flora and fauna.
    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, 
and contribute to stress and associated behavior changes. Impacts to 
sensitive species are documented under ``Threatened, Endangered, or 
Special Concern Species.''
    Under the proposed rule for the Jamaica Bay Unit, in areas that 
would be open to PWC use, impacts on wildlife and wildlife habitat 
would be short and long term, minor, and adverse. Effects are expected 
to be minor because species sensitive to a high level of noise and 
human activity would probably not regularly use these areas during 
summer peak periods. Requirements for PWC users to stay within 
navigational channels, not to access shoreline habitats, and to operate 
at a flat wake speed would minimize adverse effects associated with 
rapid approach, collision, and noise to wildlife utilizing the 
shoreline and nearshore habitats in the Jamaica Bay Unit.
    In areas where PWC use would be prohibited, including the areas 
around the islands bordering Winhole Channel, impacts on shorebirds, 
waterfowl, and other fish and wildlife species using shallow water 
habitats and the shorelines would be beneficial. Restricting PWC access 
to large areas of shallow-water habitat in the unit would also enhance 
the quality of essential fish habitat in these areas, a beneficial 
impact.
    On a cumulative basis impacts on wildlife species would be adverse 
and minor to moderate over the short and long term. In areas closed to 
PWC use (all areas outside of existing navigational channels) impacts 
would be beneficial; however, impacts associated with use by other 
motorized watercraft would continue to impact areas throughout the 
unit. Wildlife in areas closed to PWC use could be adversely affected 
by uses in the navigational channels as a result of noise and possible 
water quality impacts; however, considering existing background 
conditions, these effects are expected to be negligible. In addition, 
cumulative impacts on aquatic fauna would be moderate over the short 
and long term. Therefore, the proposed rule would not impair wildlife, 
wildlife habitat, or aquatic fauna.

Threatened, Endangered, or Special Concern Species

    This proposed rule aims to improve the status of the unit's 
threatened and endangered and protected species and their habitats.
    The same issues described for PWC use and general wildlife also 
pertain to special concern species. Potential impacts from PWC include 
inducing flight and alarm responses, disrupting normal behaviors and 
causing stress, degrading habitat quality, and potentially affecting 
reproductive success. Special status species at the recreation area 
include Federal or State listed threatened, endangered, or candidate 
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,

[[Page 9500]]

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.
    Federally endangered wildlife species documented in the Jamaica Bay 
Unit include the roseate tern and Kemp's Ridley sea turtle. The 
Federally threatened piping plover and loggerhead sea turtle also occur 
in or near PWC use areas. In addition, the endangered leatherback sea 
turtle occurs in the waters of New York and New Jersey. State-listed 
threatened or endangered wildlife species include the State endangered 
roseate tern and piping plover and the State threatened common tern, 
least tern, and northern harrier. The State endangered peregrine falcon 
nests on the Marine Park Bridge, which is outside of the Jamaica Bay 
Unit, but peregrine falcons utilize the area. Two State species of 
special concern--the black skimmer and the osprey--also occur within 
the unit. Federally protected whales that occur seasonally off the 
coast of New York and New Jersey include the endangered northern right 
whale, humpback whale, and fin whale.
    Personal watercraft use under the proposed rule may affect but is 
not likely to adversely affect Federal or State threatened or 
endangered species in the Jamaica Bay Unit. Impacts could occur where 
species access or forage in channel areas remaining open to PWC use. 
Closing waters adjacent to Breezy Point would eliminate the potential 
for PWC-related adverse effects to species foraging in nearshore ocean 
habitats or resting or foraging along the shoreline. On a cumulative 
basis, threatened or endangered species may be affected but are not 
likely to be adversely affected under this proposed rule. The potential 
for adverse effects would be slightly less than before the ban on PWC 
use because of restricting PWC use to navigational channels within the 
bay, but other motorized watercraft uses would continue throughout the 
bay. Therefore, the proposed rule would not impair any threatened, 
endangered, or sensitive species.

Shoreline Vegetation

    This proposed regulation intends to regulate PWC use to reduce 
erosion in areas where shoreline vegetation is extremely sensitive, 
such as the islands in Jamaica Bay, and to manage PWC use to protect 
sensitive shoreline areas (vegetation/erosion) from PWC activity and 
access.
    For the Jamaica Bay Unit, impacts to shoreline vegetation and 
wetland habitats from PWC use would be negligible over the short and 
long term under the proposed rule as a result of restricting use to 
navigational channels, prohibiting shoreline access, limiting speeds, 
and establishing buffers around protected areas. Minor, adverse, direct 
and indirect, cumulative effects are expected. Even though PWC use 
would be restricted to navigational channels, other watercraft could 
access shallow water areas outside of the channels, potentially 
resulting in short- and long-term impacts on shoreline vegetation and 
wetland habitats. Therefore, this proposed rule would not impair 
shoreline vegetation or wetland habitats.

Visitor Experience

    In proposing this regulation, NPS aims to manage the potential 
conflicts between PWC use and park visitors and to help ensure that 
visitors safely enjoy and are satisfied with the quality of park 
recreational activities.

Impacts on PWC Users

    Although PWC users would be restricted to the navigational channels 
within Jamaica Bay and Rockaway Inlet, they would continue to have 
access to other areas outside NPS jurisdictional waters. Closing 
Winhole Channel to use would prevent PWC users from traveling in a 
circle around the bay and could frustrate some individuals. There would 
be a negligible adverse impact to PWC users as a consequence of the 
150-foot buffer zone around protected areas. Closing ocean waters off 
Breezy Point and interior areas of Jamaica Bay to PWC use would have 
negligible to moderate adverse impacts on users because of continued 
access to other areas via contiguous waters.

Impacts on Other Boaters

    Other boaters in the Jamaica Bay Unit would continue to interact 
with PWC users within the navigational channels of Jamaica Bay and 
Rockaway Inlet. It is assumed that the same number of PWC users as 
there were before the prohibition would be present but they would be 
concentrated in smaller areas, and congestion among PWC users is 
expected to increase, along with the potential for adverse effects on 
other boaters. This proposed rule would have minor to moderate adverse 
effects on the visitor experiences of other boaters now and in the 
future.

Impacts on Other Visitors

    Other visitors to the Jamaica Bay Unit would continue to interact 
with PWC operators, but on a limited basis. Potential interactions with 
other visitors, specifically birdwatchers and swimmers, would only 
occur when PWC users accessed the channels and basins around Jamaica 
Bay, with negligible adverse effects. Effects on park visitors during 
the off-season or non-peak hours (weekdays) would continue to be 
negligible. Visitors to the Jamaica Bay Unit for land-based activities 
would experience beneficial impacts with the removal of PWC from 
nearshore habitats.
    Therefore, restricting PWC use to navigational channels within the 
bay (except for Winhole Channel), and closing ocean waters off Breezy 
Point to PWC use would have negligible to moderate adverse impacts on 
PWC recreationists. There would be a minor to moderate impact on other 
boaters to the unit as congestion would increase in the navigational 
channels. For other visitors PWC use restrictions would result in 
beneficial impacts on their experiences, depending on the location and 
seasonal variations in activities. This proposed rule would partially 
meet the park's strategic goal for improved visitor satisfaction for 
boaters and other visitors by restricting PWC use to certain 
navigational channels. Cumulative effects would be negligible and most 
visitors would continue to be satisfied with their experiences at the 
unit.

Visitor Conflict and Safety

    With this proposed rule, NPS intends to minimize or reduce the 
potential for PWC user accidents, to minimize or reduce the potential 
safety conflicts between PWC users and other water recreationists, to 
decrease visitor accident and incident rates, and to help ensure that 
visitors safely enjoy and are satisfied with the quality of park 
recreation activities.
    Some research suggests that PWC use is viewed by some segments of 
the public as a nuisance due to the noise, speed, and overall 
environmental effects, while others believe that PWC use is no 
different from other watercraft, and recreationists have a ``right'' to 
enjoy this sport. Specific complaints have been received from some 
anglers who have complained during surf casting season in Jamaica Bay 
because PWC infringe upon their area.
    This proposed rule would eliminate the potential for PWC-related 
accidents within those areas of the Jamaica Bay Unit closed to PWC use, 
a beneficial impact. Personal watercraft users and other boaters would 
experience minor to moderate adverse impacts in the North Channel when 
turning around within the navigational channel at the trestle bridge. 
Cumulative impacts would be reduced as a result of restricting PWC

[[Page 9501]]

use, with negligible to minor impacts depending on the type of activity 
and its location. Cumulative minor adverse impacts on areas outside 
unit waters could increase if PWC use in other areas increased.

The Proposed Rule

    As established by the April 2000 NPS rule, PWC use is prohibited in 
all NPS areas unless determined appropriate. The process used to 
identify appropriate PWC use at each unit of the GATE considered the 
known and potential effects of PWC on park natural resources, 
traditional uses, and public health and safety.
    NPS proposes to allow limited PWC use at the Jamaica Bay Unit of 
GATE under a special regulation in Sec.  7.29. Since the NPS is 
proposing different special rules for each of the three units (Jamaica 
Bay, Staten Island, and Sandy Hook) within the GATE, three new 
paragraphs would be added to Sec.  7.29.
    Under this proposed rule, NPS proposes to allow PWC use within the 
Jamaica Bay Unit but only in certain navigational channels and not 
exceeding a flat wake speed. These channels are: North Channel (Island 
Channel), Beach Channel (South Channel), Grass Hassock Channel, Plumb 
Beach Channel, Gerritsen Inlet and Broad Channel to the trestle bridge 
(the Raunt).
    In addition to the limitations in the proposed special regulation, 
nonconflicting State and Federal regulations regarding PWC use will be 
enforced by the NPS pursuant to 36 CFR 3.1. For the Jamaica Bay Unit 
this would mean New York State law.
    The applicable New York law includes the following:
    1. No operation from sunset to sunrise.
    2. Must be 16 years old and have a boating certificate to operate a 
PWC or be accompanied by a person with a boating certificate.
    3. Must have a visual distress flag and an auditory distress signal 
(horn or whistle).
    4. Must have a mandatory personal floatation device. PWC must have 
at least two ventilators to remove any explosive gases.
    5. An engine cut off lanyard (if equipped) must be attached to the 
operator.
    PWC users would be prohibited from launching or landing any vessels 
within the unit.
    Personal watercraft users living on the adjacent creeks, basins, 
and waterways would be allowed access through the unit if they stay 
within one of two alternative routes. One allowed route, if present, is 
a buoyed route. The alternative would be to take the most direct route 
to access the designated navigational channels from Gerritsen Creek, 
Mill Basin, Paerdegat Basin, Shellbank Basin, Hawtree Creek, Breezy 
Point, and Roxbury.

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. This determination is based upon the EA analysis prepared 
for PWC use at all three units. All preferred alternatives would best 
fulfill park responsibilities as trustee of the habitat; ensuring safe, 
healthful, productive, and aesthetically and culturally pleasing 
surroundings; and attaining a wide range of beneficial uses of the 
environment without degradation, risk of health or safety, or other 
undesirable and unintended consequences.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The EA has 
taken into consideration the following Federal, State and other agency 
plans and activities:
Federal
    a. 1972 Coastal Zone Management Act.
    b. 1982 Coastal Barriers Resources Act.
    c. Gerritsen Creek Restoration Project (Army Corps of Engineers).
    d. Jamaica Bay Ecosystem Restoration Project (National Park Service 
and Army Corps of Engineers).
    e. Jamaica Bay Shoreline Protection Project (National Park Service 
and Army Corps of Engineers).
    f. Jamaica Bay Ecological Research and Restoration Team (National 
Park Service and Army Corps of Engineers).
State
    a. 2000 Non-Point Source Management Program (New York State).
    b. New Jersey Coastal Management Plan.
    c. New York Coastal Management Program.
    d. New Jersey Watershed Management Area 12.
    e. 1998 New York Clean Water Action Plan.
    f. New Jersey Water Quality Standards.
    g. 2000 New Jersey Water Quality Inventory Report.
    h. New York Water Quality Standards, New York State.
Implementation Plan
    a. New York and New Jersey State Boating Laws.
    (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.
    (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 Gateway National Recreation Area'' 
(RTI, International, March 2002). This document may be viewed on the 
park's Web site at: http://www.nps.gov/ gate/pphtml/news.html.

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.

[[Page 9502]]

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

    As a companion document to this NPRM, NPS has issued the Personal 
Watercraft Use Environmental Assessment for Gateway National Recreation 
Area. The EA was open for public review and comment from May 15 to June 
15, 2003. Copies of the EA may be downloaded http://www.nps.gov/gate/ 
pphtml/news.html.

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. In the EA, the Sacred Sites/Native 
American Concerns section states: This is not an issue at GATE because 
there are no known sacred sites or Native American concerns at GATE or, 
more specifically, within the vicinity of existing or potential future 
landing areas for PWC use areas.

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.  7.29 Gateway Recreation Area.] (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 email the comments to this address: [email protected].
    Drafting Information: The primary authors of this regulation are: 
Barry T. Sullivan, General Superintendent, Jos[eacute] Rosario, Chief, 
Operations Support, HQ, Liam Strain, Park Ranger, Operations Support, 
HQ, Gateway NRA; Sarah Bransom, Environmental Quality Division; and 
Jerry Case, Regulations Program Manager.

Public Participation

    You may submit comments, identified by the number RIN 1024-AD41, by 
any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting electronic comments.
     E-mail at [email protected].
     Mail or hand deliver to: General Superintendent, Gateway 
National Recreation Area, 210 New York Avenue, Staten Island, NY 10306.
    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 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 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. Amend Sec.  7.29 by adding paragraph (d) to read as follows:


Sec.  7.29  Gateway National Recreation Area.

* * * * *
    (d) Personal watercraft (PWC): Jamaica Bay Unit.
    (1) PWC are prohibited from operating within the Jamaica Bay Unit 
of the Gateway National Recreation Area except in the following 
designated areas:
    (A) North Channel (Island Channel).
    (B) Beach Channel (South Channel) to the Gil Hodges Memorial 
Bridge.
    (C) Grass Hassock Channel.
    (D) Plumb Beach Channel to the Gil Hodges Memorial Bridge.
    (E) Broad Channel to the trestle bridge (the Raunt).
    (F) Gerritsen Inlet toward Sheepshead Bay, Coney Island Channel, 
and open ocean.
    (2) PWC use within the Jamaica Bay Unit of the Gateway National 
Recreation Area is subject to the following:
    (i) PWC users may not operate above a flat wake speed.
    (ii) PWC users are prohibited from landing or launching within the 
unit.
    (3) 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: February 13, 2006.
Paul Hoffman,
Deputy Assistant Secretary, Fish and Wildlife and Parks.
 [FR Doc. E6-2643 Filed 2-23-06; 8:45 am]
BILLING CODE 4312-52-P