[Federal Register Volume 71, Number 174 (Friday, September 8, 2006)]
[Rules and Regulations]
[Pages 53020-53032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7502]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD44


Cape Lookout National Seashore, Personal Watercraft Use

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This final rule designates areas where personal watercraft 
(PWC) may be used to access Cape Lookout National Seashore, North 
Carolina. This final rule implements the provisions of the National 
Park Service (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.

DATES: Effective Date: This rule is effective September 8, 2006.

ADDRESSES: Mail inquiries to Superintendent, Cape Lookout National 
Seashore, 131 Charles Street, Harkers Island, NC 28531.

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

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). The regulation prohibits PWC use in all national park 
units unless the NPS determines that this type of water-based 
recreational activity is appropriate for the specific park unit based 
on the legislation establishing that park, the park's resources and 
values, other visitor uses of the area, and overall management 
objectives. The regulation banned PWC use in all park units effective 
April 20, 2000, except for 21 parks, lakeshores, seashores, and 
recreation areas. The regulation established a 2-year grace period 
following the final rule publication to provide these 21 park units 
time to consider whether PWC use should be permitted to continue.

Description of Cape Lookout National Seashore

    Cape Lookout National Seashore was established by Congress in 1966 
to conserve and preserve for public use and enjoyment the outstanding 
natural, cultural, and recreational values of a dynamic coastal barrier 
island environment for future generations. Cape Lookout National 
Seashore is a low, narrow, ribbon of sand located three miles off the 
mainland coast in the central coastal area of North Carolina and 
occupies more than 29,000 acres of land and water from Ocracoke Inlet 
on the northeast to Beaufort Inlet to the southwest. The national 
seashore consists of four main barrier islands (North Core Banks, 
Middle Core Banks, South Core Banks, and Shackleford Banks), which 
consist mostly of wide, bare beaches with low dunes covered by 
scattered grasses, flat grasslands bordered by dense vegetation, and 
large expanses of salt marsh alongside the sound. Congressionally 
established boundaries include 150' of water from the mean low 
waterline on the sound side of all islands. There are no road 
connections to the mainland or between the islands.
    Coastal barrier islands, such as those located in Cape Lookout 
National Seashore, are unique land forms that provide protection for 
diverse aquatic habitats and serve as the mainland's first line of 
defense against the impacts of severe coastal storms and erosion. 
Located at the interface of land and sea, the dominant physical factors 
responsible for shaping coastal landforms are tidal range, wave energy, 
and sediment supply from rivers and older, pre-existing coastal sand 
bodies. Relative changes in local sea level also profoundly affect 
coastal barrier island diversity. Coastal barrier islands exhibit the 
following six characteristics:
     Subject to the impacts of coastal storms and sea level 
rise.
     Buffer the mainland from the impact of storms.
     Protect and maintain productive estuarine systems which 
support the nation's fishing and shellfishing industries.
     Consist primarily of unconsolidated sediments.
     Subject to wind, wave, and tidal energies.
     Include associated landward aquatic habitats which the 
non-wetland portion of the coastal barrier island protects from direct 
wave attack.
    Coastal barrier islands protect the aquatic habitats between the 
barrier island and the mainland. Together with their adjacent wetland, 
marsh, estuarine, inlet, and nearshore water habitats, coastal barriers 
support a tremendous variety of organisms. Millions of fish, shellfish, 
birds, mammals, and other wildlife depend on barriers and their 
associated wetlands for vital feeding, spawning, nesting, nursery, and 
resting habitat.
    Shackleford Banks contains the park's most extensive maritime 
forest as well as wild horses that have adapted to this environment 
over the centuries. The islands are an excellent place to see birds, 
particularly during spring and fall migrations. A number of tern 
species, egrets, herons, and shorebirds nest here. Loggerhead turtles 
climb the beaches at nesting time.

[[Page 53021]]

Purpose of Cape Lookout National Seashore

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

Significance of Cape Lookout National Seashore

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

Authority and Jurisdiction

    Under the National Park Service 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 authorizes the NPS, through the Secretary of 
the Interior, to ``make and publish such rules and regulations as he 
may deem necessary or proper for the use and management of the parks * 
* *.''
    16 U.S.C. 1a-1 states, ``The authorization of activities shall be 
conducted in light of the high public value and integrity of the 
National Park System and shall not be exercised in derogation of the 
values and purposes for which these various areas have been established 
* * *'' (16 U.S.C. 3).
    As with the United States Coast Guard (USCG), NPS's regulatory 
authority over waters subject to the jurisdiction of the United States, 
including navigable waters and areas within their ordinary reach, 
derives from the U.S. Constitution. In regard to the NPS, based upon 
the Property and Commerce Clauses, Congress in 1976 directed the NPS to 
``promulgate and enforce regulations concerning boating and other 
activities on or relating to waters within areas of the National Park 
System, including waters subject to the jurisdiction of the United 
States * * *.'' (16 U.S.C. 1a-2(h)). In 1996, the NPS published a final 
rule (61 FR 35136, July 5, 1996), amending 36 CFR 1.2(a)(3) to clarify 
its authority to regulate activities within the National Park System 
boundaries occurring on waters subject to the jurisdiction of the 
United States.
    Motorboats and other watercraft have been in use at Cape Lookout 
National Seashore since the park was established in 1966. It is unknown 
when PWC use first began at the national seashore. In compliance with 
the settlement with Bluewater Network, the national seashore closed to 
PWC use in April 2002. Personal watercraft are prohibited from 
launching or landing on any lands, boat ramps or docks within the 
boundaries of the national seashore. Personal watercraft may not be 
towed on trailers or carried on vehicles within national seashore 
boundaries except at the Harker's Island unit. This closure pertains to 
all of the barrier islands within the national seashore and the waters 
on the soundside of the islands within 150 feet of the mean low 
waterline. Outside of the park boundary, PWC use is governed by North 
Carolina PWC regulations. At present, the areas that were previously 
used by PWC owners for landing are closed with signs.
    Prior to the PWC closure, all areas of the park were open to PWC 
use. However, the majority of PWC use was concentrated in two areas of 
the national seashore that receive the heaviest visitor day-use in the 
park: (1) On the sound-side of South Core Banks at the Lighthouse (from 
the Lighthouse dock through Barden Inlet and Lookout Bight), and (2) 
the Shackleford Banks from Wade Shores west to Beaufort Inlet. Personal 
watercraft use of ocean beaches was rare due to rough surf conditions 
in the ocean and the hazard of beaching PWC in the ocean surf. Some PWC 
use occurred along North and South Core Banks from Portsmouth Village 
at the northern end of the national seashore to the lighthouse. This 
use was infrequent because of the prevalence of marshes and general 
lack of sound-side beaches along Core Banks, the large expanse of open 
water in Core Sound between the barrier islands and mainland North 
Carolina, and the low population of the adjacent communities in the 
``down east'' as this portion of the national seashore is known 
locally. At public meetings held in October 2001, several participants 
indicated they had used their PWC to travel from locations such as 
Atlantic and Davis to the barrier islands.
    The popularity of Cape Lookout and Shackleford Banks where PWC use 
was concentrated can be attributed to the excellent soundside beaches 
in these areas, the attraction of the Cape Lookout lighthouse, 
traditional use of Shackleford Banks, their proximity to major inlets, 
and their close proximity to the three largest coastal population 
centers in Carteret County: Atlantic Beach, Morehead City, and 
Beaufort.

NPRM and Environmental Assessment

    On December 29, 2005, the National Park Service published a Notice 
of Proposed Rulemaking (NPRM) for the operation of PWC at Cape Lookout 
National Seashore (70 FR 77089). The proposed rule for PWC use was 
based on alternative B (one of three alternatives considered) in the 
Environmental Assessment (EA) prepared by NPS for Cape Lookout National 
Seashore. The EA was open for public review and comment from January 
24, 2005 to February 24, 2005. Copies of the EA may be downloaded at 
http://www.nps.gov/calo/parkplan.htm.
    The purpose of the EA was to evaluate a range of alternatives and 
strategies for the management of PWC use at Cape Lookout National 
Seashore to ensure the protection of park resources and values while 
offering recreational opportunities as provided for in the National 
Seashore's enabling legislation, purpose, mission, and goals. The 
analysis assumed alternatives would be implemented beginning in 2003 
and considered a 10-year period, from 2003 to 2013.
    The EA evaluated three alternatives concerning the use of PWC at 
Cape Lookout National Seashore. The alternatives considered include:

[[Page 53022]]

     No-Action Alternative: Do not reinstate PWC use within the 
national seashore. No special regulation would be promulgated.
     Alternative A: Reinstate PWC use as previously managed 
under a special regulation.
     Alternative B: Reinstate PWC use under a special NPS 
regulation with additional management prescriptions.
    Based on the analysis prepared for PWC use at Cape Lookout National 
Seashore, alternative B is considered the environmentally preferred 
alternative because it best fulfills park responsibilities as trustee 
of sensitive habitat; ensures safe, healthful, productive, and 
aesthetically and culturally pleasing surroundings; and attains a wider 
range of beneficial uses of the environment without degradation, risk 
of health or safety, or other undesirable and unintended consequences.
    This final rule contains regulations to implement alternative B at 
Cape Lookout National Seashore.

Summary of Comments

    A proposed rule on PWC use in the Cape Lookout National Seashore 
(Cape Lookout) was published in the Federal Register for public comment 
on December 29, 2005, with the comment period lasting until February 
27, 2006. NPS received 1,685 timely written pieces of correspondence 
regarding the EA and proposed regulation. Of the pieces of 
correspondence, 5 were from government agencies, 11 were from 
businesses, conservation groups, or recreation groups, and 1,669 were 
from unaffiliated individuals. A total of 148 comments supported 
alternative A, 25 comments supported alternative B, 4 comments opposed 
alternative B, 1519 comments supported the no action alternative, and 
11 comments opposed the no action alternative. Within the analysis, the 
term ``commenter'' refers to an individual, organization, or public 
agency that responded. The term ``comments'' refers to statements made 
by a commenter.

General Comments

    1. Several commenters suggested that the access restrictions, 
closures, and boating rules should be applied equally to all motorized 
vessels, and not just to PWC.
    NPS Response: As described under the Scope of the Analysis in the 
Purpose and Need section of the EA, the focus of the EA is to define 
management alternatives specific to PWC use. The plan analyzed a 
variety of impact topics to determine if personal watercraft use was 
consistent with the park's enabling legislation and management goals 
and objectives. The goal of the EA was not to determine if these 
restrictions should also be applied to boats. Cape Lookout will 
consider subsequent rulemaking to address this issue for other 
watercraft and if subsequent rulemaking proceeds, that action would be 
subject to NEPA analysis and public comment.
    2. One commenter stated that there is a lack of site-specific data 
in the EA.
    NPS Response: The scope of the EA did not include the conduct of 
site-specific studies regarding potential effects of PWC use on 
wildlife species, submerged aquatic vegetation beds, or visitor 
experience at Cape Lookout National Seashore. Analysis of potential 
impacts of PWC use on wildlife, submerged aquatic vegetation beds, and 
visitor experience at the national seashore was based on best available 
data, input from park staff, and the results of analysis using that 
data.
    3. One commenter stated that the current EA does not discuss 40 CFR 
1502.22 of the Council on Environmental Quality (CEQ) National 
Environmental Policy Act (NEPA) Regulations, which tells agencies that 
they have to make it clear when information is incomplete or 
unavailable.
    NPS Response: The EA discusses Sec.  1502.22 of the CEQ NEPA 
Regulations in the Environmental Consequences section under the Summary 
of Laws and Policies on page 92. The EA mentions in several places that 
data is unavailable or had not been collected, including soundscapes 
and wildlife and wildlife habitat sections. Best available data, 
literature, and consultation with subject matter experts were used to 
determine impacts, as disclosed in the EA.
    4. One commenter stated that any attempt to bar PWC or disparately 
regulate PWC would transgress NPS' regulatory duties and would be 
arbitrary and capricious in light of the EA's findings.
    NPS Response: Cape Lookout National Seashore was established in 
1966. The purpose of Cape Lookout is to conserve and preserve for 
public use and enjoyment the outstanding natural, cultural, and 
recreational values of a dynamic coastal barrier island environment for 
future generations. The preferred alternative meets the objectives of 
the national seashore to a large degree, as well as meeting the purpose 
and need for action, and therefore is within the legislative and 
regulatory duties of Cape Lookout National Seashore.
    5. One commenter stated that PWC use conflicts with NPS' mission 
and purpose.
    NPS Response: Cape Lookout National Seashore was established to 
conserve and preserve for public use and enjoyment the outstanding 
natural, cultural, and recreational values of a dynamic coastal barrier 
island environment for future generations. The national seashore serves 
as both a refuge for wildlife and a pleasuring ground for the public, 
including developed visitor amenities. Under this regulation PWC use is 
limited to providing a means of transportation to the island for the 
user to enjoy the natural, cultural, and recreational values of Cape 
Lookout National Seashore.
    6. One commenter stated that the EA relies upon incorrect 
information regarding PWC numbers in the U.S. and uses outdated data 
from 2001 to guide its decision making process.
    NPS Response: A check of the National Marine Manufacturers 
Association (NMMA) Web site revealed that indeed, PWC numbers for the 
years 2000 and 2001 are higher than quoted in the EA. Regardless, these 
are nationwide PWC numbers that were not used in the impacts analysis. 
The numbers used in the impacts analysis were park-specific, based on 
available visitor data and observations by Cape Lookout National 
Seashore staff.
    7. One commenter stated that NPS has miscalculated the population 
growth rate of PWC.
    NPS Response: The numbers used in the impacts analysis were park-
specific, based on available visitor data, park ranger counts in 2000 
and 2001, and observations by seashore staff. They were not based on 
USCG data.
    8. One commenter is concerned that the current EA is being 
politically manipulated in order to reauthorize PWC operation.
    NPS Response: Due to the increased level of public comment, Cape 
Lookout reanalyzed the issues and impact topics described in the 2001 
Determination in more detail in the EA. The 2001 Determination can be 
viewed at: http://www.nps.gov/calo/parkplan.htm. The results of 
the in-depth analysis in the EA indicated that impacts range from 
negligible to moderate for all impact topics, and the NPS chose 
alternative B as the preferred alternative.
    9. One commenter stated that the Proposed Rule should be redrafted 
to incorporate the ban on PWC that exists outside of NPS General 
Regulation.
    NPS Response: The ban or prohibition that exists at Cape Lookout is 
the result of NPS General Regulations that were promulgated in 2000 and 
took effect in 2002. This was a servicewide prohibition and affected 
all parks without special regulations. This

[[Page 53023]]

rulemaking, or special regulation, will open Cape Lookout to PWC use, 
with restrictions. Only parks with special regulations can allow PWC 
use.
    10. One commenter stated that PWC are designated as Class A boats 
by the USCG, and are subject to the same rules and registration fees as 
all other powered craft.
    NPS Response: Yes, and the NPS adopts applicable USCG regulations 
which are found in Title 33 CFR as well as applicable State laws and 
regulations within whose exterior boundaries a park is located. 
Therefore PWC are subject to the same rules and registration fees as 
all other powered craft.
    11. One commenter asked why the PWC closure was rescinded in 2001, 
and why NPS wants to take the proposed action.
    NPS Response: Due to the increased level of public comment and 
congressional interest, Cape Lookout rescinded the 2001 closure to 
allow the issues and impact topics described in the 2001 Determination 
to be considered in more detail in the EA. The 2001 Determination can 
be viewed at: http://www.nps.gov/calo/parkplan.htm. As described in the 
EA, alternative B is the preferred alternative because, with 
limitations on PWC use and other mitigation, impacts can be minimized 
and managed.
    12. One commenter stated that the spread of exotic species related 
to PWC operation is overlooked in the EA.
    NPS Response: This topic has been addressed in the errata to the EA 
as an issue that was considered but not further evaluated. After 
consultation with subject matter experts and available data, no exotic 
species are known to occur in areas accessible by PWC within Cape 
Lookout National Seashore.
    13. One commenter disagrees with the cumulative impacts analysis.
    NPS Response: NPS acknowledges that the area around Cape Lookout 
National Seashore is being developed and this may result in increased 
PWC use. However, the EA shows that allowing limited PWC access at Cape 
Lookout National Seashore, will not result in more than negligible to 
minor cumulative impact, even when all motor boats are included in the 
analysis.
    14. The EA and rule text should be rewritten to state that all 
obligations and restrictions would be imposed on the PWC operator, not 
the PWC equipment. Organization of the rule should also be improved.
    NPS Response: The text in the rule, errata to the EA, and the 
Finding Of No Significant Impact (FONSI) has been clarified to state 
that the restrictions will be imposed on the PWC operator, not the PWC 
equipment. Organization of the rule has also been improved and text was 
clarified.

Comments Regarding Alternatives

    15. One commenter stated that this environmental analysis could 
benefit greatly by constructing an alternatives matrix that shows on 
one axis the alternatives and on the other axis environmental 
conditions that might be affected.
    NPS Response: Table A: Summary of the Impact Analysis on page v of 
the EA provides an overview of which resource topics would be affected 
by each alternative. Alternatives A and B would impact water quality, 
air quality, soundscapes, shoreline and submerged aquatic vegetation, 
wildlife, aquatic fauna, threatened and endangered species, visitor use 
and experience, visitor conflicts and safety, cultural resources, and 
socioeconomics. Under the no-action alternative, none of the impact 
topics would be impacted by PWC since they would be banned, but all of 
the impact topics would be impacted to some capacity because of the 
cumulative impacts from boats.
    16. One commenter stated that the alternative to limit PWC use by 
season or time of day was considered but not analyzed further. However, 
it could make a viable alternative because it would ``minimize 
conflicts with other users in congested areas,'' which could be an 
important purpose for this action.
    NPS Response: Time of day restrictions already exist because North 
Carolina PWC regulations prohibit the use of PWC from sunset to sunrise 
and have been adopted by the NPS. Limiting PWC use by season was not 
considered viable since few defensible reasons were identified to 
exclude PWCs at one time of year or another. The most obvious reason to 
limit access by season, for protection of birds and endangered species 
from access by PWCs, other boats, vehicles and pedestrians, is already 
managed by general closures. Monitoring of bird nesting areas and 
implementation of closures is routinely accomplished by the park 
resource management staff.
    17. One commenter stated that the following three sections in the 
EA, ``Unavoidable Adverse Impacts,'' ``Loss in Long-term Availability 
or Productivity to Achieve Short-term Gain,'' and ``Irreversible or 
Irretrievable Commitments of Resources,'' pose some serious 
difficulties for the environmental impact analysis as a whole.
    NPS Response: Additional language has been added on the errata to 
the EA for the ``Unavoidable Adverse Impacts'' section to address the 
no-action alternative. The section ``Loss in Long-term Availability or 
Productivity to Achieve Short-Term Gain'' has been removed as per the 
errata because this section is required in Environmental Impact 
Statements, but is optional in EAs.
    The section ``Irreversible or Irretrievable Commitments of 
Resources'' discusses the minor use of fossil fuels to power PWC being 
an irretrievable commitment of this resource. Considering the very 
small number of PWC operators that use Cape Lookout National Seashore 
each year, which is estimated as less than one percent of visitors, the 
implementation of alternative B would not have more than a minor impact 
on irretrievable resources. Alternative B was identified as the 
environmentally preferred alternative because it meets the criteria 
established by the Council on Environmental Quality and the Department 
of the Interior (Department Manual) and also meets the purpose, needs, 
and objectives of this PWC EA.
    18. Several commenters stated that alternative B does not merit 
status as the environmentally preferred alternative and should be 
rejected because it discriminates against PWC, unreasonably restricts 
PWC use, jeopardizes the safety of PWC users, motorized boaters and 
swimmers, and undermines the park's regulatory objectives.
    NPS Response: The EA was written to evaluate the appropriateness of 
PWC use within the National Seashore. The objective of the EA, as 
described in the ``Purpose and Need'' Chapter, was to evaluate a range 
of alternatives and strategies for the management of PWC use in order 
to ensure the protection of park resources and values, while offering 
recreational opportunities as provided in the enabling legislation, 
purpose, mission, and goals. An analysis of personal watercraft use and 
the impact topics was provided under each alternative. The EA was 
designed to determine if PWC use, not motorized boat use in general, 
was consistent with the park's enabling legislation and management 
goals and objectives.
    19. Several commenters are concerned that the preferred alternative 
may violate the Organic Act by allowing the use of personal watercraft 
within Cape Lookout, which they believe will impair park resources or 
result in the derogation of park resources and values.
    NPS Response: The ``Summary of Laws and Policies'' section in the 
``Environmental Consequences'' chapter of the EA summarizes the three

[[Page 53024]]

overarching laws that guide the National Park Service in making 
decisions concerning protection of park resources. These laws, as well 
as others, are also reflected in NPS Management Policies. An 
explanation of how the Park Service applied these laws and policies to 
analyze the effects of personal watercraft on Cape Lookout National 
Seashore resources and values can be found under ``Impairment 
Analysis'' in the ``Methodology'' section of the EA.
    Impairment that is prohibited by the Organic Act and General 
Authorities Act is an impact that, in the professional judgment of the 
responsible NPS manager, would harm the integrity of park resources or 
values, including the opportunities that otherwise would be present for 
the enjoyment of those resources or values.
    An impairment to a particular park resource or park value may be 
indicated when the impact reaches the magnitude of ``major,'' as 
defined by its context, duration, and intensity. For each impact topic, 
the EA establishes thresholds or indicators of magnitude of impact. For 
each impact topic, when the intensity approached ``major,'' the park 
would consider mitigation measures to reduce the potential for 
``major'' impacts, thus reducing the potential for impairment.
    For the PWC regulations at Cape Lookout National Seashore the 
National Park Service has determined in the EA that the preferred 
alternative would not result in impairment of park resources or values.
    20. Several commenters support alternative B.
    NPS Response: Comment noted. NPS chose alternative B because it 
appears to meet the needs of most park visitors while continuing to 
protect the environment.
    21. A commenter stated that the PWC use restrictions as stated in 
the proposed rule are vague, confusing, and defective from an 
enforcement standpoint. There is also redundancy in the description.
    NPS Response: The description of alternative B states ``PWC would 
be allowed to access these areas * * * by remaining perpendicular to 
shore and operating at flat wake speed.'' This means that any other 
type of use would continue to be prohibited. All PWC use is prohibited 
in the National Park System by general regulation except as authorized 
by park specific special regulation. Language in the rule, errata to 
the EA, and the FONSI has been rewritten to clarify the type of PWC use 
authorized and locations within the national seashore where it is 
permitted.
    22. One commenter stated that management options such as flat wake 
zones, set backs, time and date restrictions were considered in the 
national rule and were determined to be too expensive to enforce and 
inadequate to protect park system resources.
    NPS Response: After analysis as part of the NEPA process, Cape 
Lookout National Seashore is proposing to implement flat wake 
restrictions for better protection of park resources and visitor 
safety. The flat wake restrictions should not be difficult to enforce 
at Cape Lookout because the restriction will apply to PWC in all 
locations within the park.
    23. One commenter stated that Alternative B undermines NPS's safety 
objective and endangers PWC users and other park visitors, bans PWC use 
in some park locations without justification, and severely limits use 
within the designated use areas, and that the EA overstates the 
potential impact of PWC use on park resources.
    NPS Response: The EA analyzed a variety of impact topics to 
determine if personal watercraft use was consistent with the park's 
enabling legislation and management goals and objectives. As a result 
of this analysis, it was determined that the management prescriptions 
under alternative B, Reinstate PWC Use with Additional Management 
Prescriptions, would best protect natural and cultural resources, 
mitigate PWC safety concerns, provide for visitor health and safety, 
and enhance overall visitor experience. The plan was designed to 
determine if PWC use, not motorboat use in general, was consistent with 
the park's enabling legislation and management goals and objectives.
    24. Many commenters support the no-action alternative. These 
commenters state that the EA provides no basis for overturning the Park 
Service's 2001 determination to ban PWC operation at Cape Lookout and 
that the preferred alternative breaks Federal law and fails to address 
many of the problems associated with PWC operation identified in the 
2001 determination. Finally, these commenters believe the EA overlooks 
important research, reaches conclusions without supporting 
documentation or scientific evidence, and appears to violate the terms 
of the court-ordered settlement agreement with Bluewater Network.
    NPS Response: A summary of the NPS rulemaking and associated 
personal watercraft litigation is provided in Chapter 1, Purpose of and 
Need for Action, Background. NPS believes it has complied with the 
court order and has assessed the potential impacts of personal 
watercraft on those resources identified in the settlement agreement, 
as well as other resources that could be affected. This analysis was 
done for every applicable impact topic with the best available data, as 
required by regulations (40 CFR 1502.22). Where data was lacking, best 
professional judgment prevailed using assumptions and extrapolations 
from scientific literature, other park units where personal watercraft 
are used, and personal observations of park staff. NPS believes that 
the EA is in full compliance with the court-ordered settlement and that 
the rationale for limited use within the national seashore has been 
adequately analyzed and explained.
    Due to the increased level of public comment and congressional 
interest, Cape Lookout reconsidered the issues and impact topics 
described in the 2001 Determination in more detail in the EA. The 2001 
Determination can be viewed at: http://www.nps.gov/calo/parkplan.htm. 
The results of the in-depth analysis in the EA indicated that potential 
impacts under Alternative B range from negligible to moderate for all 
impact topics, and chose Alternative B as the preferred alternative.
    25. Some commenters believe the no-action alternative discriminates 
against PWC operators.
    NPS Response: The objective of the EA, as described in the 
``Purpose and Need'' Chapter, was to evaluate a range of alternatives 
and strategies for the management of PWC use in order to ensure the 
protection of park resources and values, as provided in the enabling 
legislation, purpose, mission, and goals.
    26. The North Carolina Department of Environment and Natural 
Resources, Division of Coastal Management (DCM) suggests that a 
monitoring program be implemented to evaluate whether the adverse 
environmental effects of implementing the proposed action are, as 
expected, insignificant.
    NPS Response: The restrictions for Cape Lookout are only associated 
with the area that is within the park boundary. The only water area 
within the boundary is on the sound side where the boundary is 150 feet 
from low water. It would be difficult to differentiate any impacts that 
were due to PWC use outside the park boundary (150-foot zone) compared 
to use that is inside the park boundary (150-foot zone), since most of 
the aquatic resources move freely in and out of these areas, except for 
direct impacts on submerged aquatic vegetation (SAV). In addition, SAV 
only occurs in one area that is proposed to be reopened to PWC use 
under alternative B. Marine mammals would also not be likely to use the 
area within 150-feet from shore because it is too shallow. It would be

[[Page 53025]]

difficult to differentiate impacts between PWC use and motorboat use 
because PWC use is very low compared to motorboat use, and motorboats 
use both areas inside and outside the 150-foot zone.
    27. One commenter suggested reducing the number of access points to 
those already developed. Specifically, eliminate the following four 
access points from the regulation: Milepost 11B, Old Drum Inlet, New 
Drum Inlet, and Power Squadron Spit.
    NPS Response: The access points at Milepost 11B, Old Drum Inlet, 
and New Drum Inlet were chosen because they provide access to the 
seashore for those people that live in the ``down east'' area from 
Davis to Cedar Island. Without including these access points, there 
would be few opportunities for PWC access from towns north of Davis. 
These sandy inlets are convenient areas to land a boat or PWC and allow 
easy access to the ocean. The use of these areas also provides 
protection to the remaining marshy areas of the sound, where submerged 
aquatic vegetation is more likely to occur.
    Power Squadron Spit was included because it provides access to the 
southern-most portion of the park, which is a popular day-use area. 
This area near Lookout Bight consists of a protected sandy beach, and 
is heavily used by larger boats that utilize PWC or smaller inflatable 
boats to access the shore.

Comments Regarding Water Quality

    28. One commenter stated that, because the EA has not properly 
accounted for the pace at which the PWC manufacturers are converting to 
cleaner-running engine technologies that meet the EPA standards, the EA 
overstates the potential water quality impacts of resuming PWC use.
    NPS Response: The assumption of all personal watercraft using 2-
stroke engines in 2002 is recognized as conservative. It is protective 
of the environment yet follows the emission data available in 
California Air Resources Board (CARB) (1998) and Bluewater Network 
(2001) at the time of preparation of the EA. The emission rate of 3 
gallons per hour at full throttle is a mid-point between 3 gallons in 
two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per 
hour for an average 2000 model year personal watercraft (Bluewater 
Network 2001). The assumption also is reasonable in view of the 
initiation of production line testing in 2000 (EPA 1997) and expected 
full implementation of testing by 2006 (EPA 1996).
    Reductions in emissions used in the water quality impact assessment 
are in accordance with the overall hydrocarbon emission reduction 
projections published by the EPA (1996). EPA (1996) estimates a 52% 
reduction by personal watercraft by 2010 and a 68% reduction by 2015. 
The 50% reduction in emissions by 2013 (the future date used in the EA) 
is a conservative interpolation of the emission reduction percentages 
and associated years (2010 and 2015) reported by the EPA (1996) but 
with a one-year delay in production line testing (EPA 1997).
    Despite these conservative estimates, impacts to water quality from 
personal watercraft are judged to be negligible for all alternatives 
evaluated. Cumulative impacts from personal watercraft and other 
outboard motorboats also are expected to be negligible. If the 
assumptions used were less than conservative, the conclusions could not 
be considered protective of the environment, while still being within 
the range of expected use.
    29. One commenter stated that the EA's analysis is based on faulty 
premises that reflect worst case conditions.
    NPS Response: The estimates of personal watercraft use and 
emissions are based on the best information available at the time of 
preparation of the EA and are meant to be conservative (i.e., 
protective of the environment). By using conservative input assumptions 
in estimating impact to water quality, the probability of 
underestimating impacts is minimized.
    The evaporation rate for benzene (half-life of approximately 5 
hours at 25 [deg]C) is based on information presented in EPA (2001) and 
in Verschuren (1983). Because impacts to water quality were determined 
to be negligible before any discussion or application of this 
evaporation rate, it was not discussed in the impact assessments of the 
alternatives.
    As stated in Appendix A of the EA, the concentration of 
benzo(a)pyrene can be up to 2.8 mg/kg (or 2.07 mg/L) (Gustafson et al. 
1997). Because this concentration could be found in the gasoline used 
in Cape Lookout, it was used to be protective of the environment. It is 
not an unrealistic assumption. Annual sales of personal watercraft 
(200,000 units) are mentioned on page 7 of the EA. However, the text 
directs the reader to table 1 which shows that ownership declined after 
1995. The discussion of national trends is not germane to the estimate 
of PWC use in the national seashore since the numbers of personal 
watercraft and hours of use are based on observations by park staff 
(see page 102 of the EA).
    In summary, if changes in evaporation rates, concentrations of 
gasoline constituents, sales of personal watercraft, and rates of 
replacement of older personal watercraft were made as suggested, the 
conclusions of negligible impacts from personal watercraft would not 
change, because ``negligible'' is the lowest impact level that can be 
used in the EA (see page 106). However, these conclusions would no 
longer be considered as conservative and could be challenged by other 
parties.
    30. One commenter believes the EA ignores sales trends and relies 
on outdated statistics and assumptions, which inflate PWC sales and 
exaggerate PWC emissions.
    NPS Response: Annual sales of personal watercraft (200,000 units) 
are mentioned on page 6 of the EA. However, the text directs the reader 
to table 1, which shows that ownership declined after 1995. The 
discussion of national trends is not germane to the estimate of PWC use 
in the national seashore since the numbers of personal watercraft and 
hours of use are based on observations by park staff (see page 102 of 
the EA) and not national trends.
    If national sales of personal watercraft and rates of replacement 
of older personal watercraft were considered, the conclusions for 
impacts to water quality from personal watercraft would still be 
negligible.
    31. One commenter stated that most PWC manufacturers have changed 
to 4-cycle engines, which do not mix oil with the gasoline.
    NPS Response: The assumption of all PWC using 2-stroke engines in 
2003 is recognized as conservative. It is protective of the environment 
and follows the emission data available in CARB (1998) and Bluewater 
Network (2001) at the time of preparation of the EA. Emission rates 
were assumed to be reduced by 8 percent in 2003 in accordance with the 
EPA's estimate of hydrocarbon reduction (see page 104 of the EA). 
Despite these conservative estimates, impacts to water quality from PWC 
are judged to be negligible for all gasoline constituents, all areas, 
and all alternatives evaluated.
    32. One commenter stated that there is some confusion on 
irreversible or irretrievable commitments of resources should the 
proposed action be implemented.
    NPS Response: Agreed, there is confusion regarding the definitions 
of irreversible and irretrievable, but the confusion does not extend to 
the Cape Lookout EA. The National Environmental Policy Act (NEPA),

[[Page 53026]]

Section 102(2)(C)(v), does not distinguish between the two terms but 
instead lumps them together: ``Any irreversible and irretrievable 
commitments * * *'' and many EAs and EISs also simply lump the two 
terms together. While the two terms in question are not defined in NEPA 
or in the National Park Service Director's Order 12 (DO-12), 
they are defined in the National Park Service Handbook that accompanies 
DO-12 as follows: ``Irreversible impacts are those effects that cannot 
be changed over the long term or are permanent. An effect to a resource 
is irreversible if it (the resource) cannot be reclaimed, restored, or 
otherwise returned to its condition before the disturbance * * * An 
irretrievable commitment of resources refers to the effects to 
resources that, once gone, cannot be replaced.'' It is important to not 
worry about the semantics of these terms and instead be thorough in the 
disclosure to the public of any long-term, permanent effects to the 
park resources.
    The significance of personal watercraft using fossil fuel at Cape 
Lookout National Seashore (as it may affect air and water quality) has 
not been underestimated. In fact, the potential for impacts on these 
resources is quantitatively evaluated in the EA. The results indicate 
that PWC impacts to water quality and to air quality are negligible or 
nonexistent for all alternatives considered. These impacts could be 
termed inconsequential, especially in the context of other motorboats 
that outnumber personal watercraft 10 to 1 at the national seashore 
(see Table 15 of the EA).
    33. One commenter stated that the water quality analysis does not 
fully account for the rapid rate that unburned gasoline emitted from 
PWC evaporates from the water.
    NPS Response: Impacts to human health and the environment would be 
negligible for all gasoline constituents, all alternatives, and all 
areas. The term ``negligible'' is the lowest (least significant impact 
threshold) term available to describe impacts in the EA (see page 106). 
Because all impacts to water quality were judged to be negligible, the 
effect of evaporation was not discussed in detail in the results. 
However, the effect of evaporation/volatilization of gasoline 
constituents is discussed in two locations under ``Methodology and 
Assumptions.'' These processes are mentioned in paragraphs 5 and 7 on 
page 103 of the EA. Volatilization of gasoline constituents (BTEX, 
methyl tertiary-butyl ether (MTBE), and petroleum aromatic hydrocarbons 
(PAHs)) also is discussed in Appendix A: Approach to Evaluating Surface 
Water Quality Impacts.

Comments Regarding Air Quality

    34. One commenter stated that NPS does not sufficiently account for 
the rapid engine conversion that is occurring and improperly overlooks 
the emissions reductions that the PWC companies have already achieved.
    NPS Response: A conservative approach was used in the analysis, 
since the numbers of PWCs already converted to four-stroke engines are 
not known. In addition, the EPA model takes into account the reduction 
in emissions over time. Even with the conservative approach, the 
analysis for alternative B presented in the EA indicates that current 
PWC use at Cape Lookout National Seashore results in negligible impacts 
to air quality.
    35. One commenter stated that, while the EA correctly concludes 
that the short- and long-term human health impact from PWC emissions of 
hydrocarbons (HC) and nitrogen oxides (NOX) under 
alternatives A and B would be negligible, NPS nevertheless overstates 
actual emissions levels for these constituents.
    NPS Response: It is agreed that the relative quantity of HC + 
NOX are a very small proportion of the county-based 
emissions and that this proportion will continue to be reduced over 
time. The EA takes this into consideration in the analysis.
    For consistency and conformity in approach, NPS has elected to rely 
on the assumptions in the 1996 Spark Ignition Engine Rule which is 
consistent with the widely used NONROAD emissions estimation model. The 
outcome is that estimated emissions from combusted fuel may be more 
conservative, compared to actual emissions.
    36. One commenter stated that the EA's use of a study by Kado et 
al. is outdated, and the EA inaccurately uses the results of this 
study.
    NPS Response: The criteria for analysis of impacts from PWC to 
human health are based on the National Ambient Air Quality Standards 
(NAAQSs) for criteria pollutants, as established by the EPA under the 
Clean Air Act, and on criteria pollutant annual emission levels. This 
methodology was selected to assess air quality impacts for all NPS EAs 
to promote regional and national consistency, and identify areas of 
potential ambient standard exceedances. PAHs are not assessed 
specifically as they are not a criteria pollutant. However, they are 
indirectly included as a subset of total hydrocarbons, which are 
assessed because they are the focus of the EPA's emissions standards 
directed at manufacturers of spark ignition marine gasoline engines. 
Neither peak exposure levels nor National Institute for Occupational 
Safety and Health (NIOSH) nor Occupational Safety and Health 
Administration (OSHA) standards are included as criteria for analyzing 
air quality related impacts except where short-term exposure is 
included in a NAAQS.
    The Kado Study presented the outboard engine air quality portion of 
a larger study described in Outboard Engine and Personal Watercraft 
Emissions to Air and Water: A Laboratory Study (CARB 2001). In the CARB 
report, results from both outboards and personal watercraft (2-stroke 
and 4-stroke) were reported. The general pattern of emissions to air 
and water shown in CARB (2001) was 2-stroke carbureted outboards and 
personal watercraft having the highest emissions, and 4-stroke outboard 
and personal watercraft having the lowest emissions. The only 
substantive exception to this pattern was in NOX emissions 
to air- 2-stroke carbureted outboards and personal watercraft had the 
lowest NOX emissions, while the 4-stroke outboard had the 
highest emissions. Therefore, the pattern of emissions for outboards is 
generally applicable to personal watercraft and applicable to outboards 
directly under the cumulative impacts evaluations.
    37. One commenter stated that a proper PAH analysis, using the 
analytical approach set forth in the Lake Mead Report, refutes 
unsubstantiated claims by PWC opponents that PAH emissions from PWC 
operating in the Cape Lookout National Seashore will endanger human 
health.
    NPS Response: The EPA data incorporated into the 1996 Spark 
Ignition Marine Engine rule were used as the basis for the assessment 
of air quality, and not the Sierra Research data. It is agreed that 
these data show a greater rate of emissions reductions than the 
assumptions in the 1996 Rule and in the EPA NONROAD Model, which was 
used to estimate emissions.
    However, the level of detail included in the Sierra Research report 
has not been carried into the EA for reasons of consistency and 
conformance with the model predictions. Most states use the EPA NONROAD 
Model for estimating emissions from a broad array of mobile sources. To 
provide consistency with state programs and with the methods of 
analysis used for other similar NPS assessments, NPS has elected not to 
base its analysis on focused research

[[Page 53027]]

such as the Sierra Report for assessing PWC impacts.
    It is agreed that the relative quantity of HC + NOX are 
a very small proportion of the county-based emissions and that this 
proportion will continue to be reduced over time. The EA takes this 
into consideration in the analysis. For consistency and conformity in 
approach, the NPS has elected to rely on the assumptions in the 1996 
Spark Ignition Marine Engine Rule, which are consistent with the widely 
used NONROAD emissions estimation model. The outcome is that estimated 
emissions from combusted fuel may be more conservative, compared to 
actual emissions.
    38. One commenter believes that the Sierra Research emissions 
analysis should be used in the air quality analysis.
    NPS Response: The EPA data incorporated into the 1996 Spark 
Ignition Marine Engine rule were used as the basis for the assessment 
of air quality, and not the Sierra Research data. It is agreed that the 
Sierra Research data show a greater rate of emissions reductions than 
the assumptions in the 1996 Rule and in the EPA NONROAD Model, which 
NPS used to estimate emissions. However, the level of detail included 
in the Sierra Research report was not carried into the EA for reasons 
of consistency and conformance with the model predictions. Most states 
use the EPA NONROAD Model for estimating emissions from a broad array 
of mobile sources. To provide consistency with state programs and with 
the methods of analysis used for other similar NPS assessments, NPS has 
elected not to base its analysis on focused research such as the Sierra 
Report for assessing PWC impacts.
    It is agreed that the relative quantity of HC plus NOX 
are a very small proportion of the county-based emissions and that this 
proportion will continue to be reduced over time. The EA takes this 
into consideration in the analysis. For consistency and conformity in 
approach, NPS has elected to rely on the assumptions in the 1996 Spark 
Ignition Marine Engine Rule, which are consistent with the widely used 
NONROAD emissions estimation model. The outcome is that estimated 
emissions from combusted fuel may be more conservative compared to 
actual emissions.

Comments Regarding Soundscapes

    39. One commenter stated that in the 2005 EA, NPS concludes that 
PWC operation would produce negligible to minor short-term impacts upon 
the park's soundscape. NPS provides no new evidence for the EA's latest 
noise conclusions, which directly contradicts the 2001 determination.
    NPS Response: In the 2005 EA impacts to the soundscape in the 
preferred alternative were evaluated using operational restrictions 
such as requiring PWC to travel at a flat wake speed and limiting 
access to specific locations. With these restrictions impacts were 
determined to be adverse, short term, negligible to minor, depending 
upon location. The 2001 determination was made using unrestricted 
conditions that were in effect prior to the 2002 prohibition.
    40. One commenter stated that there is no evidence that PWC noise 
adversely affects aquatic fauna or animals. PWC typically exhaust above 
the water at the air/water transition area. Consequently, most PWC 
sound is transmitted through the air and not the water.
    NPS Response: PWC exhaust is below or at the air/water transition 
areas, not above the water. Sound transmitted through the water is not 
expected to have greater than negligible adverse impacts on fish, and 
the EA does not state that PWC noise adversely affects aquatic fauna.
    41. One commenter questioned the PWC noise levels that were used in 
the analysis.
    NPS Response: A correction has been included in the errata to the 
EA to indicate that one PWC would emit 68 to 76 A-weighted dB at 82 
feet. Based on the PWC noise levels from the Glen Canyon study, two PWC 
would emit 66 to 77 dB at 82 feet, 65 to 75 dB at 100 feet, and 59 to 
69 dB at 200 feet. The noise levels of two PWC traveling together would 
be less than the NPS noise limit of 82 dB at 82 feet for all 
alternatives. Ambient sound levels at Cape Lookout National Seashore 
vary due to the wide range of land cover types and visitor and other 
activities within and near the national seashore. In addition to 
intensity, other aspects of PWC noise were assessed, including changes 
in pitch. The operation of PWC 50 feet from shore traveling at a flat 
wake speed would have minor adverse affects on the soundscape. In most 
locations, except in high use areas, natural sounds would prevail and 
motorized noise would be very infrequent or absent.
    42. One commenter stated that the steps North Carolina has taken to 
limit boating noise will mitigate the potential impacts of PWC use on 
the park's soundscapes.
    NPS Response: Comment noted. Impacts to soundscapes under 
alternative B are negligible to minor, depending on location.
    43. Several comments stated that the EA's findings overstate the 
potential sound impacts of PWC use and do not include any documented 
complaint data about PWC noise.
    NPS Response: Comment noted. Impacts to soundscapes under 
alternative B are negligible to minor, depending on location. The EA 
states that the level of sound impact associated with PWC use varies 
based on location, time of day, and season. The EA also states that 
sound impacts associated with PWC use would be most prevalent in 
quieter areas. Analysis of potential impacts of PWC use relating to 
sound was based on best available data, input from park staff, and the 
results of analyses using that data.
    44. One commenter stated that the EA exaggerates PWC's propensity 
to become airborne.
    NPS Response: NPS agrees that many PWC do not leave the water when 
being operated. When required to operate at flat wake speed in Cape 
Lookout National Seashore it is highly unlikely that any PWC will leave 
the water. Impacts to soundscapes from PWC under alternative B range 
from negligible to minor, depending on the location within the park.
    45. One commenter stated that the PWC manufacturers have made 
significant progress in reducing PWC noise through technological 
innovations.
    NPS Response: NPS concurs that on-going and future improvements in 
engine technology and design would likely further reduce noise emitted 
from PWC. Even without the improvements the EA found impacts to 
soundscapes under alternative B are negligible to minor, depending on 
the location within the park.
    46. One commenter stated that state legislation entitled the 
``National Marine Manufacturers Association Model Noise Act'' 
establishes muffler requirements and maximum noise levels for PWC and 
other motorized boats, so noise disturbances would be minimized.
    NPS Response: NPS concurs that on-going and future improvements in 
engine technology and design would likely further reduce noise emitted 
from PWC. However, based on location and time, ambient noise levels at 
the national seashore can range from negligible to moderate and 
improved technology resulting in a reduction of noise emitted from PWC 
would not significantly change impact thresholds.

Comments Regarding Shoreline and Submerged Aquatic Vegetation

    47. A commenter stated that because PWC lack an exposed propeller, 
they

[[Page 53028]]

can't damage seagrasses in shallow waters. Furthermore, the natural 
forces at Cape Lookout have a greater impact on vegetation than PWC 
use.
    NPS Response: PWC do not have an exposed propeller but they do use 
an engine that directs a substantial amount of water towards the bottom 
at a high velocity. PWC can operate in waters less than a foot deep and 
have the potential of disturbing the sediment and submerged aquatic 
vegetation in shallow water areas. Disturbance of submerged aquatic 
vegetation beds diminishes their ecological value and productivity, 
affecting the entire ecosystem. As PWC are frequently operated in 
shallow areas in a repetitive manner, impacts on submerged aquatic 
vegetation beds can be severe. Natural forces may at times have a 
greater impact but the NPS allows such to occur without interference.
    48. A commenter stated that allowing PWC operators to access 
shallow areas near the Cape Lookout Environmental Education Center dock 
would greatly disturb the underwater substrate and shoreline.
    NPS Response: The 10 designated access areas, which include the 
area near the Cape Lookout Environmental Education Center dock, were 
chosen to avoid marshes and high-congestion beach areas. Indirect 
impacts from PWC use to shoreline vegetation would occur but would be 
limited to the designated access areas and would therefore be 
negligible to minor. Most of the access areas do not contain submerged 
aquatic vegetation beds, so PWC operation in these areas would have 
little potential to adversely impact this habitat. Additionally, the 
flat-wake speed restriction would minimize the potential for PWC to 
damage submerged aquatic vegetation beds through collision or uprooting 
and would reduce sediment resuspension and its detrimental effects.

Comments Regarding Wildlife and Wildlife Habitat

    49. One commenter stated that there are no documented cases of 
deliberate harassment or collisions with wildlife by PWC users and 
there is no evidence that PWC use disturbs wildlife along the 
shoreline.
    NPS Response: There is a potential for collision with or 
disturbance of aquatic wildlife species. The determination of potential 
for impacts to wildlife associated with PWC use is based on the 
assessment of several potential stressors including potential 
collision; noise; disruption of feeding, nesting, and resting 
activities; sediment suspension; emissions, etc. The flat wake 
requirement will reduce the level of PWC disturbance in the restricted 
areas and in nearby marshes. This reduced speed level and the 
requirement to travel perpendicular to the shoreline in designated 
access areas is expected to have short-term, negligible to minor, 
direct and indirect adverse impacts on aquatic wildlife species and 
habitat.
    50. One commenter stated that the EA cites only anecdotal accounts, 
in which park staff supposedly observed PWC flushing terns and other 
bird species, as support for its position that PWC use is more 
disruptive to wildlife than other vessels.
    NPS Response: The scope of the EA did not include the conduct of 
site-specific studies regarding potential effects of PWC use on 
wildlife species at Cape Lookout National Seashore. Analysis of 
potential impacts of PWC use on wildlife at the national seashore was 
based on best available data, input from park staff, and the results of 
analysis using that data. The EA does not state that shorebirds were 
observed being flushed from nests in the park.
    51. A commenter believes that PWC are no more disruptive than other 
forms of boating activity. Studies by Dr. James Rodgers of the Florida 
Fish and Wildlife Conservation Commission have shown that PWC are no 
more likely to disturb wildlife than any other form of human 
interaction.
    NPS Response: Some research indicates that PWC are no more apt to 
disturb wildlife than are small outboard motorboats; however, 
disturbance from both PWC and outboard motor boats does occur. Dr. 
Rodgers recommends that buffer zones be established for all watercraft, 
creating minimum distances between boats (personal watercraft and 
outboard motorboats) and nesting and foraging waterbirds. The shoreline 
restrictions limit access for PWC to 10 locations under alternative B 
and require them to operate at a flat wake speed as an added 
precaution. Impacts to wildlife and wildlife habitat under all the 
alternatives were judged to be negligible to minor from all visitor 
activities.
    52. One commenter believes the Everglades Report has been wrongly 
used in the wildlife analysis.
    NPS Response: The reference to the Everglades Report at page iii of 
the EA provides background regarding past actions taken by NPS with 
respect to PWC use. The EA states that ``After studies in Everglades 
National Park showed that PWC use resulted in damage to vegetation, 
adversely impacted shorebirds, and disturbed the life cycles of other 
wildlife, NPS prohibited PWC use by a special regulation at the park in 
1994.'' This EA did not rely on the Everglades Report as a basis for 
assessing potential impacts to park resources associated with PWC use.
    53. One commenter stated that the EA puts forth a conflicting 
position on the adequacy of new regulations to protect the park 
environment and wildlife, as well as the resources available to 
adequately enforce the NPS' new rules.
    NPS Response: The NPS agrees that a total prohibition would be 
easier to enforce. However, enforcement would also be required under 
the no-action alternative. The seashore is fully aware that this new 
regulation will require short-term changes and reallocations of assets 
and resources, with an increase in education and enforcement. However, 
this effort will generally need to be focused at popular boating use 
areas that are already the focus of enforcement activity. Enforcement 
of the April 22, 2002, prohibition of PWC required an increased focus 
on education and PWC enforcement during routine patrols at a limited 
number of popular use areas. This education and enforcement effort 
became successful in about two boating seasons.
    The majority of seashore users are law abiding and sensitive to the 
special values of seashore waters and lands. An active education 
program backed by a reasonable enforcement effort should, in a few 
seasons, educate the PWC user to the requirements of the new 
regulation. After an initial period of adjustment to the new 
regulations, the small number of PWC users who encounter seashore 
waters should be knowledgeable enough to abide by the law, and the 
initial need for focused attention on PWC operators will diminish. 
Additional water presence by park rangers and education are proven 
methods of protecting resources for the future enjoyment of all 
visitors, with the end result of enhancing the visitor experience.
    54. One commenter stated that the EA reaches a different conclusion 
regarding the appropriateness of PWC, compared to the 2001 
determination.
    NPS Response: Due to an increased level of public comment, Cape 
Lookout reanalyzed the issues and impact topics described in the 2001 
Determination in more detail in the EA. The 2001 Determination can be 
viewed at: http://www.nps.gov/calo/parkplan.htm. The results of the in-
depth analysis in the EA indicated that alternative B, which provided 
for limited access at flat wake speeds, would create acceptable impacts 
that ranged from negligible to moderate for all impact topics. 
Alternative B was chosen as the preferred alternative.

[[Page 53029]]

    55. One commenter stated that the preferred alternative violates 
the Marine Mammal Protection Act (MMPA), which requires Federal 
agencies to prevent the ``take'' of marine mammals. Slow moving boats, 
even ones operating at flat wake speed, can violate the MMPA 
prohibition on harassment.
    NPS Response: The EA states that implementing the preferred 
alternative would be expected to have short-term, negligible to minor, 
direct and indirect impacts to aquatic wildlife and habitats. The EA 
states that flat wake zoning prescriptions and the implementation of 
ten designated access areas would minimize potential for adverse 
impacts.
    56. One commenter stated that the EA fails to adequately 
investigate the impact of the current PWC ban on biological migration 
patterns.
    NPS Response: The scope of the EA did not include the conduct of 
surveys to determine potential effects of the current PWC ban on 
biological use patterns in Cape Lookout National Seashore. Analysis of 
potential impacts of PWC use on wildlife at the national seashore was 
based on best available data, input from park staff, and the results of 
analysis using that data.

Comments Regarding Visitor Use and Experience

    57. One commenter stated that the EA overlooks the impact of 
reauthorizing PWC operation and its impact upon visitor use patterns. 
NPS should have conducted a visitor use survey over the past two years 
to measure public support for the current PWC closures.
    NPS Response: The comment is correct in stating that no new visitor 
use surveys have been conducted since 1993. However, NPS received over 
6,000 letters and emails on the issue since the initial PWC closure in 
March 2001. To suggest the seashore is not current on the opinions of 
the public on PWC is not an accurate statement concerning the NEPA and 
rulemaking process.
    58. One commenter stated that the national accident figures cited 
in the document are dated and potentially misleading.
    NPS Response: The factors described in the comment are recognized. 
However, these factors are unlikely to fully explain the large 
difference in percentages (personal watercraft are only 7.5% of 
registered vessels, yet they are involved in 36% of reported 
accidents). In other words, PWC are 5 times more likely to have a 
reportable accident than are other boats. Despite these national 
boating accident statistics, impacts of PWC use and visitor conflicts 
are judged to be negligible relative to swimmers and minor relative to 
other motorboats at the national seashore.
    59. One commenter stated that the EA cites North Carolina state and 
county accident data instead of park-specific data. Furthermore, PWC 
users comprise only 1% of the total number of visitors to Cape Lookout 
National Seashore; therefore the number of PWC in the park will be 
relatively small and will not create unique or disproportionate safety 
risks.
    NPS Response: Although only one PWC-related injury has been 
reported at Cape Lookout, much of the waters in the area are outside of 
park boundaries and many incidents are likely not reported to any 
agency. PWC speeds, wakes, and operations near other users can pose 
hazards and conflicts, especially to canoeists and sea kayakers. As 
stated in the EA, PWC have historically operated for longer periods of 
time in the heavily used areas of the park, including the soundside of 
Shackleford Banks and the cove at the Cape Lookout lighthouse, 
increasing the opportunities for conflicts or accidents. Limiting PWC 
use in these areas, coupled with flat wake speed requirements, would 
reduce conflicts between PWC and other users.
    60. One commenter stated that by restricting PWC use to ten 
designated areas, alternative B concentrates PWC use in several popular 
areas of the park, which increases the likelihood of potential conflict 
with other visitors. Alternative B's restrictions do not apply to other 
motorized vessels. The PWC-only flat wake zone will create serious 
safety hazards for PWC users, and should be extended to all motorized 
craft within park waters.
    NPS Response: The 10 designated access areas were chosen to avoid 
marshes and high-congestion beach areas. Implementation of a flat wake 
zone will reduce potential impacts associated with high speed use in 
near shore areas, as compared to use without the speed restriction. 
When vessels, other than PWC, enter park waters, which extend into the 
sound 150 feet, they normally operate at reduced speeds as they prepare 
to anchor or dock, so they are traveling at speeds similar to those 
required for PWCs. Vessels maneuvering in congested waters are 
generally safer at slower speeds.
    61. Commenters are concerned with the assumption that PWC will not 
adversely impact public safety and that a majority of PWC users operate 
their craft in a lawful manner. However, in 2001 the NPS reported that 
PWC use ``pose[d] unacceptable risks'' to the safety of other visitors.
    NPS Response: Due to an increased level of public comment, Cape 
Lookout reanalyzed the issues and impact topics described in the 2001 
Determination in more detail in the EA. The 2001 Determination can be 
viewed at: http://www.nps.gov/calo/parkplan.htm. The results of the in-
depth analysis in the EA indicated that alternative B, which provided 
for limited access at flat wake speeds would create acceptable impacts 
that ranged from negligible to moderate for all impact topics. 
Alternative B was chosen as the preferred alternative. Alternative B 
also provides more enforcement and education for PWC users.
    62. A commenter stated that documented visitor satisfaction when 
PWC use was permitted was rated very good to excellent. Furthermore, 
today's PWC owner typically uses the craft for family-oriented outings.
    NPS Response: NPS agrees that some PWC operators are better 
educated and are not reckless with their machines, and that many trips 
are family-oriented. However, PWC use does vary, and many operators 
still use the machines for ``thrill,'' including stunts, wake jumping, 
and other more risky exercises. Some users can still create 
disturbances or safety concerns, especially if children are operating 
the vessel. Under alternative B, NPS is providing access to the park so 
that PWC users can enjoy Cape Lookout National Seashore beaches and 
other natural or cultural resources, but is restricting the use of PWCs 
in park waters to prohibit the wave jumping and other similar behavior.
    63. Several commenters stated that alternative B is inconsistent 
with NPS' goal of avoiding the creation of additional enforcement 
requirements, and that there are not enough enforcement officials to 
keep PWC violations in check.
    NPS Response: Both the no-action alternative and alternative B 
requires enforcement action. Cape Lookout National Seashore is fully 
aware that this new regulation will require short-term changes and 
reallocations of assets and resources, with an increase in education 
and enforcement. However, this effort will need to focus on popular 
boating use areas that are already the focus of enforcement activity. 
Enforcement of the April 22, 2002, ban of PWC at Cape Lookout National 
Seashore required increased focus on education and PWC enforcement 
during routine patrols at a limited number of popular use areas. This 
education and enforcement effort was successful in two boating seasons.
    The majority of national seashore users are law abiding and 
sensitive to the special values of seashore waters

[[Page 53030]]

and lands. An active education program backed by a reasonable 
enforcement effort should, in a few seasons, educate the PWC user to 
the requirements of the new regulation. After an initial period of 
adjustment to the new regulations, the small number of PWC users who 
encounter national seashore waters should be knowledgeable enough to 
abide by the law, and the initial need for focused attention on PWC 
operators will diminish. Additional water presence and education are 
proven methods of protecting resources for the future enjoyment of all 
visitors, with the end result of enhancing the visitor experience.

Comments Regarding Visitor Conflict and Safety

    64. One commenter stated that the EA reaches many conclusions 
regarding the impact of PWC upon Cape Lookout resources and wildlife 
that are directly contradicted by the 2001 determination and previous 
NPS testimony.
    NPS Response: Due to the increased level of public comment and 
congressional interest, Cape Lookout National Seashore reanalyzed the 
issues and impact topics described in the 2001 Determination in more 
detail in the EA. The 2001 Determination can be viewed at: http://www.nps.gov/calo/parkplan.htm. In the 2001 determination PWC use was 
evaluated without any operational or access restrictions and therefore 
the reports differ in results. The results of the in-depth analysis in 
the EA indicated that impacts under alternative B range from negligible 
to moderate for all impact topics, and the NPS chose alternative B as 
the preferred alternative. Under alternative B, PWC would only be 
allowed in ten areas of the park in order to facilitate PWC access to 
certain sections of Shackleford Banks, South Core Banks, and North Core 
Banks. PWC must remain perpendicular to the shore and operate at flat 
wake speed, which would limit safety and noise issues from PWC.
    65. Commenters have concerns about PWC operators following too 
closely and riding too close to the shoreline, both of which put people 
at risk for serious injury.
    NPS Response: In the preferred alternative, PWC will only be 
allowed in the ten areas within the park specifically for landing 
purposes. PWC must remain perpendicular to shore and operate at flat 
wake speed. These restrictions would reduce the potential for conflicts 
with other vessels.
    66. One commenter believes that the proposed rule caters to a 
minority of PWC users at the expense of the majority of the park 
visitors who favor a PWC ban.
    NPS Response: The proposed rule would support visitor enjoyment by 
allowing limited access by PWC users while accommodating other visitors 
and meeting resource management objectives.

Comments Regarding Cultural Resources

    67. One commenter stated that the EA overstates PWC's potential 
impact on cultural resources.
    NPS Response: The EA was focused on the analysis of impacts from 
PWC use. PWC can make it easier to reach some remote areas, compared to 
hiking to these areas, but the NPS agrees that the type of impacts to 
cultural resources from any users of remote areas of the park would be 
similar if they can reach these areas.

Comments Regarding Socioeconomics

    68. One commenter stated that the EA does not investigate the 
economic impact that lifting the PWC ban would have upon businesses 
that are dependent upon the conservation of wildlife and their habitat.
    NPS Response: Page 170 of the EA states that the primary group that 
would incur costs under the preferred alternative is park visitors who 
do not use PWC and whose experiences would be negatively affected by 
PWC within the park. However, because PWC users account for a very 
small fraction of economic activity in the region, it is very unlikely 
that there will be any measurable incremental impacts on the region's 
economy. Continued PWC use within the park under the preferred 
alternative would have short-term, minor adverse impacts on wildlife 
species and their habitats, and is unlikely to impact the conservation 
of wildlife in and near the park.
    69. One commenter stated that the proposed rule fails to mention 
the economic impacts on the PWC-related businesses in the area. The 
comment also mentions a recently published economic study that 
discusses the economic impact of banning PWC in Cape Lookout National 
Seashore.
    NPS Response: NPS reviewed the Trade Partnership study, which 
concludes that PWC sales grew steadily through 1995, and have declined 
dramatically since then. The study blames this decline in sales on the 
PWC bans at National Parks. While the PWC ban at some National Park 
units may have contributed slightly to decline in PWC sales, NPS 
disagrees with the study's conclusion that the ban is the primary 
reason for the decline in sales. PWC use occurred in only 32 of the 87 
park units that allow motorized boating. These 32 park units comprise a 
very small percentage of the total amount of waterways in the United 
States that can accommodate PWC. A decline in PWC sales can be 
attributed to many other reasons, including economic reasons, 
perceptions about the machines, and limitations by other public 
entities. In fact, at least 34 states have either implemented use 
restrictions or considered regulating PWC use and operation.
    The economic analysis report quoted in the comment (Economic 
Analysis of Management Alternatives for Personal Watercraft in Cape 
Lookout National Seashore, MACTEC Engineering 2005) concludes that the 
proposed rule is not expected to reduce any of the local area's PWC-
related businesses' profit margins or reduce the competitiveness of PWC 
rental and retail businesses. The report also concludes that small 
increases in revenue are projected under the proposed rule, relative to 
the no-action alternative, for firms selling and renting PWCs to Cape 
Lookout visitors.

Changes to the Final Rule

    Several non-substantive changes have been made to the rule language 
in response to comments on the NPRM. First, the rule was rewritten to 
clarify the type of PWC use prohibited and locations within the 
national seashore where it is permitted. In addition, the phrase 
``recreational use'' has been deleted. Also, the text in the rule has 
been clarified to state that the restrictions will be imposed on the 
PWC operator, not the PWC equipment. Organization of the rule has also 
been improved. See the discussion above under Comment Numbers 14 and 
21.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and has not been reviewed 
by the Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The NPS has completed the report ``Economic Analysis of 
Management Alternatives for Personal Watercraft in Cape Lookout 
National Seashore'' (MACTEC Engineering, December 2005). This document 
may be viewed on the

[[Page 53031]]

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

Regulatory Flexibility Act

    The Department of the Interior certifies that this rulemaking will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This certification is based on a report entitled ``Economic Analysis of 
Management Alternatives for Personal Watercraft in Cape Lookout 
National Seashore'' (MACTEC Engineering, December 2005). This document 
may be viewed on the park's Web site at: http://www.nps.gov/calo/parkplan.htm.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

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

Unfunded Mandates Reform Act

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB Form 83-I is not required.

National Environmental Policy Act

    The NPS analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act and prepared an EA. The EA was 
available for public review and comment from January 24, 2005, to 
February 24, 2005. A Finding of No Significant Impact (FONSI) was 
signed on July 7, 2006. These documents are available at http://www.nps.gov/calo/parkplan.htm or may be requested by telephoning (252) 
728-2250. Mail inquiries should be directed to park headquarters: Cape 
Lookout National Seashore, 131 Charles Street, Harkers Island, NC 
28531.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential 
effects on federally recognized Indian tribes and have determined that 
there are no potential effects.

Administrative Procedure Act

    This rule allows use of PWC in Cape Lookout National Seashore under 
specified conditions. Because current regulations do not allow use of 
PWC at all, this rule relieves a restriction on the public. For this 
reason, and because NPS wishes to allow the public to take advantage of 
the new rules as soon as possible, this final rule is effective upon 
publication in the Federal Register, as allowed by the Administrative 
Procedure Act at 5 U.S.C. 553(d)(1).
    The proposed rule was published in the Federal Register (70 FR 
77089) on December 29, 2005, with a 60-day period for notice and 
comment consistent with the requirements of 5 U.S.C. 553(b).

List of Subjects in 36 CFR Part 7

    National Parks, Reporting and recordkeeping requirements.


0
In consideration of the foregoing, the NPS amends 36 CFR part 7 as 
follows:

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

0
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).


0
2. Add new Sec.  7.49 to read as follows:


Sec.  7.49  Cape Lookout National Seashore.

    (a) Personal watercraft (PWC) may be operated within Cape Lookout 
National Seashore only under the following conditions:
    (1) PWC must be operated at flat-wake speed;
    (2) PWC must travel perpendicular to shore;
    (3) PWC may only be operated within the seashore to access the 
following sound side special use areas:
    (i) North Core Banks:

[[Page 53032]]



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

    (ii) South Core Banks:

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

    (iii) Cape Lookout:

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

    (iv) Shackleford Banks:

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

    (b) The Superintendent may temporarily limit, restrict or terminate 
access to the areas designated for PWC use after taking into 
consideration public health and safety, natural and cultural resource 
protection, and other management activities and objectives.

    Dated: August 25, 2006.
David M. Verhey,
Acting Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 06-7502 Filed 9-7-06; 8:45 am]
BILLING CODE 4310-XR-P