[Federal Register Volume 71, Number 37 (Friday, February 24, 2006)]
[Proposed Rules]
[Pages 9488-9495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2647]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AD42
Gateway National Recreation Area, Sandy Hook Unit, Personal
Watercraft Use
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service (NPS) is proposing to designate an
area for the limited purpose of providing passage access for personal
watercraft (PWC) through park waters in the Sandy Hook Unit of Gateway
National Recreation Area (GATE), New York/New Jersey. This proposed
rule implements the provisions of the NPS general regulations
authorizing park areas to allow the use of PWC by promulgating a
special regulation. The individual parks must determine whether PWC use
is appropriate for a specific park area based on an evaluation of that
area's enabling legislation, resources and values, other visitor uses,
and overall management objectives. The proposed rule designating areas
where PWC may be used in the Jamaica Bay unit of GATE, New York/New
Jersey is published in today's Federal Register.
DATES: Comments must be received by April 25, 2006.
ADDRESSES: You may submit comments, identified by the number RIN 1024-
AD42, by any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov. Follow the
instructions for submitting electronic comments.
--E-mail NPS at GATE_PWCComments @louisberger.com. Use RIN 1024-AD42
in the subject line.
--Mail or hand deliver to: General Superintendent, Gateway National
Recreation Area, 210 New York Avenue, Staten Island, NY 10306.
For additional information see ``Public Participation'' under
SUPPLEMENTARY INFORMATION below.
FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program
Manager,
[[Page 9489]]
National Park Service, 1849 C Street, NW., Room 7241, Washington, DC
20240. Phone: (202) 208-4206. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Additional Alternatives
The information contained in this proposed rule supports
implementation of the preferred alternative for the Sandy Hook Unit of
GATE in the Environmental Assessment (EA) published April 3, 2003. The
public should be aware that three other alternatives were presented in
the EA, including a no-PWC alternative for each unit, and those
alternatives should also be reviewed and considered when making
comments on this proposed rule. The EA may be viewed at http://nps.gov/gate/pwc/ea.pdf.
Personal Watercraft Regulation
On March 21, 2000, the National Park Service (NPS) published a
regulation (36 CFR 3.24) on the management of PWC use within all units
of the national park system (65 FR 15077). This regulation prohibits
PWC use in all national park units unless the NPS determines that this
type of water-based recreational activity is appropriate for the
specific park unit based on the legislation establishing that park, the
park's resources and values, other visitor uses of the area, and
overall management objectives. The regulation prohibited PWC use in all
park units effective April 20, 2000, except for 21 parks, lakeshores,
seashores, and recreation areas, until the park unit adopted a special
regulation to manage PWC use. The regulation established a 2-year grace
period following the final rule publication to provide these 21 park
units time to consider whether PWC use should continue.
Description of Gateway National Recreation Area and the Sandy Hook Unit
Gateway National Recreation Area is located in the heart of the New
York City metropolitan area. The park, which extends through three New
York City boroughs and into New Jersey, consists of more than 26,000
acres and has been assembled from city parks, military sites, and
undeveloped land. Congress established GATE in 1972 as one of the first
urban parks in the national park system. Gateway National Recreation
Area is composed of three distinct units--Jamaica Bay, Staten Island,
and Sandy Hook. These units comprise a seashore ecosystem of wildlife,
private communities, and outdoor recreational activities in an urban
environment. This proposed rule addresses PWC use in the Sandy Hook
Unit. The proposed rule designating areas where PWC may be used in the
Jamaica Bay unit of GATE, New York/New Jersey is published elsewhere in
today's Federal Register.
The Sandy Hook Unit is located on a largely undisturbed peninsula
at the northern end of the New Jersey coast; this unit encompasses
approximately 1,665 land acres, including 7.5 miles of ocean beaches
and sheltered bayside coves and hundreds of acres of ecologically
significant barrier beach vegetation. The area features ocean beaches,
Sandy Hook Bay, salt marshes, historic Fort Hancock, and Sandy Hook
lighthouse. At the north end of the unit is the Fort Hancock complex.
Hiking trails lead to dunes, ponds, a maritime holly forest, and some
of the richest bird habitat in New Jersey.
Gateway National Recreation Area is unique from other national park
units in that it has few natural buffer zones and exists where impacts
from human use are constantly changing the environment. The lands and
waters of GATE represent the last remnants of the original shoreline
and provide a coastal recreation resource that may in the near future
serve more visitors than any other national park in the system.
Visitation has been estimated to be about 8 million annually. In 2001,
the Jamaica Bay and Staten Island Units in New York received more than
6 million visitors and the Sandy Hook Unit in New Jersey received over
1 million visitors. Because of its urban setting, proximity to two
major airports, and intense visitor use, GATE is less likely than some
park units to ever offer substantial opportunities for solitude or
quiet contemplative experiences.
Gateway National Recreation Area has demonstrated the potential for
ecological reclamation in an urban setting. Scientists have noted that
the ecological restoration of Jamaica Bay and other GATE areas is proof
that we can work within natural systems to reclaim what has been
severely impacted.
Purpose of Gateway National Recreation Area
Congress established GATE in October 27, 1972, as part of an effort
to bring the national park system and its ethic of preserving and
protecting outstanding resources closer to major urban areas: ``In
order to preserve and protect for the use and enjoyment of present and
future generations an area possessing outstanding natural and
recreational features, the Gateway National Recreational Area * * * is
hereby established.'' (16 U.S.C. 460(c)).
Significance of Gateway National Recreation Area
Gateway National Recreation Area's primary significance is provided
in its Strategic Plan as follows:
Gateway National Recreation Area encompasses the largest collection
of natural ecosystems, wildlife habitats, historic resources, and
recreational opportunities in the New Jersey/New York metropolitan
areas.
Gateway National Recreation Area endeavors to incorporate the NPS
conservation ethic into those values consistent with its highly
urbanized setting and visitor use patterns.
Natural and cultural resources and associated values are protected,
restored, and maintained in good condition and managed within their
broader ecosystem and cultural context to the maximum extent possible.
Visitors safely enjoy and are satisfied with the availability,
accessibility, diversity, and quality of park recreational
opportunities.
Authority and Jurisdiction
Under the National Park Service's Organic Act of 1916 (Organic Act)
(16 U.S.C. 1, et seq.) Congress granted the NPS broad authority to
regulate the use of the Federal areas known as national parks. In
addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the
Secretary of the Interior, to ``make and publish such rules and
regulations as he may deem necessary or proper for the use and
management of the parks * * *''
16 U.S.C. 1a-1 states, ``The authorization of activities shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been established
* * *''
The NPS's regulatory authority over waters subject to the
jurisdiction of the United States, including navigable waters and areas
within their ordinary reach, is based upon the Property and, as with
the United States Coast Guard, Commerce Clauses of the U.S.
Constitution. In regard to the NPS, Congress in 1976 directed the NPS
to ``promulgate and enforce regulations concerning boating and other
activities on or relating to waters within areas of the National Park
System, including waters subject to the jurisdiction of the United
States * * *'' (16 U.S.C. 1a-2(h)). In 1996 the NPS published a final
rule (61 FR 35136, July 5, 1996) amending 36 CFR 1.2(a)(3) to clarify
its
[[Page 9490]]
authority to regulate activities within the National Park System
boundaries occurring on waters subject to the jurisdiction of the
United States.
PWC Use at Gateway National Recreation Area and the Sandy Hook Unit
Water-based recreational activity at GATE, including wading,
swimming, fishing, and boating, are the most popular activities in the
park. This can be attributed to the fact that all three park units are
located alongside some of the finest shoreline in the nation, which
includes expansive bays, basins, creeks, marshes, and open water. The
primary use of the open water resources in the Sandy Hook unit is from
powerboats and secondarily by PWC owners. Motorized watercraft using
the water resources typically range from 15 to 23 feet in length. Some
yachts and fishing boats in the park are 50 to 100 feet in length.
Personal watercraft represented 10% to 15% of the motorized watercraft
within the recreation area before the April 22, 2002, prohibition.
Other water activities include sailing, kayaking, canoeing,
windsurfing, and kite-skiing. In the past, the majority of the PWC use
occured in the Staten Island Unit, followed closely by the Jamaica Bay
Unit. Personal watercraft use at Sandy Hook was limited.
Personal watercraft use within GATE has probably occurred since PWC
were first introduced to the public. Personal watercraft use began in
the 1980's and grew very rapidly. While the increase in PWC use has
recently slowed down, use still continued to climb slowly prior to the
prohibition. The rise may be attributed to design features which make
it possible now for some PWC to carry more than two passengers and even
as many as six. Personal watercraft use is most popular for
approximately six months of the year.
Before the general regulation (36 CFR 3.24) on PWC use was
effective on April 22, 2002, of the three GATE units, only the Sandy
Hook Unit had actively managed and restricted PWC use within its
boundaries. The restrictions were accomplished through the use of the
Superintendent's Compendium. Since June 1990, all waters in Horseshoe
Cove, north of a line which runs from the end of the sand spit 120' ESE
to the shoreline of Sandy Hook, all waters within Spermaceti Cove, and
all waters east of a line from the south end of Skeleton Island to the
north End of Plum Island have been closed to PWC use.
Personal watercraft use in the Sandy Hook Unit is limited due to
restrictions that cover large portions of the unit and unfavorable
ocean and bay conditions. Occasionally violation notices are issued to
PWC users who enter restricted areas. According to NPS records, between
2000 and 2001, the Sandy Hook Unit had an annual average of 17,309
watercraft visits, or an average of 108 per day over a 160-day season.
Of this daily average, 15% (16) were assumed to be PWC.
The heaviest PWC use season is between July and September, when
launches take place south of the unit from private and public
properties and marinas, also along the area between Sandy Hook and the
mainland. The Atlantic Highlands Municipal Harbor is the largest marina
in Sandy Hook Bay, and approximately 35% its use is from PWC users. The
marina regulates marine operations by prohibiting water-skiing and wave
jumping within 100 feet of another vessel.
Of particular concern is the impact to GATE's estuaries, which
include open salt water, salt marshes, and fresh water, which empties
into these bodies of water. Gateway National Recreation Area has over
3,000 acres of fresh and tidal wetlands. The wetlands provide the
habitat for hundreds of birds, fish, mammals, reptiles, amphibians,
shellfish, and other invertebrate species. Water based recreational
activity competes for use of the shoreline with wildlife. Due to the
delicate nature of these areas and other visitor experience issues the
NPS is recommending that PWC use should be prohibited, except to
provide passage through the park waters when traveling in the
Shrewsbury River Channel.
Resource Protection and Public Use Issues
Gateway National Recreation Area Environmental Assessment
As a companion document to this NPRM, NPS has issued the Personal
Watercraft Use Environmental Assessment for Gateway National Recreation
Area. The EA was open for public review and comment from May 15 to June
15, 2003. Copies of the EA may be downloaded at http://nps.gov/gate/pwc/ea.pdf.
The purpose of the EA is to evaluate a range of alternatives and
strategies for the management of PWC use at GATE to ensure the
protection of park resources and values while offering recreational
opportunities as provided for in the National Recreation Area's
enabling legislation, purpose, mission, and goals. The assessment
assumed alternatives would be implemented beginning in 2002 and
considered a 10-year period, from 2002 to 2012. The assessment also
compares each alternative to PWC use before April 22, 2002, when the
prohibition took effect. In addition, the EA defines such terms as
``negligible'' and ``adverse.'' In this document, these terms are used
to describe the environmental impact. Refer to the EA for complete
definitions.
The EA evaluates four alternatives addressing the use of PWC at the
three park units of GATE--Jamaica Bay, Staten Island, and Sandy Hook.
Each unit is assessed separately. The following describes the four
alternatives discussed in the EA for the Sandy Hook Unit:
Under alternative A, a special regulation would be promulgated to
continue the current management and regulation of PWC, as provided for
in the Superintendent's Compendium for the Sandy Hook Unit. Personal
watercraft use would continue to be prohibited from all waters in
Horseshoe Cove, Spermaceti Cove, the area between the south end of
Skeleton Hill Island and the north end of Plum Island, and within 500
feet of swimming beaches or 300 feet of other beaches. This alternative
is considered the ``baseline'' alternative to compare against other
management strategies, including closure of the unit to PWC use.
Operational restrictions at the unit would include those regulations
mandated by New Jersey State boating regulations.
Under alternative B, PWC use would continue but would be limited to
the navigational channels in the Sandy Hook Unit. Personal watercraft
use would be prohibited in all NPS jurisdictional waters in Sandy Hook
Bay except for the Shrewsbury River Channel and the Sandy Hook Channel.
The oceanside of the unit would be closed to PWC use. All other
operational restrictions at the unit, including the New Jersey State
boating regulations, would continue to be enforced, as described under
alternative A.
Under alternative C, PWC use would continue but only in the
navigational channel connecting the Shrewsbury River (at the
southernmost boundary of the unit) with the waters of Sandy Hook Bay
west of the park boundary. Personal watercraft use would not be allowed
in the Sandy Hook Channel, the False Hook Channel (which parallels the
Atlantic coast beaches), or in any of the oceanside waters. As
described under alternative A, all operational restrictions, including
the New Jersey State boating regulations, would continue to be enforced
within the Shrewsbury River Channel.
The final alternative is a no-action alternative. The no-action
alternative
[[Page 9491]]
assumes a scenario of discontinuing all PWC use within this national
park system unit. The NPS would take no further action to promulgate a
special regulation to retain PWC use, which would result in a ban on
PWC use within the unit, including the portions of the Shrewsbury River
Channel and the Sandy Hook Channel within the unit.
A preferred alternative is selected for each unit that would best
fulfill park responsibilities as trustee of the sensitive habitat;
ensure safe, healthful, productive, and aesthetically and culturally
pleasing surroundings; and attain a wider range of beneficial uses of
the environment without degradation, risk of health or safety, or other
undesirable and unintended consequences. The following summarizes the
preferred alternative at the Sandy Hook Unit.
Based on the environmental analysis prepared for PWC use at GATE,
Sandy Hook Unit, alternative C is the preferred alternative.
Alternative C allows limited and restricted PWC use under a special
regulation solely for the purpose of access to waters outside of the
park. This document proposes regulations to implement alternative C.
Under alternative C, PWC use would not be allowed within the park
boundaries of the Sandy Hook Unit, except that PWC would only be
allowed to transit the navigational channel connecting the Shrewsbury
River (at the southernmost boundary of the unit) with the waters of
Sandy Hook Bay west of the park boundary. Operational restrictions at
the unit include those restrictions imposed by New Jersey State boating
regulations.
As previously noted, NPS will consider the comments received on
this proposal, as well as the comments received on the EA. In the final
rule, the NPS will implement these alternatives as proposed, or choose
a different alternative or combination of alternatives. Therefore, the
public should review and consider the other alternatives contained in
the EA when making comments on this proposed rule.
The following summarizes the predominant resource protection and
public use issues associated with reinstating PWC use at the Sandy Hook
Unit of GATE. Each of these issues is analyzed in the Gateway National
Recreation Area, Personal Watercraft Use Environmental Assessment.
Water Quality
The proposed rule will manage PWC to prevent further degradation of
water quality in estuarine and ocean waters, to manage PWC emissions
that enter the water in accordance with anti-degradation policies and
goals, and to protect plankton and other aquatic organisms from PWC
emissions and sediment disturbances so that the viability of dependent
species is conserved.
Most research on the effects of PWC on water quality focuses on the
impacts of two-stroke engines, and it is assumed that any impacts
caused by these engines also apply to the PWC powered by them. There is
general agreement that two-stroke engines discharge a gas-oil mixture
into the water. Fuel used in PWC engines contains many hydrocarbons,
including benzene, toluene, ethylbenzene, and xylene (collectively
referred to as BTEX) and polyaromatic hydrocarbons (PAHs). PAH also are
released from boat engines, including those in PWC. These compounds are
not found appreciably in the unburned fuel mixture, but rather are
products of combustion. Discharges of these compounds--BTEX and PAH--
have potential adverse effects on water quality.
A typical conventional (i.e., carbureted) two-stroke PWC engine
discharges as much as 30% of the unburned fuel mixture directly into
the water. At common fuel consumption rates, an average two-hour ride
on a PWC may discharge 3 gallons of fuel into the water. According to
the California Air Resources Board, an average PWC can discharge
between 1.2 and 3.3 gallons of fuel during one hour at full throttle.
It is recognized that as time passes fewer of these types of PWCs are
used and newer models sold have substantially reduced emissions.
Hydrocarbon (HC) discharges to water are expected to decrease
substantially over the next 10 years due to mandated improvements in
engine technology.
Under this proposed rule only the portion of the Shrewsbury River
Channel within the jurisdiction of the Sandy Hook Unit would be open to
PWC use. This portion of the Shrewsbury River Channel consists of
approximately 17 acres of surface water with an average depth of over
13 feet, which is slightly deeper than the 8-to 12-foot average depth
of the unit's waters overall. This restriction would contribute to
improved water quality by eliminating PWC pollutants and sediment
suspension in shallow water areas of the unit. However, PWC use would
be concentrated in a smaller area, resulting in more localized and
intensified adverse effects of PWC pollutants before they are
dispersed.
Since PWC use would be banned completely from the unit's oceanside
waters (park boundary extends for quarter mile offshore), this proposed
rule would have a beneficial impact on water quality and associated
biota on this side of Sandy Hook. Impacts on water quality in the
unit's bayside waters would be somewhat greater than under other
options considered because PWC use would be concentrated within
approximately 17 acres of surface water within the Shrewsbury River
Channel. Currents in this navigational channel are swift, and tide- and
wind-driven mixing would rapidly dilute PWC pollutants in this area.
Impacts from PWC pollutants under ecotoxicological and human health
benchmarks are expected to be negligible in 2002 and 2012. Cumulative
impacts on aquatic organisms and human health from all motorized
watercraft emissions would be negligible in all areas in 2002 and 2012.
Therefore, this proposed rule would not impair water quality.
Air Quality
The proposed rule intends to manage PWC activity so that PWC air
emissions of harmful compounds do not contribute to air quality
degradation, and do not adversely affect visitor health and safety.
Personal watercraft emits various compounds that pollute the air.
In the two-stroke engines commonly used in PWC, the lubricating oil is
used once and is expelled as part of the exhaust; and the combustion
process results in emissions of air pollutants such as volatile organic
compounds (VOC), nitrogen oxides (NOX), particulate matter
(PM), and carbon monoxide (CO). Personal watercraft also emits fuel
components such as benzene that are known to cause adverse health
effects. Even though PWC engine exhaust is usually routed below the
waterline, a portion of the exhaust gases go into the air. These air
pollutants may adversely impact park visitor and employee health, as
well as sensitive park resources.
For example, in the presence of sunlight VOC and NOX
emissions combine to form ozone. Ozone causes respiratory problems in
humans, including cough, airway irritation, and chest pain during
inhalations. Ozone is also toxic to sensitive species of vegetation. It
causes visible foliar injury, decreases plant growth, and increases
plant susceptibility to insects and disease. Carbon monoxide can affect
humans as well. It interferes with the oxygen carrying capacity of
blood, resulting in lack of oxygen to tissues. NOX and PM
emissions associated with PWC use can also degrade visibility.
NOX can also contribute to acid
[[Page 9492]]
deposition effects on plants, water, and soil. However, because
emission estimates show that NOX from PWC are minimal (less
than 5 tons per year), acid deposition effects attributable to PWC use
are expected to be minimal.
Under this proposed rule, only Shrewsbury River Channel within the
Sandy Hook Unit would be open to PWC use. Restricting PWC use to the
Shrewsbury River Channel within NPS boundaries, with no PWC use in
oceanside waters, would result in negligible adverse impacts from CO
and PM emissions. Located in an ozone non-attainment area, there would
be minor adverse impacts from NOX, while impacts from VOC
would be moderate in 2002, decreasing to minor by 2012. Overall,
emissions from all boating activities would result in moderate adverse
impacts from CO and negligible adverse impacts from PM. For ozone
precursors in a non-attainment area, impacts from NOX would
be moderate adverse and from VOC major adverse. Therefore, this
proposed rule would not impair air quality resources.
Personal watercraft annual emissions would result in moderate
adverse impacts for ozone exposure and negligible impacts for
visibility. There are no perceptible visibility impacts or ozone injury
on plants. Cumulative emissions from all PWC and other motorized
boating activities would result in moderate adverse impacts related to
ozone exposure and negligible impacts for visibility. Based on this
analysis, this proposed rule would not impair air quality related
values.
Soundscapes
The proposed rule would manage noise from PWC use in affected areas
so that visitors' health and safety is not adversely affected and would
improve conditions so visitor enjoyment will not be disturbed by PWC
use.
The primary soundscape issue relative to PWC use is that other
visitors may perceive the sound made by PWC as an intrusion or
nuisance, thereby disrupting their experiences. This disruption is
generally short term because PWC travel along the shore to outlying
areas. However, as PWC use increases and concentrates at beach areas,
related noise becomes more of an issue, particularly during certain
times of the day.
The biggest difference between noise from PWC and that from
motorboats is that the former continually leave the water, which
magnifies noise in two ways. Without the muffling effect of water, the
engine noise is typically 15 dBA louder and the smacking of the craft
against the water surface results in a loud ``whoop'' or series of
them. With the rapid maneuvering and frequent speed changes, the
impeller has no constant ``throughput'' and no consistent load on the
engine. Consequently, the engine speed rises and falls, resulting in a
variable pitch. This constantly changing noise is often perceived as
more disturbing than the constant noise from motorboats.
Personal watercraft users tend to operate close to shore, to
operate in confined areas, and to travel in groups, making noise more
noticeable to other recreationists. Motorboats traveling back and forth
in one area at open throttle or spinning around in small inlets also
generate complaints about noise levels; however, most motorboats tend
to operate away from shore and to navigate in a straight line, thus
being less noticeable to other recreationists.
Only the Shrewsbury River Channel in the Sandy Hook Unit would be
open to PWC use under the proposed rule. Personal watercraft use that
was allowed before April 22, 2002, on the oceanside and limited bayside
areas of the unit would be eliminated. Other motorboat access to the
unit's waters would not be affected. Personal watercraft-related noise
impacts would be negligible over the short and long term and would
mostly be caused by continued use outside unit boundaries. Ambient
levels are higher on the bayside and would be slightly reduced from
those previous to the ban as a result of prohibiting PWC within the
park (up to a quarter mile off shore) except for use in the Shrewsbury
River Channel. Due to the level of human activity and use restrictions,
PWC use would result in negligible adverse impacts on other visitors
and the natural soundscapes. Prohibiting PWC use on the oceanside of
the unit would have a beneficial impact, reducing noise levels from PWC
use.
Personal watercraft use restrictions would limit the areas of PWC
use, with beneficial impacts on both the oceanside and bayside. Noise
impacts would be negligible over the short and long term. Cumulative
impacts of boating noise, ambient noise levels, and PWC noise would
range from negligible to minor adverse, depending on location and time
of year and compared to the natural soundscape. Therefore, the proposed
rule would not impair any soundscape-related values.
Wildlife and Wildlife Habitat
This proposed rule intends to protect a part of the largest
collection of natural ecosystems and wildlife habitats in the New York
City metropolitan area, to protect birds and other wildlife from the
effects of PWC-generated noise, especially during nesting seasons and
other critical life stages, to protect fish and wildlife from the
adverse effects that result from the bioaccumulation of contaminants,
such as PAHs, emitted from PWC and to encourage increasing biodiversity
of flora and fauna.
Some research suggests that PWC use affects wildlife by causing
interruption of normal activities, alarm or flight, avoidance or
degradation of habitat, and effects on reproductive success. This is
thought to be a result of a combination of PWC speed, noise and ability
to access sensitive areas, especially in shallow-water depths.
Waterfowl and nesting birds are the most vulnerable to PWC. Fleeing a
disturbance created by PWC may force birds to abandon eggs during
crucial embryo development stages, prevent nest defense from predators,
and contribute to stress and associated behavior changes. Impacts to
sensitive species are documented under ``Threatened, Endangered, or
Special Concern Species.''
Under the proposed rule, only the Shrewsbury River Channel would be
open to PWC use in the Sandy Hook Unit. Prohibiting PWC use from all
other areas within the unit would further minimize the potential for
adverse impacts on wildlife, habitat, and aquatic fauna resulting in a
beneficial impact. Negligible adverse impacts over the short and long
term could result from disturbing waterfowl and other wildlife in open
water near the Shrewsbury River Channel. Future increases in PWC use
are likely around the Sandy Hook Unit, along with increases in other
motorized watercraft use in and adjacent to the unit, with a greater
potential for adverse effects to wildlife and habitat in the unit. The
intensity of adverse impacts would be minor and indirect over the short
and long term because species sensitive to noise and human activity are
not expected to regularly occur in high-use areas or immediately
adjacent habitats during peak periods. Therefore, limiting the area
exposed to disturbance by PWC use would not impair wildlife, wildlife
habitat, or aquatic fauna.
Threatened, Endangered, or Special Concern Species
This proposed rule aims to improve the status of GATE's four listed
threatened and endangered and protected species and their habitats.
The same issues described for PWC use and general wildlife also
pertain to special concern species. Potential impacts from PWC include
inducing flight and alarm responses, disrupting normal behaviors and
causing stress,
[[Page 9493]]
degrading habitat quality, and potentially affecting reproductive
success. Special status species at the recreation area include Federal
or State listed threatened, endangered, or candidate species.
The Endangered Species Act (16 U.S.C 1531 et seq.) mandates that
all Federal agencies consider the potential effects of their actions on
species listed as threatened or endangered. If the NPS determines that
an action may adversely affect a federally listed species, consultation
with the U.S. Fish and Wildlife Service is required to ensure that the
action will not jeopardize the species' continued existence or result
in the destruction or adverse modification of critical habitat.
Federally endangered wildlife species documented to occur in the
Sandy Hook Unit include the Kemp's ridley sea turtle, leatherback sea
turtle, northern right whale, humpback whale, and fin whale. Federally
listed threatened wildlife species documented to occur in the area
include the piping plover, loggerhead sea turtle, and northeastern
beach tiger beetle.
Personal watercraft use would only be allowed in the Shrewsbury
River Channel, which would minimize the potential for adverse impacts
on special status species occurring in the unit. Impacts to species in
nearshore and shoreline areas would be beneficial since most of these
areas would be unaffected by PWC use. Closing all ocean beaches to PWC
use within the unit would minimize the potential for disturbance of
special status shorebirds nesting, foraging, or resting along the ocean
beaches. Restricting PWC access from shallow water habitat would also
enhance the quality habitat for sea turtles that may occur in the area.
The proposed rule is not likely to adversely affect threatened,
endangered, or special concern species that occur in the Sandy Hook
Unit.
Shoreline Vegetation
This proposed regulation intends to regulate PWC use to reduce
erosion in areas where shoreline vegetation is extremely sensitive and
to manage PWC use to protect sensitive shoreline areas (vegetation/
erosion) from PWC activity and access.
Under the proposed rule for the Sandy Hook Unit impacts to
shoreline and tidal wetland vegetation and habitats would be beneficial
because all shoreline and nearshore areas would be closed to PWC use.
Cumulative impacts would be minor, direct and indirect, and adverse
over the short and long term because of continued, limited access to
shallow water areas by conventional motorized watercraft and continued
foot traffic around landing areas. This proposed rule would not impair
shoreline vegetation or wetland habitats.
Visitor Experience
In proposing this regulation, NPS aims to manage the potential
conflicts between PWC use and park visitors and to help ensure that
visitors safely enjoy and are satisfied with the quality of park
recreational activities.
Impacts on PWC Users
Impacts would be both short and long term and minor to moderate as
a consequence of closing most areas of the unit to PWC use. The
Shrewsbury River Channel would remain open to PWC use. Other areas
outside of NPS boundaries would remain available to PWC users.
Impacts on Other Boaters
Interactions between other boaters and PWC operators would continue
on a limited basis within the Shrewsbury River Channel, but potential
impacts on the non-PWC boater visitor experiences would be reduced
because of the prohibition of PWCs in other use areas. Based on this
analysis, the proposed rule would have negligible adverse impacts in
the Shrewsbury River Channel and beneficial impacts elsewhere.
Impacts on Other Visitors
Other visitors would have limited contact with PWC operators. The
effects on park visitors would be beneficial because PWC users would be
prohibited from operating within park waters (except within the
Shrewsbury River Channel) and prohibited from landing anywhere within
the park.
Therefore, this proposed rule would have beneficial impacts on the
experiences of visitors other than PWC users. There would be minor to
moderate adverse impacts on PWC users as a consequence of closing most
areas of the unit to PWC use other than the Shrewsbury River Channel.
Cumulative impacts on all PWC users would be negligible to minor
because areas outside the unit would remain open to PWC use. Impacts on
other boaters, as well as other visitors onshore, would be beneficial
within the unit and negligible adverse outside of the unit, with
potential for increased congestion in the waterways outside the park.
Most visitors would continue to be satisfied with their experiences at
the Sandy Hook Unit.
Visitor Conflict and Safety
With this proposed rule, NPS intends to minimize or reduce the
potential for PWC user accidents, to minimize or reduce the potential
safety conflicts between PWC users and other water recreation users, to
decrease visitor accident and incident rates, and to help ensure that
visitors safely enjoy and are satisfied with the quality of park
recreation activities.
Some research suggests that PWC use is viewed by some segments of
the public as a nuisance due to the noise, speed, and overall
environmental effects, while others believe that PWC use is no
different from other watercraft, and recreational users have a
``right'' to enjoy this sport.
Closing most of Sandy Hook's waters to PWC use would have
beneficial impacts on swimmers and other boaters. There would be a
minor potential for accidents between PWC users and other boaters in
the Shrewsbury River Channel. An increased potential for accidents
between PWC users and other boaters could occur outside NPS waters.
Some beneficial impacts would result from restrictions on PWC use and
reduced potential for conflicts and accidents.
The Proposed Rule
As established by the April 2000 National Park Service rule, PWC
use is prohibited in all NPS areas unless determined appropriate. The
process used to identify appropriate PWC use at GATE considered the
known and potential effects of PWC on park natural resources,
traditional uses, and public health and safety.
National Park Service proposes to allow limited PWC use at GATE
under a special regulation in Sec. 7.29. Since NPS is proposing
different special rules for each of the three units (Jamaica Bay,
Staten Island, and Sandy Hook) within the GATE, three new paragraphs
would be added to Sec. 7.29.
Under this proposed rule, NPS proposes to allow PWC use in the
Sandy Hook Unit only in the navigational channel connecting the
Shrewsbury River (at the southernmost boundary of the unit) with the
waters of Sandy Hook Bay west of the park boundary. Also this proposed
rule would prohibit PWC users from launching or landing PWCs within the
Sandy Hook Unit unit.
In addition to the limitations in the proposed special regulation,
all State and Federal regulations regarding PWC use will be enforced by
the NPS pursuant to 36 CFR 3.1. For the Sandy Hook Unit this would mean
New Jersey law.
[[Page 9494]]
Compliance With Other Laws
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and has not been reviewed
by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This determination is based upon the Economic Impact
Analysis (EIA) prepared for PWC use at all three units. The EIA may be
viewed on the park's Web site at http://nps.gov/gate/pwc/ea.pdf. All
preferred alternatives would best fulfill park responsibilities as
trustee of the habitat; ensuring safe, healthful, productive, and
aesthetically and culturally pleasing surroundings; and attaining a
wide range of beneficial uses of the environment without degradation,
risk of health or safety, or other undesirable and unintended
consequences.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The EA has
taken into consideration the following Federal, State and other agency
plans and activities:
Federal
a. 1972 Coastal Zone Management Act.
b. 1982 Coastal Barriers Resources Act.
c. Gerritsen Creek Restoration Project (Army Corps of Engineers).
d. Jamaica Bay Ecosystem Restoration Project (National Park Service
and Army Corps of Engineers).
e. Jamaica Bay Shoreline Protection Project (National Park Service
and Army Corps of Engineers).
f. Jamaica Bay Ecological Research and Restoration Team (National
Park Service and Army Corps of Engineers).
State
a. 2000 Non-Point Source Management Program (New York State).
b. New Jersey Coastal Management Plan.
c. New York Coastal Management Program.
d. New Jersey Watershed Management Area 12.
e. 1998 New York Clean Water Action Plan.
f. New Jersey Water Quality Standards.
g. 2000 New Jersey Water Quality Inventory Report.
h. New York Water Quality Standards, New York State.
Implementation Plan
a. New York and New Jersey State Boating Laws.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues. This
rule is one of the special regulations being issued for managing PWC
use in National Park Units. The NPS published general regulations (36
CFR 3.24) in March 2000, requiring individual park areas to adopt
special regulations to authorize PWC use. The implementation of the
requirement of the general regulation continues to generate interest
and discussion from the public concerning the overall effect of
authorizing PWC use and NPS policy and park management.
Regulatory Flexibility Act
The Department of the Interior certifies that this rulemaking will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on a report entitled ``Economic Analysis of
Personal Watercraft Regulations in Gateway National Recreation Area''
(RTI, International, March 2002). This document may be viewed on the
park's Web site at: http://www.nps.gov/gate/pphtml/news.html.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. This rule is an
agency specific rule and does not impose any other requirements on
other agencies, governments, or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A taking implication assessment is
not required. No taking of personal property will occur as a result of
this rule.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. This proposed rule only affects use of NPS
administered lands and waters. It has no outside effects on other areas
by allowing PWC use in specific areas of the park.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB Form 83-I is not required.
National Environmental Policy Act
As a companion document to this NPRM, NPS has issued the Personal
Watercraft Use Environmental Assessment for Gateway National Recreation
Area. The EA was open for public review and comment from May 15 to June
15, 2003. Copies of the EA may be downloaded from the Web at: http://nps.gov/gate/pwc/ea.pdf.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential
effects on Federally recognized Indian tribes and have determined that
there are no potential effects. In the EA, the Sacred Sites/Native
American Concerns section states: This is not an issue at GATE because
there are no known sacred sites or Native American concerns at GATE or,
more specifically, within the vicinity of existing or potential future
landing areas for PWC use areas.
Clarity of Rule
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to read if it were divided into
more (but shorter) sections? (A ``section'' appears
[[Page 9495]]
in bold type and is preceded by the symbol ``Sec. '' and a numbered
heading; for example [Sec. 7.29 Gateway Recreation Area.] (5) Is the
description of the rule in the ``Supplementary Information'' section of
the preamble helpful in understanding the proposed rule? What else
could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.
You may also e-mail the comments to this address: [email protected].
Drafting Information: The primary authors of this regulation are:
Barry T. Sullivan, General Superintendent, Jos[eacute] Rosario, Chief,
Operations Support, HQ, Liam Strain, Park Ranger, Operations Support,
HQ, Gateway NRA; Sarah Bransom, Environmental Quality Division; and
Jerry Case, Regulations Program Manager.
Public Participation
You may submit comments, identified by the number RIN 1024-AD42, by
any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov Follow the
instructions for submitting electronic comments.
--E-mail at GATE--PWCComments @louisberger.com Use RIN 1024-AD42 in the
subject line.
--Mail or hand deliver to: General Superintendent, Gateway National
Recreation Area, 210 New York Avenue, Staten Island, NY 10306.
Our practice is to make comments, including names and addresses of
respondents, available for public review during regular business hours.
Individual respondents may request that we withhold their home address
from the rulemaking record, which we will honor to the extent allowable
by law. If you wish us to withhold your name and/or address, you must
state this prominently at the beginning of your comment. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials or organizations or
businesses, available for public inspection in their entirety.
List of Subjects in 36 CFR Part 7
District of Columbia, National Parks, Reporting and recordkeeping
requirements.
In consideration of the foregoing, the National Park Service
proposes to amend 36 CFR part 7 as follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The authority for part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137(1981) and D.C. Code 40-721 (1981).
2. Amend Sec. 7.29 by adding paragraph (f) to read as follows:
Sec. 7.29 Gateway National Recreation Area
* * * * *
(f) Personal watercraft (PWC): Sandy Hook Unit.
(1) PWC use is allowed in the Sandy Hook Unit of Gateway National
Recreation Area only in that portion of the Shrewsbury River Channel
connecting the Shrewsbury River (at the southernmost boundary of the
unit) with the waters of Sandy Hook Bay, west of the park boundary.
(2) Launching or landing PWCs within the Sandy Hook Unit is
prohibited.
(3) The Superintendent may temporarily limit, restrict, or
terminate access to the areas designated for PWC use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives.
Dated: February 13, 2006.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-2647 Filed 2-23-06; 8:45 am]
BILLING CODE 4312-52-P