[Federal Register Volume 71, Number 37 (Friday, February 24, 2006)]
[Proposed Rules]
[Pages 9488-9495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2647]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD42


Gateway National Recreation Area, Sandy Hook Unit, 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 an 
area for the limited purpose of providing passage access for personal 
watercraft (PWC) through park waters in the Sandy Hook 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. The 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 Jamaica Bay unit of GATE, New York/New 
Jersey is published 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-
AD42, by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for submitting electronic comments.
--E-mail NPS at GATE_PWCComments @louisberger.com. Use RIN 1024-AD42 
in the subject line.
--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,

[[Page 9489]]

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 the preferred alternative for the Sandy Hook Unit of 
GATE in 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 for each unit, and those 
alternatives should also be reviewed and considered when making 
comments on this proposed rule. The EA may be viewed at http://nps.gov/gate/pwc/ea.pdf.

Personal Watercraft Regulation

    On March 21, 2000, the National Park Service (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 for 21 parks, lakeshores, 
seashores, and recreation areas, until the park unit adopted a special 
regulation 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 continue.

Description of Gateway National Recreation Area and the Sandy Hook 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 Sandy Hook 
Unit. The proposed rule designating areas where PWC may be used in the 
Jamaica Bay unit of GATE, New York/New Jersey is published elsewhere in 
today's Federal Register.
    The Sandy Hook Unit is located on a largely undisturbed peninsula 
at the northern end of the New Jersey coast; this unit encompasses 
approximately 1,665 land acres, including 7.5 miles of ocean beaches 
and sheltered bayside coves and hundreds of acres of ecologically 
significant barrier beach vegetation. The area features ocean beaches, 
Sandy Hook Bay, salt marshes, historic Fort Hancock, and Sandy Hook 
lighthouse. At the north end of the unit is the Fort Hancock complex. 
Hiking trails lead to dunes, ponds, a maritime holly forest, and some 
of the richest bird habitat in New Jersey.
    Gateway National Recreation Area is unique from other national park 
units in that it has few natural buffer zones and exists where impacts 
from human use are constantly changing the environment. The lands and 
waters of GATE represent the last remnants of the original shoreline 
and provide a coastal recreation resource that may in the near future 
serve more visitors than any other 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 demonstrated the potential for 
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 within natural systems to 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 national park system 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

[[Page 9490]]

authority to regulate activities within the National Park System 
boundaries occurring on waters subject to the jurisdiction of the 
United States.

PWC Use at Gateway National Recreation Area and the Sandy Hook Unit

    Water-based recreational activity at GATE, including wading, 
swimming, fishing, and boating, are the most popular activities in the 
park. This can be attributed to the fact that 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. The 
primary use of the open water resources in the Sandy Hook unit is from 
powerboats and secondarily by PWC owners. Motorized watercraft using 
the water resources typically range 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 before the April 22, 2002, prohibition. 
Other water activities include sailing, kayaking, canoeing, 
windsurfing, and kite-skiing. In the past, the majority of the PWC use 
occured in the Staten Island Unit, followed closely by the Jamaica Bay 
Unit. Personal watercraft use at Sandy Hook was limited.
    Personal watercraft use within GATE has probably occurred since PWC 
were first 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, use still continued to climb slowly prior to 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 is most popular for 
approximately six months of the year.
    Before the general regulation (36 CFR 3.24) on PWC use was 
effective on April 22, 2002, of the three GATE units, only the Sandy 
Hook Unit had actively managed and restricted PWC use within its 
boundaries. The restrictions were accomplished through the use of the 
Superintendent's Compendium. Since June 1990, all waters in Horseshoe 
Cove, north of a line which runs from the end of the sand spit 120' ESE 
to the shoreline of Sandy Hook, all waters within Spermaceti Cove, and 
all waters east of a line from the south end of Skeleton Island to the 
north End of Plum Island have been closed to PWC use.
    Personal watercraft use in the Sandy Hook Unit is limited due to 
restrictions that cover large portions of the unit and unfavorable 
ocean and bay conditions. Occasionally violation notices are issued to 
PWC users who enter restricted areas. According to NPS records, between 
2000 and 2001, the Sandy Hook Unit had an annual average of 17,309 
watercraft visits, or an average of 108 per day over a 160-day season. 
Of this daily average, 15% (16) were assumed to be PWC.
    The heaviest PWC use season is between July and September, when 
launches take place south of the unit from private and public 
properties and marinas, also along the area between Sandy Hook and the 
mainland. The Atlantic Highlands Municipal Harbor is the largest marina 
in Sandy Hook Bay, and approximately 35% its use is from PWC users. The 
marina regulates marine operations by prohibiting water-skiing and wave 
jumping within 100 feet of another vessel.
    Of particular concern is the impact to GATE's estuaries, which 
include open salt water, salt marshes, and 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 
habitat for hundreds of birds, fish, mammals, reptiles, amphibians, 
shellfish, and other invertebrate species. Water based recreational 
activity competes for use of the shoreline with wildlife. Due to the 
delicate nature of these areas and other visitor experience issues the 
NPS is recommending that PWC use should be prohibited, except to 
provide passage through the park waters when traveling in the 
Shrewsbury River Channel.

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 open for public review and comment from May 15 to June 
15, 2003. Copies of the EA may be downloaded at http://nps.gov/gate/pwc/ea.pdf.
    The purpose of the EA is to evaluate a range of alternatives and 
strategies for the management of PWC use 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 the Sandy Hook Unit:
    Under alternative A, a special regulation would be promulgated to 
continue the current management and regulation of PWC, as provided for 
in the Superintendent's Compendium for the Sandy Hook Unit. Personal 
watercraft use would continue to be prohibited from all waters in 
Horseshoe Cove, Spermaceti Cove, the area between the south end of 
Skeleton Hill Island and the north end of Plum Island, and within 500 
feet of swimming beaches or 300 feet of other beaches. This alternative 
is considered the ``baseline'' alternative to compare against other 
management strategies, including closure of the unit to PWC use. 
Operational restrictions at the unit would include those regulations 
mandated by New Jersey State boating regulations.
    Under alternative B, PWC use would continue but would be limited to 
the navigational channels in the Sandy Hook Unit. Personal watercraft 
use would be prohibited in all NPS jurisdictional waters in Sandy Hook 
Bay except for the Shrewsbury River Channel and the Sandy Hook Channel. 
The oceanside of the unit would be closed to PWC use. All other 
operational restrictions at the unit, including the New Jersey State 
boating regulations, would continue to be enforced, as described under 
alternative A.
    Under alternative C, PWC use would continue but only in the 
navigational channel connecting the Shrewsbury River (at the 
southernmost boundary of the unit) with the waters of Sandy Hook Bay 
west of the park boundary. Personal watercraft use would not be allowed 
in the Sandy Hook Channel, the False Hook Channel (which parallels the 
Atlantic coast beaches), or in any of the oceanside waters. As 
described under alternative A, all operational restrictions, including 
the New Jersey State boating regulations, would continue to be enforced 
within the Shrewsbury River Channel.
    The final alternative is a no-action alternative. The no-action 
alternative

[[Page 9491]]

assumes a scenario of discontinuing all PWC use within this national 
park system unit. The NPS would take no further action to promulgate a 
special regulation to retain PWC use, which would result in a ban on 
PWC use within the unit, including the portions of the Shrewsbury River 
Channel and the Sandy Hook Channel within the unit.
    A preferred alternative is selected for each unit 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. The following summarizes the 
preferred alternative at the Sandy Hook Unit.
    Based on the environmental analysis prepared for PWC use at GATE, 
Sandy Hook Unit, alternative C is the preferred alternative. 
Alternative C allows limited and restricted PWC use under a special 
regulation solely for the purpose of access to waters outside of the 
park. This document proposes regulations to implement alternative C.
    Under alternative C, PWC use would not be allowed within the park 
boundaries of the Sandy Hook Unit, except that PWC would only be 
allowed to transit the navigational channel connecting the Shrewsbury 
River (at the southernmost boundary of the unit) with the waters of 
Sandy Hook Bay west of the park boundary. Operational restrictions at 
the unit include those restrictions imposed by New Jersey State boating 
regulations.
    As previously noted, NPS will consider the 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 Sandy Hook 
Unit of GATE. 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 only the portion of the Shrewsbury River 
Channel within the jurisdiction of the Sandy Hook Unit would be open to 
PWC use. This portion of the Shrewsbury River Channel consists of 
approximately 17 acres of surface water with an average depth of over 
13 feet, which is slightly deeper than the 8-to 12-foot average depth 
of the unit's waters overall. This restriction would contribute to 
improved water quality by eliminating PWC pollutants and sediment 
suspension in shallow water areas of the unit. However, PWC use would 
be concentrated in a smaller area, resulting in more localized and 
intensified adverse effects of PWC pollutants before they are 
dispersed.
    Since PWC use would be banned completely from the unit's oceanside 
waters (park boundary extends for quarter mile offshore), this proposed 
rule would have a beneficial impact on water quality and associated 
biota on this side of Sandy Hook. Impacts on water quality in the 
unit's bayside waters would be somewhat greater than under other 
options considered because PWC use would be concentrated within 
approximately 17 acres of surface water within the Shrewsbury River 
Channel. Currents in this navigational channel are swift, and tide- and 
wind-driven mixing would rapidly dilute PWC pollutants in this area. 
Impacts from PWC pollutants under ecotoxicological and human health 
benchmarks are expected to be negligible in 2002 and 2012. Cumulative 
impacts on aquatic organisms and human health from all motorized 
watercraft emissions would be negligible in all areas in 2002 and 2012. 
Therefore, this proposed rule 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

[[Page 9492]]

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, only Shrewsbury River Channel within the 
Sandy Hook Unit would be open to PWC use. Restricting PWC use to the 
Shrewsbury River Channel within NPS boundaries, with no PWC use in 
oceanside waters, would result in negligible adverse impacts from CO 
and PM emissions. Located in an ozone non-attainment area, there would 
be minor adverse impacts from NOX, while impacts from VOC 
would be moderate in 2002, decreasing to minor by 2012. Overall, 
emissions from all boating activities would result in moderate adverse 
impacts from CO and negligible adverse impacts from PM. For ozone 
precursors in a non-attainment area, impacts from NOX would 
be moderate adverse and from VOC major adverse. Therefore, this 
proposed rule would not impair air quality resources.
    Personal watercraft annual emissions would result in moderate 
adverse impacts for ozone exposure and negligible impacts for 
visibility. There are no perceptible visibility impacts or ozone injury 
on plants. Cumulative emissions from all PWC and other motorized 
boating activities would result in moderate adverse impacts related to 
ozone exposure and negligible impacts for visibility. 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 continually 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 constant 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.
    Only the Shrewsbury River Channel in the Sandy Hook Unit would be 
open to PWC use under the proposed rule. Personal watercraft use that 
was allowed before April 22, 2002, on the oceanside and limited bayside 
areas of the unit would be eliminated. Other motorboat access to the 
unit's waters would not be affected. Personal watercraft-related noise 
impacts would be negligible over the short and long term and would 
mostly be caused by continued use outside unit boundaries. Ambient 
levels are higher on the bayside and would be slightly reduced from 
those previous to the ban as a result of prohibiting PWC within the 
park (up to a quarter mile off shore) except for use in the Shrewsbury 
River Channel. Due to the level of human activity and use restrictions, 
PWC use would result in negligible adverse impacts on other visitors 
and the natural soundscapes. Prohibiting PWC use on the oceanside of 
the unit would have a beneficial impact, reducing noise levels from PWC 
use.
    Personal watercraft use restrictions would limit the areas of PWC 
use, with beneficial impacts on both the oceanside and bayside. Noise 
impacts would be negligible over the short and long term. Cumulative 
impacts of boating noise, ambient noise levels, and PWC noise would 
range from negligible to minor adverse, depending on location and time 
of year and 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, only the Shrewsbury River Channel would be 
open to PWC use in the Sandy Hook Unit. Prohibiting PWC use from all 
other areas within the unit would further minimize the potential for 
adverse impacts on wildlife, habitat, and aquatic fauna resulting in a 
beneficial impact. Negligible adverse impacts over the short and long 
term could result from disturbing waterfowl and other wildlife in open 
water near the Shrewsbury River Channel. Future increases in PWC use 
are likely around the Sandy Hook Unit, along with increases in other 
motorized watercraft use in and adjacent to the unit, with a greater 
potential for adverse effects to wildlife and habitat in the unit. The 
intensity of adverse impacts would be minor and indirect over the short 
and long term because species sensitive to noise and human activity are 
not expected to regularly occur in high-use areas or immediately 
adjacent habitats during peak periods. Therefore, limiting the area 
exposed to disturbance by PWC use would not impair wildlife, wildlife 
habitat, or aquatic fauna.

Threatened, Endangered, or Special Concern Species

    This proposed rule aims to improve the status of GATE's four listed 
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,

[[Page 9493]]

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, 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 to occur in the 
Sandy Hook Unit include the Kemp's ridley sea turtle, leatherback sea 
turtle, northern right whale, humpback whale, and fin whale. Federally 
listed threatened wildlife species documented to occur in the area 
include the piping plover, loggerhead sea turtle, and northeastern 
beach tiger beetle.
    Personal watercraft use would only be allowed in the Shrewsbury 
River Channel, which would minimize the potential for adverse impacts 
on special status species occurring in the unit. Impacts to species in 
nearshore and shoreline areas would be beneficial since most of these 
areas would be unaffected by PWC use. Closing all ocean beaches to PWC 
use within the unit would minimize the potential for disturbance of 
special status shorebirds nesting, foraging, or resting along the ocean 
beaches. Restricting PWC access from shallow water habitat would also 
enhance the quality habitat for sea turtles that may occur in the area. 
The proposed rule is not likely to adversely affect threatened, 
endangered, or special concern species that occur in the Sandy Hook 
Unit.

Shoreline Vegetation

    This proposed regulation intends to regulate PWC use to reduce 
erosion in areas where shoreline vegetation is extremely sensitive and 
to manage PWC use to protect sensitive shoreline areas (vegetation/
erosion) from PWC activity and access.
    Under the proposed rule for the Sandy Hook Unit impacts to 
shoreline and tidal wetland vegetation and habitats would be beneficial 
because all shoreline and nearshore areas would be closed to PWC use. 
Cumulative impacts would be minor, direct and indirect, and adverse 
over the short and long term because of continued, limited access to 
shallow water areas by conventional motorized watercraft and continued 
foot traffic around landing areas. 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

    Impacts would be both short and long term and minor to moderate as 
a consequence of closing most areas of the unit to PWC use. The 
Shrewsbury River Channel would remain open to PWC use. Other areas 
outside of NPS boundaries would remain available to PWC users.

Impacts on Other Boaters

    Interactions between other boaters and PWC operators would continue 
on a limited basis within the Shrewsbury River Channel, but potential 
impacts on the non-PWC boater visitor experiences would be reduced 
because of the prohibition of PWCs in other use areas. Based on this 
analysis, the proposed rule would have negligible adverse impacts in 
the Shrewsbury River Channel and beneficial impacts elsewhere.

Impacts on Other Visitors

    Other visitors would have limited contact with PWC operators. The 
effects on park visitors would be beneficial because PWC users would be 
prohibited from operating within park waters (except within the 
Shrewsbury River Channel) and prohibited from landing anywhere within 
the park.
    Therefore, this proposed rule would have beneficial impacts on the 
experiences of visitors other than PWC users. There would be minor to 
moderate adverse impacts on PWC users as a consequence of closing most 
areas of the unit to PWC use other than the Shrewsbury River Channel. 
Cumulative impacts on all PWC users would be negligible to minor 
because areas outside the unit would remain open to PWC use. Impacts on 
other boaters, as well as other visitors onshore, would be beneficial 
within the unit and negligible adverse outside of the unit, with 
potential for increased congestion in the waterways outside the park. 
Most visitors would continue to be satisfied with their experiences at 
the Sandy Hook 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 recreation users, 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 recreational users have a 
``right'' to enjoy this sport.
    Closing most of Sandy Hook's waters to PWC use would have 
beneficial impacts on swimmers and other boaters. There would be a 
minor potential for accidents between PWC users and other boaters in 
the Shrewsbury River Channel. An increased potential for accidents 
between PWC users and other boaters could occur outside NPS waters. 
Some beneficial impacts would result from restrictions on PWC use and 
reduced potential for conflicts and accidents.

The Proposed Rule

    As established by the April 2000 National Park Service rule, PWC 
use is prohibited in all NPS areas unless determined appropriate. The 
process used to identify appropriate PWC use at GATE considered the 
known and potential effects of PWC on park natural resources, 
traditional uses, and public health and safety.
    National Park Service proposes to allow limited PWC use at GATE 
under a special regulation in Sec.  7.29. Since 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 in the 
Sandy Hook Unit only in the navigational channel connecting the 
Shrewsbury River (at the southernmost boundary of the unit) with the 
waters of Sandy Hook Bay west of the park boundary. Also this proposed 
rule would prohibit PWC users from launching or landing PWCs within the 
Sandy Hook Unit unit.
    In addition to the limitations in the proposed special regulation, 
all State and Federal regulations regarding PWC use will be enforced by 
the NPS pursuant to 36 CFR 3.1. For the Sandy Hook Unit this would mean 
New Jersey law.

[[Page 9494]]

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 Economic Impact 
Analysis (EIA) prepared for PWC use at all three units. The EIA may be 
viewed on the park's Web site at http://nps.gov/gate/pwc/ea.pdf. 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.

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 from the Web at: http://nps.gov/gate/pwc/ea.pdf.

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

[[Page 9495]]

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 e-mail 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-AD42, by 
any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov Follow the 
instructions for submitting electronic comments.
--E-mail at GATE--PWCComments @louisberger.com Use RIN 1024-AD42 in the 
subject line.
--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 (f) to read as follows:


Sec.  7.29  Gateway National Recreation Area

* * * * *
    (f) Personal watercraft (PWC): Sandy Hook Unit.
    (1) PWC use is allowed in the Sandy Hook Unit of Gateway National 
Recreation Area only in that portion of the Shrewsbury River Channel 
connecting the Shrewsbury River (at the southernmost boundary of the 
unit) with the waters of Sandy Hook Bay, west of the park boundary.
    (2) Launching or landing PWCs within the Sandy Hook Unit is 
prohibited.
    (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 for Fish and Wildlife and Parks.
[FR Doc. E6-2647 Filed 2-23-06; 8:45 am]
BILLING CODE 4312-52-P