[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Proposed Rules]
[Pages 3903-3906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00312]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

[NPS-GUIS-28979; PPMPSAS1Z.YP0000]
RIN 1024-AE55


Gulf Islands National Seashore; Personal Watercraft

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service proposes to revise special 
regulations governing the use of personal watercraft at Gulf Islands 
National Seashore. The proposed rule would reduce the distance of flat 
wake speed zones from certain shorelines and codify existing closures 
at West Petit Bois Island and the Fort Pickens ferry pier.

DATES: Comments on the proposed rule must be received by 11:59 p.m. EST 
on March 16, 2021.

ADDRESSES: You may submit comments, identified by Regulation Identifier 
Number (RIN) 1024-AE55, by either of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: 
www.regulations.gov. Follow the instructions for submitting comments.
    (2) By hard copy: Mail or hand deliver to: Superintendent, 1801 
Gulf Breeze Parkway, Gulf Breeze, FL 32563.
    Instructions: Comments will not be accepted by fax, email, or in 
any way other than those specified above. All submissions received must 
include the words ``National Park Service'' or ``NPS'' and must include 
the RIN 1024-AE55 for this rulemaking. Comments received may be posted 
without change to www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov and search for ``1024-
AE55''.

FOR FURTHER INFORMATION CONTACT: Daniel R. Brown, Superintendent, Gulf 
Islands National Seashore, [email protected], (850) 934-2613.

SUPPLEMENTARY INFORMATION: 

Background

    Gulf Islands National Seashore (the Seashore) encompasses the 
longest stretch of federally protected seashore in the United States. 
The Seashore includes seven barrier islands that span nearly 160 miles, 
coastal mainland, and adjacent waters in the northeastern part of the 
Gulf of Mexico. The Seashore comprises 139,175 acres within Mississippi 
and Florida, 4,630 acres of which (consisting of Horn and Petit Bois 
Islands) are designated wilderness. The resources of the Seashore vary 
widely, including marine, bayou, salt marsh, live oak, and southern 
magnolia forests.
    Congress established the Seashore in 1971 in order to preserve for 
public use and enjoyment areas possessing outstanding natural, 
historic, and recreational values. 16 U.S.C. 459h(a). The National Park 
Service (NPS) administers the Seashore as a unit of the National Park 
System and has the authority to regulate the use of and management of 
the Seashore as it considers necessary or proper. 54 U.S.C. 100751(a). 
This includes the authority to regulate boating and other activities on 
water located within NPS units that is subject to the jurisdiction of 
the United States. 54 U.S.C. 100751(b).
    The Seashore is one of the most heavily visited units in the 
National Park System. The Seashore attracts several million visitors 
from throughout the nation, who come to enjoy the beach and cultural 
and historic features. More than 80% of the Seashore is marine habitat 
and accessible only by boat or other watercraft. Many visitors use 
personal watercraft (PWC) to access and enjoy the Seashore.

Compliance and PWC Regulations

    NPS general regulation 36 CFR 3.9 states that PWC may be used only 
where authorized by special regulation and that special regulations 
authorizing PWC use may be promulgated only for the 21 NPS units that 
are identified in that regulation, including the Seashore. In 2006, the 
NPS promulgated special regulations to manage the use of PWC at the 
Seashore. 71 FR 26244 (May 4, 2006). These regulations, which are found 
at 36 CFR 7.12, establish where PWC may be used, how they may be 
operated, and where they may be landed. Among other things, they permit 
PWC use in all waters of the Seashore where other motorized vessels are 
allowed.
    In 2008, Bluewater Network and other environmental groups filed a 
lawsuit claiming that the Environmental Assessment (EA) supporting the 
special regulations was inadequate and violated the National 
Environmental Policy Act, the NPS Organic Act, and the Administrative 
Procedure Act. In 2010, the U.S. District Court for the District of 
Columbia held that the impact analysis in the EA was inadequate and 
remanded the EA to the NPS. Bluewater Network v. Salazar, 721 F. 
Supp.2d 7 (D.D.C. 2010). However, the court did not vacate the special 
regulations, which have continued to govern the use of PWC within the 
Seashore.
    In June 2019, consistent with the court's decision, the NPS 
completed a Final Personal Watercraft Plan/Environmental Impact 
Statement (FEIS) that contains a more comprehensive analysis of the 
impacts of PWC use within the Seashore. The Record of Decision (ROD) 
for this project was originally approved by the NPS Regional Director 
of Interior Region 2 on August 13, 2019. Since that time, NPS revised 
the selected alternative to remove a prohibition on PWC landing below 
the mean high tide on Horn and Petit Bois Islands. On December 17, 
2020, the Acting Regional Director signed an amended ROD with the PWC 
landing prohibition removed but all other elements of the original 
selected action retained. The NPS believes the selected alternative 
will continue to protect natural and cultural resources at the 
Seashore, minimize conflicts between various users, and promote visitor 
safety while allowing for a variety of recreational experiences. A copy 
of the FEIS, ROD, and amended ROD which contain a full description of 
the purpose and need for taking action, the alternatives considered, 
maps, the environmental impacts associated with the proposed rule, and 
the basis for the selected alternative, can be found online at http://parkplanning.nps.gov/guis, by clicking on the link entitled ``Personal 
Watercraft (PWC) Use Management Plan/EIS'' and then clicking on the 
link entitled ``Document List''.

Proposed Rule

    The proposed rule would implement the selected alternative 
identified in the amended ROD for the management of PWC use within the 
Seashore. The selected alternative would maintain the existing special 
regulation at 36 CFR 7.21, except as explained below.

[[Page 3904]]

Flat Wake Zones

    The existing special regulations prohibit the use of PWC at more 
than flat wake speed less than 0.5 miles from (i) either side of the 
pier of West Ship Island, and (ii) the shorelines of West Ship Island 
and the designated wilderness islands of Horn and Petit Bois. The 
existing flat wake speed zone extends 300 yards from all other 
shorelines within the Seashore. The proposed rule would reduce the size 
of the flat wake zone to (i) 300 yards from any shoreline in 
Mississippi (including the shorelines of Ship, Horn and Petit Bois 
islands) and (ii) 150 yards from any shoreline in Florida. Establishing 
consistent flat-wake zone distances within each district of the 
Seashore (Florida and Mississippi) should result in easier enforcement 
of and increased compliance with flat-wake zones. The 150-yard flat-
wake zone in the Florida District would minimize impacts to commercial 
PWC rental businesses and visitor experience for PWC users. The 
proposed boundaries of the flat wake zones are based on near-shore 
bathymetric information and research on PWC impacts to submerged 
aquatic vegetation and shorebird nesting that shows that in a water 
depth of 3 feet or more, PWC have little negative impact to seagrass 
beds (Continental Shelf Associates 1997; MDNR 2002). The average 
distance from shorelines in the Florida district to the 3-foot depth 
contour is 150 yards. Because similar 3-foot bathymetric data were not 
available for Mississippi, the proposed 300 yard flat wake zone in this 
district is based on the average distance to the 4-foot depth contour. 
NPS law enforcement staff may place temporary floating buoys in the 
water as reference points to show PWC users what 150 yards and 300 
yards from the shoreline looks like. This would be done on an as-needed 
basis, determined by NPS personnel, and would likely occur on select 
high-use days and weekends.

Other Modifications

    The existing special regulations allow PWC use anywhere within the 
Seashore except at specific locations listed in the regulations. 36 CFR 
7.12(c)(1). The proposed rule would add two locations to the list of 
closed areas: (i) The lakes, ponds, lagoons, and inlets of West Petit 
Bois Island; and (ii) within 200 feet of the ferry pier at Fort 
Pickens. West Petit Bois Island is a fast changing barrier island. 
According to historic aerial imagery at the time the existing special 
regulations were promulgated in 2006, West Petit Bois Island did not 
have lakes, ponds, or inlets as it does now. The Fort Pickens ferry 
pier did not exist in 2006. Construction was completed in 2012. These 
closures have been implemented by the NPS for years under the 
Superintendent's authorities in 36 CFR 1.5. They are consistent with 
existing closures for the lakes, ponds, lagoons, and inlets of other 
islands within the Seashore and for areas within 200 feet of the 
fishing piers at Fort Pickens.
    The proposed rule would also replace references to West Ship Island 
and East Ship Island in the current regulations with a reference to 
Ship Island. In 2019, West Ship Island and East Ship Island were 
restored to a single island as part of the Mississippi Coastal 
Improvements Program Comprehensive Barrier Island Restoration Project.

Compliance With Other Laws, Executive Orders and Department Policy 
Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The OIRA has waived review of this 
proposed rule and, at the final rule stage, will make a separate 
decision as to whether the rule is a significant regulatory action as 
defined by Executive Order 12866.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Reducing Regulation and Controlling Regulatory Costs (Executive Order 
13771)

    Enabling regulations are considered deregulatory under guidance 
implementing E.O. 13771 (M-17-21). This rule would authorize the use of 
personal watercraft within Gulf Islands National Seashore in a manner 
that would otherwise be prohibited.

Regulatory Flexibility Act

    This rule 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 information 
contained in the economic analyses found in the report entitled 
``Economic Analysis of the Personal Watercraft Proposed Rule at Gulf 
Islands National Seashore.'' The document can be found online at http://parkplanning.nps.gov/guis-PWC-EIS, by clicking on the link entitled 
``Document List.''

Congressional Review Act (CRA)

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

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. It addresses public 
use of national park lands, and imposes no requirements on other 
agencies or governments. A statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise 
have takings implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. This proposed 
rule only affects use of federally-administered lands and waters. It 
has no outside effects on other areas. A Federalism summary impact 
statement is not required.

[[Page 3905]]

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
This rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the criteria in Executive Order 13175 and under the 
Department's tribal consultation policy and have determined that tribal 
consultation is not required because the rule will have no substantial 
direct effect on federally recognized Indian tribes. Nevertheless, in 
support of the Department of Interior and NPS commitment for 
government-to-government consultation, the NPS submitted a letter to 14 
Indian tribes during the development of the FEIS. The Choctaw Nation of 
Oklahoma responded that the locations considered in the FEIS are within 
the Nation's area of historic interest, and because of the potential 
adverse impact to the coastal sites, requested to be a consulting 
party. NPS staff held a conference call with representatives of the 
Muscogee Creek Nation, Jena Band of Choctaw Indians, and Choctaw Nation 
of Oklahoma to discuss their concerns. The tribal representatives 
expressed concern over looting and vandalism, but were not very 
concerned about wakes from PWC damaging resources. The NPS explained 
how law enforcement actions and the Superintendent's closure authority 
could help address their concerns.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget under the Paperwork 
Reduction Act is not required. We may not conduct or sponsor and you 
are not required to respond to a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    This rule implements, in part, a comprehensive management action 
for PWC at the Seashore that constitutes a major Federal action 
significantly affecting the quality of the human environment. The NPS 
has prepared the FEIS, ROD and amended ROD under the National 
Environmental Policy Act of 1969. A copy of the FEIS, ROD and amended 
ROD, which contain a full description of the purpose and need for 
taking action, the alternatives considered, maps, the environmental 
impacts associated with the proposed rule, and the basis for the 
selected alternative can be found online at http://parkplanning.nps.gov/guis, by clicking on the link entitled ``Personal 
Watercraft (PWC) Use Management Plan/EIS'' and then clicking on the 
link entitled ``Document List''.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211; the rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy, and the 
rule has not otherwise been designated by the Administrator of OIRA as 
a significant energy action. A Statement of Energy Effects is not 
required.

Clarity of This Rule

    We are required by Executive Orders 12866 (section 1(b)(12)) and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

Drafting Information

    The primary authors of this regulation are Julia Larkin and Jay 
Calhoun, Division of Regulations, Jurisdiction, and Special Park Uses, 
National Park Service.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule by one of the methods listed in 
the ADDRESSES section of this document.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 36 CFR Part 7

    National parks, Reporting and recordkeeping requirements.
    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR part 7 as set forth below:

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

0
1. The authority citation for part 7 continues to read as follows:

    Authority:  54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also 
issued under D.C. Code 10-137 and D.C. Code 50-2201.07.
0
2. Amend Sec.  7.12 by revising paragraphs (c)(1)(i) and (iii), (c)(2), 
(c)(3) introductory text and (c)(3)(i) to read as follows:


Sec.  7.12  Gulf Islands National Seashore.

* * * * *
    (c) * * *
    (1) * * *
    (i) The lakes, ponds, lagoons, and inlets of Cat Island, Ship 
Island, Horn Island, West Petit Bois Island, and Petit Bois Island;
* * * * *
    (iii) The areas within 200 feet from the remnants of the old 
fishing pier and within 200 feet from the new fishing pier and the 
ferry pier at Fort Pickens; and
* * * * *
    (2) PWC may not be operated at greater than flat wake speed in the 
following locations:
    (i) Within 300 yards from all shorelines in Mississippi; and

[[Page 3906]]

    (ii) Within 150 yards from all shorelines in Florida.
    (3) PWC are allowed to land at any point along the shore except as 
follows:
    (i) PWC are prohibited on any shoreline adjacent to the closed 
areas listed in paragraph (c)(1) of this section; and
* * * * *

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-00312 Filed 1-14-21; 8:45 am]
BILLING CODE 4310-EJ-P