[Federal Register: July 6, 2005 (Volume 70, Number 128)]
[Rules and Regulations]
[Page 38759-38767]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy05-5]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC94
Fire Island National Seashore, Personal Watercraft Use
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule designates areas where personal watercraft (PWC) may
be used in Fire Island National Seashore, New York. This rule
implements the provisions of the National Park Service (NPS) general
regulations authorizing parks to allow the use of PWC by promulgating a
special regulation. The NPS Management Policies 2001 require individual
parks to 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.
EFFECTIVE DATE: This rule is effective July 6, 2005.
ADDRESSES: Mail inquiries to Superintendent, Fire Island National
Seashore, 120 Laurel Street, Patchogue, NY 11772. E-mail:
michael_reynolds@nps.gov. (631) 289 4810 x225.
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:
Jerry_Case@nps.gov.
SUPPLEMENTARY INFORMATION:
Background
Personal Watercraft Regulation
On March 21, 2000, the National Park Service published a regulation
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 waterbased
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 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 allowed.
Description of Fire Island National Seashore
Fire Island National Seashore is a vital part of America's national
system of parks, monuments, battlefields, recreation areas, and other
natural and cultural resources. Located on a 32-mile long barrier
island off the south shore of Long Island, New York, Fire Island
National Seashore encompasses approximately 19,500 acres--many of which
are bay and ocean waters--available to more than 4 million visitors
each year. The National Seashore is interspersed with 17 local private
communities, the William Floyd Estate, a maritime forest known as the
Sunken Forest, and the Otis Pike Wilderness Area--the only Federal
wilderness area in New York State. Together, these components comprise
a seashore ecosystem of wildlife, private communities, and outdoor
recreational activities, such as the use of personal watercraft (PWC).
The Fire Island National Seashore extends from the easterly
boundary of the main unit of Robert Moses State Park eastward to
Moriches Inlet and includes Fire Island proper and the surrounding
islands and marshlands in
[[Page 38760]]
the Great South Bay, Bellport Bay, and Moriches Bay adjacent to Fire
Island. Included in the boundaries are Sexton Island, West Fire and
East Fire Islands, Hollins Island, Ridge Island, Pelican Island,
Pattersquash Island, and Reeves Island and other small and adjacent
islands, marshlands, and wetlands that lend themselves to contiguity
and reasonable administration within the National Seashore and the
waters surrounding the National Seashore to distances of 1,000 feet in
the Atlantic Ocean and up to 4,000 feet in Great South Bay and Moriches
Bay. The NPS mainland terminal and headquarters are on the Patchogue
River within Suffolk County, New York.
Fire Island National Seashore is fragmented by public and private
beaches. Fire Island National Seashore includes the Otis Pike
Wilderness Area established in 1981, the Sunken Forest, Watch Hill,
Sailors Haven, the Fire Island Lighthouse (placed on the National
Register of Historic Places in 1981), and the William Floyd Estate
(placed on the National Register of Historic Places in 1980).
The resources and values that define the natural environment of
Fire Island National Seashore include a diverse assemblage of wildlife,
vegetation communities, water resources, geological features, and
physical processes reflecting the complexity of the land/sea interface
along the North Atlantic coast. Wildlife resources are a myriad of
aquatic and terrestrial species inhabiting estuarine, dune and beach
habitats. The indigenous plant communities reflect the adaptive
extremes necessary for survival on a barrier island, where exposure to
salt spray, lack of freshwater, and shifting sands create a harsh and
dynamic environment.
The aquatic habitats of Fire Island and the adjacent coastal bays
are central to the significance of the National Seashore. The inshore
waters are part of a network of coastal lagoons that parallel the south
shore of the Long Island coast from Breezy Point, off the tip of
southern Manhattan, over 100 miles east to South Hampton. Fire Island
lies in the middle of this complex system. The bays are uniformly
shallow with an average depth of 1.2 meters (4 feet) and are generally
characterized as poorly flushing due to restricted inlet tidal
exchange.
From a regional perspective, Fire Island National Seashore includes
the highest percentage of remaining undeveloped barrier islands of the
south shore of the Long Island barrier island system. Extensive salt
marshes, intertidal flats, and the broad shallow margins of the coastal
bays within and adjacent to Fire Island are key components of an
estuarine system crucial to the maintenance of regional biological
diversity and ecosystem health.
Fire Island National Seashore provides important habitat for a
number of federally listed threatened and endangered species, including
but not limited to the peregrine falcon, roseate tern, loggerhead,
Kemp's ridley, leatherback, hawksbill, and green sea turtles, bald
eagle, piping plover, and sea beach amaranth. Of these species, the
National Seashore provides critical habitat for piping plover and sea
beach amaranth and is a focal point for North Atlantic conservation and
restoration efforts. The eastern 8 miles of the park provide the most
favorable conditions for piping plover breeding activity and support a
majority of the local population of the species.
In addition to the piping plover, the National Seashore provides
important habitat for a multitude of bird species throughout the year.
The island is renowned for the autumn migration of hawks and abundance
of wintering waterfowl and is of critical importance as wintering,
staging, and breeding habitat for a myriad of bird species. Shorebirds,
colonial waterbirds, neotropical migratory songbirds, and a variety of
wading birds intensively utilize park habitats, and in general, occur
in greater abundance and diversity than on the adjacent mainland.
The coastal waters within Fire Island National Seashore are
regularly used by a variety of marine mammals on a seasonal or
transitory basis. More than fifteen species have been documented in the
National Seashore, all of which are protected under the Marine Mammal
Protection Act of 1972. The most commonly observed species are seals,
harbor porpoise, and bottlenose dolphin, generally occurring in ocean
nearshore waters. Seals are most commonly observed during the fall and
winter months, while bottlenose dolphins are present largely during the
summer.
Oceanic and estuarine waters and their associated animal and plant
life (biota) also play a dominant role in recreational use of the
National Seashore. Over 90 percent of visits to the park involve the
use of aquatic habitats. The primary recreational activities include
swimming, walking, sightseeing, wildlife photography and observation,
picnicking, and saltwater fishing.
Purpose of Fire Island National Seashore
Fire Island National Seashore was authorized on September 11, 1964
(Pub. L. 88-587) ``for the purpose of conserving and preserving for the
use of future generations certain relatively unspoiled and undeveloped
beaches, dunes, and other natural features within Suffolk County, New
York, which possess high values to the Nation as examples of unspoiled
areas of great natural beauty * * * to establish an area to be known as
the `Fire Island National Seashore.' ''
The purposes of Fire Island National Seashore, as stated in its
Strategic Plan (available at http://www.nps.gov/fiis/ stratplanFY01-
05.htm), are as follows:
Preserve the natural and cultural resources within
administrative boundaries.
Permit hunting, fishing, and shellfishing within
boundaries in accordance with U.S. and New York State laws.
Preserve the Sunken Forest tract from bay to ocean without
developing roads therein.
Preserve the main dwelling, furnishings, grounds, and
outbuildings of the William Floyd Estate, home of the Floyd family for
eight generations.
Administer mainland ferry terminal and headquarters sites
not to exceed 12 acres on the Patchogue River.
Preserve the Otis Pike Fire Island High Dunes Wilderness.
Provide for public access, use, and enjoyment.
Work with the communities within the park to mutually
achieve the goals of both the park and the residents.
Authority and Jurisdiction
The National Park Service is granted broad authority under 16
U.S.C. 1 et seq., the NPS' ``Organic Act,'' to regulate the use of the
Federal areas known as national parks. In addition, the Organic Act (16
U.S.C. 3) 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
* * *''
The NPS's regulatory authority over waters subject to the
jurisdiction of the United States, including navigable waters and areas
within their ordinary
[[Page 38761]]
reach, is based upon the Property and 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 authority to regulate activities within the National Park System
boundaries occurring on waters subject to the jurisdiction of the
United States.
PWC Use at Fire Island National Seashore
PWC use at Fire Island National Seashore is a relatively recent
phenomenon, paralleling the national trend of increasing popularity and
sales of PWC during the 1980s and 1990s.
Personal watercraft use began within the Fire Island National
Seashore boundaries in the Great South Bay over 20 years ago, as soon
as they were available and on the market. PWC users can access Fire
Island National Seashore in a variety of ways; however, there are no
public boat ramps or public roads located within the National Seashore
boundaries. PWC users access the National Seashore via marinas located
in the private communities and by landing on and launching from
undeveloped beaches or larger vessels.
A variety of sources within the region provided estimates of
typical PWC use in the Great South Bay and Fire Island National
Seashore area. Staff from the Suffolk County Department of Parks and
the Police Marine Bureau, local municipalities, local dealerships, and
local marinas provided estimates of PWC use ranging from 5 to 25% of
all watercraft on the water at any given time of the day during peak
season. Although no annual counts are conducted of visitors accessing
the park by boat or personal watercraft, the National Park Service
conducted an informal survey on Saturdays and Sundays during the month
of July 1999. During this survey, NPS staff counted the number of
boats, including PWC, that were present. Based on the 1999 survey, the
estimated number of boats during that time period was between 200 and
300 watercraft. Approximately 20% of the total, or between 40 and 60
watercraft, were PWC. The waterways on the bayside of Fire Island are
often congested, with a variety of recreational and fishing boats
accessing the waters of the National Seashore from the Great South Bay.
PWC use is typically localized within Fire Island National
Seashore, occurring in areas near the private communities, ferryways
and navigation channels, and in areas near boat ramps. Park staff
indicate that the heaviest usage and highest general visitation area
for watercraft of any type is the western end of the island. PWC use is
also prevalent along the eastern boundary in Moriches Bay near Smith
Point County Park.
As previously stated, on April 20, 2000, the NPS adopted a final
rule for managing PWC use in areas of the National Park System. The
rule was implemented to ensure a prudent approach to PWC management
that would potentially allow their use, yet protect park resources,
sensitive natural areas, plants and wildlife, and reduce conflicts
between park visitors. The final rule prohibited PWC use in all
National Park System areas unless the NPS determined that this type of
waterbased activity was appropriate for a specific park based upon the
legislation establishing the area, the park's resources and values,
other visitor uses of the area, and overall management objectives.
Prior to April 22, 2002, PWC use was allowed throughout Fire Island
National Seashore. On April 22, 2002 all of the waters within the
National Seashore were closed to PWC use consistent with the 2000 NPS
PWC rule (36 CFR 3.24).
Notice of Proposed Rulemaking and Environmental Assessment
On August 23, 2004, the National Park Service published a Notice of
Proposed Rulemaking (NPRM) for the operation of PWC at Fire Island
National Seashore (69 FR 51788). The proposed rule for PWC use was
based on alternative C (one of four alternatives considered) in the
Environmental Assessment (EA) prepared by NPS for Fire Island National
Seashore. The EA was available for public review and comment from
September 3, 2002, through November 11, 2002, and the NPRM was
available for public comment from August 23, 2004, through October 22,
2004.
The purpose of the EA was to evaluate a range of alternatives and
strategies for the management of PWC use at Fire Island 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. In March
2004 an errata was issued. The changes to the EA described in the
errata were made to modify the preferred alternative and its analysis,
to address public comments on the draft EA, and to clarify the text.
The four alternatives considered included three alternatives to
continue PWC use under certain conditions: Alternative A would
establish, through regulation, the PWC policies that existed prior to
2000 when PWC use was permitted throughout Fire Island National
Seashore; alternative B would limit PWC use to areas adjacent to beach
communities; and modified alternative C would continue to allow PWC
access to the national seashore with additional management and
geographic restrictions. The additional geographic restrictions west of
Sunken Forest would include a 1,000 foot buffer around all shorelines,
with access to beach communities only through established access
channels and ferryways. East of the western boundary of Sunken Forest
PWC use would be forbidden in Seashore waters, except for access to
beach communities only through established access channels and
ferryways. In addition, a no-action alternative was considered that
would discontinue all PWC use within the National Seashore. The four
alternatives were evaluated with respect to PWC impacts on water
quality, air quality, soundscapes, wildlife, wildlife habitat,
shoreline vegetation, visitor conflicts, and visitor safety.
Based on the analysis NPS determined that modified alternative C is
the environmentally preferred alternative. (For the remainder of this
document ``alternative C'' refers to modified alternative C.)
Alternative C best fulfills NPS responsibilities as trustee of Fire
Island National Seashore's sensitive habitat; ensuring safe, healthful,
productive, and aesthetically and culturally pleasing surroundings; and
attaining a wider range of beneficial uses of the environment without
degradation, risk of health or safety, or other undesirable and
unintended consequences. Alternative C is the preferred alternative for
fulfilling the park's environmental mission without restricting valid
and lawful use. This final rule contains regulations to implement
alternative C at Fire Island National Seashore.
Summary of Comments
A proposed rule was published for public comment on August 23,
2004, with the comment period lasting until October 22, 2004. The
National Park Service received 528 timely written responses regarding
the proposed regulation. Of the responses, 527 were signatures on a
petition supporting the no action alternative and one was from an
individual opposing PWC use in national parks. The National Park
Service received approximately 4,600
[[Page 38762]]
comment letters regarding the EA. More than 1,300 were in support of
continuing PWC use as currently managed and approximately 740 supported
the no action alternative, or the complete ban of PWC within Fire
Island National Seashore. Approximately 1,600 comments opposed the
preferred alternative as originally proposed, prompting the development
of the modified alternative C. While the proposed rule reflected
changes to alternative C made as a result of comments on the EA, the
NPRM did not describe or discuss responses to those comments.
Therefore, this preamble addresses those comments. Within the following
discussion, 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 stated that PWC should not be singled out for
analysis and restriction.
NPS Response: The EA was not designed to determine if personal
watercraft caused more environmental damage to park resources than
other boats, but rather, to determine if personal watercraft use was
consistent with the park's enabling legislation and management goals
and objectives.
2. One commenter stated that allowing PWC use violates the park's
enabling legislation and NPS mandate to protect resources from harm.
NPS Response: No part of the settlement agreement or NPS analysis
of PWC use has violated or overturned Fire Island National Seashore's
enabling legislation. Both the personal watercraft settlement agreement
and the authorizing legislation for Fire Island were considered when
developing alternatives for the EA. The objective of the EA, as
described in the ``Purpose and Need'' chapter, was derived from the
enabling legislation for the national seashore. As further stated in
that chapter, a special analysis on the management of personal
watercraft was also provided under each alternative to meet the terms
of the settlement agreement between the Bluewater Network and the
National Park Service. As a result, the alternatives presented in the
EA protect resources and values while providing recreational
opportunities at Fire Island National Seashore. As required by NPS
policies, the impacts associated with personal watercraft and other
recreational uses are evaluated under each alternative to determine the
potential for impairment to park resources. Alternative C would not
result in impairment of park resources and values for which the
national seashore was established.
The seashore's mission statement grows from the park's legislative
mandate and is a synthesis of the park's mandated purpose and its
primary significances. It includes a commitment ``to providing access
and recreational and education opportunities to Fire Island National
Seashore visitors in this natural and cultural setting close to densely
populated urban and suburban areas.''
3. One commenter states that the EA does not use the best available
data and violates the court settlement with the 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 of the EA. NPS believes it has complied
with the court order and has assessed the impacts of personal
watercraft on those resources specified, 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 Council on
Environmental Quality 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.
The NPS believes that the EA is in full compliance with the settlement
agreement and that the rationale for limited PWC use within the
national recreation area has been adequately analyzed and explained.
4. One commenter is concerned about the use of Federal Aid in Sport
Fish Restoration Act (FASFRA) funds to construct boat launches and
facilities.
NPS Response: There are no provisions within the proposed
alternative for boat launches and facilities. Landing zones are
designated by the NPS for access only by PWC users. No FASFRA funds are
used within the national recreation area to construct boat launches.
5. Several commenters stated that the decision violates the Organic
Act, and other NPS laws, and will result in the impairment of
resources.
NPS Response: The ``Summary of Laws and Policies'' section in the
``Environmental Consequences'' chapter of the EA summarizes the three
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 the NPS Management Policies. An
explanation of how the Park Service applied these laws and policies to
analyze the effects of personal watercraft on Fire Island National
Seashore resources and values can be found under ``Impairment
Analysis'' in the ``Methodology'' section of the EA.
An impairment to a particular park resource or park value must rise
to the magnitude of a major impact, as defined by its context,
duration, and intensity and must also affect the ability of the
National Park Service to meet its mandates as established by Congress
in the park's enabling legislation. For each resource topic, the EA
establishes thresholds or indicators of magnitude of impact. An impact
approaching a ``major'' level of intensity is one indication that
impairment could result. 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.
The PWC Use Environmental Assessment is a proactive measure to
protect national seashore resources from harm. The purpose of the EA is
to assess the impacts of PWC use on identified resources within the
seashore boundaries. The National Park Service finds that the revised
preferred alternative (alternative C), when implemented under this
final rule, will not result in an impairment of park resources and
values for which the Fire Island National Seashore was established.
Comments Regarding the Preferred Alternative
6. Approximately 36 percent of all EA comments on the alternatives
addressed alternative A. The 1,320 comments received regarding
alternative A included one petition with 1,228 respondents and one
petition with four respondents in support of Alternative A. Less than
one percent of all EA comments on the alternatives addressed
alternative B. Approximately 44 percent of all EA comments on the
alternatives concerned Alternative C. Comments included a petition with
73 respondents that opposed Alternative C. Many comments questioned the
enforceability of a buffer and suggested a ban would be more effective.
Approximately 20 percent of all EA comments on the alternative were in
favor of the no-action alternative. Three petitions in favor of this
alternative were received including 44 respondents from the Bluewater
Network, 297 respondents from an unknown source, and 66 respondents
from another unknown
[[Page 38763]]
petition. The majority of comments received for the no-action
alternative were in support of a complete ban on PWC. All 528 comments
received on the proposed rule were in favor of the no-action
alternative.
Several commenters stated that the area restrictions in the
preferred alternative seem arbitrary and difficult to enforce.
NPS Response: Alternative C, the preferred alternative, was revised
before issuance of the NPRM to address the public comments received on
the EA. The revised alternative C, as adopted in this final rule, will
continue to allow PWC in the areas adjacent for access to the national
seashore with additional management and geographic restrictions. PWC
will be allowed to operate in Great South Bay from the western boundary
of the national seashore adjacent to Robert Moses State Park, east to
the western boundary of the Sunken Forest, excluding any area within
1,000 feet of the shoreline including East Fire Island and West Fire
Island; navigation channels marked by buoys or identified on the NOAA
navigational chart (12352) to include access channels to and from Fair
Harbor, Dunewood, Lonelyville, Atlantique, Cherry Grove, Fire Island
Pines, Davis Park, Great Gun Beach, Moriches Inlet, and to the
communities of Kismet, Saltaire, Ocean Beach, Ocean Bay Park, Point
O'Woods, Oakleyville, and Water Island at ``flat wake speed'; and the
Long Island Intracoastal Waterway within the park boundaries.
PWC will be prohibited from operation in all waters from the
shoreline to 1,000 feet offshore between the west boundary of Moriches
Inlet to the east boundary of Robert Moses State Park on the Atlantic
Ocean side of the national seashore.
Alternative C, as implemented in this final rule, allows for access
throughout the park in designated channels and ferryways; thus,
maintaining an equilibrium between visitor use and the protection of
resources.
Comments Regarding Water Quality
7. One commenter stated that the analysis disregarded or overlooked
relevant research regarding impacts to water quality from PWC use.
NPS Response: The protection of water quality within the national
seashore has been addressed in the EA in a conservative evaluation of
surface water quality impacts. Estimated minimum threshold volumes of
water were determined for the PWC use areas where concentrations of
gasoline constituents discharged from personal watercraft and other
outboard engines could potentially be toxic to aquatic organisms or
humans. Using the estimated threshold volumes, volumes of the areas
being evaluated, PWC and other motorboat high-use-day loadings of
chemicals identified as constituents of gasoline, and water quality
benchmarks, it is possible to identify potentially unacceptable impacts
to human health or the environment. Chronic water quality benchmarks
protective of aquatic populations and protective of human health were
acquired from various sources, including U.S. EPA water quality
criteria. Potential impacts to wildlife and plants from personal
watercraft were addressed in other sections of the EA.
The evaluation of water quality impacts examined impacts from PWCs
alone and in combination with other outboard motorboats. Impacts are
estimated to range from ``negligible'' to ``major'' for the various
combinations of alternatives, chemicals, PWCs and/or boats, and years
(2002 and 2012). The descriptions for each level of water quality
impacts are provided on page 95 of the EA. There is no conclusion in
the EA that PWC would have ``little impact'' on water quality in Fire
Island National Seashore as described in the comment. Further, it is
not conjectured that ``all petroleum compounds evaporate into the
atmosphere.''
8. One commenter stated that the analysis represents an outdated
look at potential emissions from an overstated PWC population of
conventional 2-stroke engines, and underestimated the accelerating
changeover to 4-stroke and newer 2-stroke engines. The net effect is
that the analysis overestimates potential PWC hydrocarbon emissions,
including benzene and polyaromatic hydrocarbons (PAHs).
NPS Response: The NPS recognizes that the assumption of all
personal watercraft using 2-stroke engines in 2002 is conservative but
believes it was appropriate to be protective of park resources. The
assumption is consistent with emission data available in California Air
Resources Board (CARB) (1998) and Bluewater Network (2001). 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 (Personal Watercraft and 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 2012 (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).
The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in
the calculations is considered conservative, yet realistic, since it is
within the range of concentrations measured in gasoline, according to
Gustafson et al. (1997).
Comments Regarding Air Quality
9. One commenter stated that the analysis failed to mention the
impact of PWC permeation losses on local air quality.
NPS Response: Permeation losses of volatile organic compounds
(VOCs) from personal watercraft were not included in the calculation of
air quality impacts primarily because these losses are insignificant
relative to emissions from operating personal watercraft. Using the
permeation loss numbers in the comment (estimated to be half the total
of 7 grams of losses per 24 hours from the fuel system), the permeation
losses per hour are orders of magnitude less than emissions from
operating personal watercraft. Therefore, including permeation losses
would have no effect on the results of the air quality impact analyses.
Also, permeation losses were not included because of numerous related
unknown contributing factors, such as the number of personal watercraft
refueling at the reservoir and the location of refueling (inside or
outside of the airshed).
10. One commenter stated that the use of the study by Kado et al to
suggest that the changeover from two-stroke carbureted to two-stroke
direct injection engines may increase emissions of PAH is in error.
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 U.S.
Environmental Protection Agency (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
[[Page 38764]]
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 (THC), which are assessed because they are the
focus of the EPA's emissions standards directed at manufacturers of
spark ignition marine gasoline engines (see 61 FR 52088; October 4,
1996). Neither peak exposure levels nor NIOSH nor OSHA standards are
included as criteria for analyzing air quality related impacts except
where short-term exposure is included in a NAAQS. The methodology for
assessing air quality impacts was based on a combination of annual
emission levels and the NAAQSs, which are aimed at protection of the
public. OSHA and NIOSH standards are intended primarily for workers and
others exposed to airborne chemicals for specific time periods. The
OSHA and NIOSH standards are not as suitable for application in the
context of local and regional analysis of a park or recreational area
as are the ambient standards, nor are they intended to protect the
general public from exposure to pollutants in ambient air.
11. One commenter expressed concern on the use of SUM06 data and
requested a more detailed analysis of the air quality impacts
associated with opening corridors to PWC use because the alternatives
considered in the EA, other than the no action alternative, do not
comply with General Conformity Regulations.
NPS Response: To assess the impact of ozone on plants, the 5-year
ozone index value was calculated and is represented as SUM06. The Air
Resources Division of the National Park Service, based on local
monitoring site data, developed SUM06 values used in each analysis.
The air quality impacts of the various alternatives were assessed
by considering the existing air quality levels and the air quality
related values present, and by using the estimated emissions and any
applicable, EPA-approved air quality models. Cumulative impacts were
analyzed quantitatively for all recreational watercraft. Fire Island
National Seashore maintains vehicular access to the park for cars,
trucks, and recreational vehicles; emissions from these vehicles and
other local and regional sources of air pollutants were not assessed
quantitatively but were considered qualitatively in the cumulative
impact assessment.
Located within the ozone non-attainment area, the proposed actions
are subject to the requirements and emission threshold set by the
Federal conformity rules (40 CFR part 93), in which the emission
threshold set for ozone precursor pollutants--nitrogen oxides
(NOX) or volatile organic compounds (VOC)--is 25 tons/year.
All ambient air quality levels except ozone meet the national ambient
air quality standards.
The Fire Island National Seashore area, located in Suffolk County,
New York, is designated by the U.S. Environmental Protection Agency as
in severe nonattainment for ozone, and as in attainment for all other
criteria pollutants (CO, NOX, SO2,
PM10, and lead). The Division of Air Resources within the
New York State Department of Environmental Conservation has included
control measures and has accounted for limited growth related to ozone
precursor sources, such as nonroad marine engines, in the State
Implementation Plan. The Division of Air Resources predicts that
Suffolk County will attain the national air quality standard for ozone
by 2007 (allowances for emissions of these pollutants are documented in
appendix N of the State Implementation Plan). The proposed action and
alternatives are subject to Federal conformity review but are not
predicted to add pollutants not already included in the State plan;
therefore, the proposed action and alternatives are presumed to conform
with the State plan, and a conformity determination is not required (40
CFR 93.158).
12. Several commenters stated that research indicated that direct-
injection 2-stroke engines are dirtier than 4-stroke engines.
NPS Response: It is agreed that two-stroke carbureted and two-
stroke DI engines generally emit greater amounts of pollutants than
four-stroke engines. Only 4 of the 20 PAHs included in the analyses
were detected in water: naphthalene, 2-methylnaphthalene, fluorene, and
acenaphthylene. Some pollutants (benzene, toluene, ethylbenzene, and
xylene, collectively referred to as BTEX, and formaldehyde) were
reported by CARB in the test tanks after 24 hours at approximately 50%
the concentrations seen immediately following the test. No results for
PAH concentrations after 24 hours were seen in the CARB (2001) results,
but a discussion of sampling/analyses of PAHs in the six environmental
compartments was presented.
EPA NONROAD model factors differ from those of CARB. As a result of
the EPA rule requiring the manufacturing of cleaner PWC engines, the
existing carbureted 2-stroke PWC will, over time, be replaced with PWC
with less-polluting models. This replacement, with the anticipated
resultant improvement in air quality, is parallel to that experienced
in urban environments as the automobile fleet becomes cleaner over
time.
13. One commenter stated that the EA erroneously assumes that none
of the PWC operating in Fire Island National Seashore would meet the
CARB standards. The quantitative emissions analysis performed by Sierra
Research also refutes the EA's use of the term ``major'' to describe
current impact of ozone precursors emitted by PWC.
NPS Response: The NPS emissions calculations are conservative only
in the sense that they do not specifically account for watercraft that
have already been or will be converted to meet CARB standards. Any
reductions in emissions resulting from implementing control strategies
were taken into account, as were changes in emissions resulting from
increased or decreased usage. In addition, located within the ozone
non-attainment area, the proposed actions are subject to the
requirements and emission threshold set by the Federal conformity rules
(40 CFR part 93), in which the emission threshold set for ozone
precursor pollutants--nitrogen oxides (NOX) or volatile
organic compounds (VOC)--is 25 tons/year. All ambient air quality
levels except ozone meet the national ambient air quality standards.
Comments Regarding Soundscapes
14. One commenter stated that continued PWC use at Fire Island
National Seashore will not result in sound emissions that exceed the
applicable Federal or State noise abatement standards since
technological innovations by the PWC companies will continue to result
in substantial noise reductions.
NPS Response: The NPS concurs that on-going and future improvements
in engine technology and design would likely further reduce the noise
emitted from PWC. However, given that the ambient noise levels at the
national seashore are negligible to minor in most cases, improved
technology reductions would not significantly reduce ambient noise
levels.
15. One commenter stated that the NPS methodology was unclear and
should clarify between decibels and A-weighting.
NPS Response: The impacts for the EA were weighed in decibels.
16. One commenter stated that the EA fails to recognize seashore
visitor's desires to hear natural sounds.
NPS Response: The EA considered the cumulative impact of PWC and
other
[[Page 38765]]
watercraft, while qualitatively considering ambient noise levels; which
could include airplanes, etc. While specific background noise studies
are not available at Fire Island National Seashore, certain conditions
have been taken into account given the number of PWC users in the
identified study areas and land use patterns surrounding those areas.
For example, it is assumed that the soundscape throughout the majority
of area I is that of an active suburban area, while area II is an area
of day use, and area III is more characteristic of a quiet rural town
with associated tourism.
17. One commenter stated that the analysis did not include Drowning
in Noise: Noise Costs of PWC in America and therefore the noise
analysis under represents the actual impacts.
NPS Response: One of the initial tasks in developing the Fire
Island National Seashore EA was a literature search. Drowning in Noise:
Noise Costs of Jet Skis in America was one of the many studies
reviewed. The reference to that study (Komanoff and Shaw 2000) was
discussed in the ``Summary of Available Research on the Effects of
Personal Watercraft'' section of the EA.
Comments Regarding Shoreline/Submerged Aquatic Vegetation
18. One commenter stated that there has been no documentation of
any adverse effects to shoreline vegetation from PWC use.
NPS Response: We agree there has been no current adverse impact to
shoreline vegetation. The analysis recognizes that PWC use to date has
resulted in only negligible adverse impacts to this vegetation, mostly
from PWC operators leaving their vessels and trampling vegetation. The
regulation creates a 1000' no PWC use zone from the shoreline to
protect shoreline and wetlands vegetation.
Comments Regarding Wildlife and Wildlife Habitat
19. Two commenters stated that the analysis lacked site-specific
data for impacts to fish, wildlife, and threatened and endangered
species at Fire Island National Seashore.
NPS Response: The scope of the EA did not include conducting site
specific studies regarding potential effects of PWC use on wildlife
species at Fire Island National Seashore. Analysis of potential impacts
of PWC use on wildlife at the national seashore was based on best
available data and input from park staff.
20. One commenter stated that PWC use and human activities
associated with their use may not be any more disturbing to wildlife
species than any other type of motorized or non-motorized watercraft.
The commenter cites research by Dr. James Rodgers of the Florida Fish
and Wildlife Conservation Commission, whose studies have shown that PWC
are no more likely to disturb wildlife than any other form of human
interaction. That PWC use posed less of a disturbance than other vessel
types. Dr. Rodgers' research clearly shows that there is no reason to
differentiate PWC from motorized boating based on claims of wildlife
disturbance.
NPS Response: Based on the documents provided as part of this
comment, it appears that personal watercraft are no more apt to disturb
wildlife than are small outboard motorboats. In addition to this
conclusion, Dr. Rodgers recommends that buffer zones be established,
creating minimum distances between boats (personal watercraft and
outboard motorboats) and nesting and foraging waterbirds. In Fire
Island National Seashore, a 1000-ft buffer and no-wake zones are
established by this regulation. With these restrictions in mind,
impacts to wildlife and wildlife habitat were judged to be negligible
to minor at most locations along the shoreline.
Comments Associated With Visitor Use, Experience, and Safety
21. One commenter stated that the reported accident numbers
involving PWC are higher because they get reported more often than
other boating accidents.
NPS Response: We disagree. Incidents involving watercraft of all
types, including personal watercraft, are reported to and logged by
National Park Service staff. A very small proportion of watercraft
accidents at Fire Island National Seashore are estimated to go
unreported.
22. One commenter stated that the analysis did not adequately
address PWC fire hazards.
NPS Response: According to the National Marine Manufacturers
Association, PWC manufacturers have sold roughly 1.2 million watercraft
during the last ten years. Out of 1.2 million PWC sold, the U.S. Coast
Guard had only 90 reports of fires/explosions in the years from 1995-
1999. This is less than 1% of PWC boats having reports of problems
associated with fires/explosions. As far as the recall campaigns
conducted by Kawasaki and Bombardier, the problems that were associated
with fuel tanks were fixed. Kawasaki conducted a recall for potentially
defective fuel filler necks and fuel tank outlet gaskets on 23, 579
models from the years 1989 and 1990. The fuel tank problems were
eliminated in Kawasaki's newer models, and the 1989 and 1990 models are
most likely not in use anymore since life expectancy of a PWC is only
five to seven years according to PWIA. Bombardier also did a recall for
its 1993, 1994, and 1995 models to reassess possible fuel tank design
flaws. However, the number of fuel tanks that had to be recalled was a
very small percent of the 1993, 1994, and 1995 fleets because fuel tank
sales only amounted to 2.16% of the total fleet during this period
(Bombardier, Inc.). The replacement fuel tanks differed from those
installed in the watercraft subject to the recall in that the
replacement tanks had revised filler neck radiuses, and the
installation procedure now also requires revised torque specifications
and the fuel system must successfully complete a pressure leak test.
Bombardier found that the major factor contributing to PWC fires/
explosions was over-torquing of the gear clamp. Bombardier was legally
required by the U.S. Coast Guard to fix 9.72% of the recalled models.
Out of 125, 349 recalls, the company repaired 48,370 units, which was
approximately 38% of the total recall, far exceeding their legal
obligation to repair units with potential problems.
Further fuel tank and engine problems that could be associated with
PWC fires has been reduced significantly since the National Marine
Manufacturers Association set requirements for meeting manufacturing
regulations established by the U.S. Coast Guard. Many companies even
choose to participate in the more stringent Certification Program
administered by the National Marine Manufacturers Association (NMMA).
The NMMA verifies annually, or whenever a new product is put on the
market, boat model lines to determine that they satisfy not only the
U.S. Coast Guard Regulations but also the more rigorous standards based
on those established by the American Boat and Yacht Council.
Accident data specific to Fire Island National Seashore shows no
incidents of PWC catching on fire or exploding at the park. Based on
the regulations imposed upon PWC manufacturers by the U.S. Coast Guard
and manufacturing associations, and the continued cooperation of
manufacturers to assess and fix any potential design flaws, the
National Park Service does not think PWC use presents any unusual fire
hazard at Fire Island National Seashore.
23. Several commenters stated that the analysis does not adequately
assess
[[Page 38766]]
the safety threat posed to park visitors by PWC use.
NPS Response: The EA has been revised to acknowledge the reference
(ACA 2001). According to New York State PWC accident trends, the number
of accidents reported in the State has fluctuated from 31 reported
accidents in 1994 to 140 reported accidents in 1996. However, the
manufacturers of personal watercraft provide training videos with each
watercraft they sell, and to date, 24 States, including New York,
require some type of boater education in order to operate a personal
watercraft.
Incidents involving watercraft of all types, including personal
watercraft, are reported to and logged by the National Park Service,
Suffolk County Marine Bureau, and the USCG or local constables. Eleven
accidents or incidents involving personal watercraft have been reported
at Fire Island National Seashore in the past five years. Accident
information generated by the U. S. Coast Guard has been incorporated
into the ``Summary of National Information of the Effects of Personal
Watercraft'' section of the ``Purpose and Need'' chapter of the Final
EA.
The inclusion of a buffer and the requirement of the flat-wake
speeds within the specified navigation channels, as detailed in
modified alternative C, will provide greater protection for swimmers,
fishermen, boats at the shoreline, and people in the water and at the
shoreline. Because of these measures under the modified preferred
alternative (alternative C), the National Park Service has found
personal watercraft use at Fire Island National Seashore to be
compatible with park management objectives and values under certain
regulation.
24. One commenter states that the EA also falls short of adequately
examining the adverse impacts of PWC use to canoeist and kayakers.
There is no evidence that NPS surveyed canoeist and kayakers regarding
how PWC impact their visitor experience of affect the likelihood of
return visits.
NPS Response: The regulation prohibits PWC use within 1000' of the
shoreline between the park's western boundary and the western boundary
of Sunken Forest and a complete prohibition in all other waters to the
east. These are the area most often used by kayakers and canoeists. The
seashore's mission includes a commitment ``to providing access and
recreational and education opportunities to Fire Island National
Seashore visitors in this natural and cultural setting close to densely
populated urban and suburban areas.'' The scope of the EA did not
include the conduct of visitor surveys beyond the annual survey
conducted by the park. Analysis of potential impacts of PWC use on
visitors to the national seashore was based on best available data,
input from park staff, and the results of analysis using that data.
Comments Related to Socioeconomics
25. One commenter stated that the economic impacts should not
outweigh environmental impacts.
NPS Response: We agree. The national seashore's mission includes a
commitment ``to providing access and recreational and education
opportunities to Fire Island National Seashore visitors in this natural
and cultural setting close to densely populated urban and suburban
areas.'' The park and the Superintendent are not just considering
economic impacts or environmental impacts, but must also consider the
potential impacts to their visitors as well as their park mission.
Changes to the Final Rule
Based on the preceding comments and responses, the NPS has made no
changes to the proposed rule language with regard to PWC operations.
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 National Park Service has completed the report
``Economic Analysis of Personal Watercraft Regulations in Fire Island
National Seashore'' (Law Engineering and Environmental Sciences, Inc.)
dated March 2002. The report found that this rule will not have a
negative economic impact. In fact this rule, which will not directly
impact local PWC dealerships and rental shops, may have an overall
positive impact on the local economy. This positive impact to the local
economy is a result of an increase of other users, most notably
canoeists, swimmers, anglers and traditional boaters seeking solitude
and quiet, and improved water quality.
(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 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 policy issues. This regulation
is one of the special regulations being issued for managing PWC use in
National Park Units. The National Park Service published the 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 requirements of the general regulation continues
to generate interest and discussion from the public concerning the
overall effect of authorizing PWC use and National Park Service policy
and park management.
Regulatory Flexibility Act
The Department of the Interior certifies that this document 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 upon the finding in a report prepared by
the National Park Service entitled, ``Economic Analysis of Personal
Watercraft Regulations in Fire Island National Seashore'' (Law
Engineering and Environmental Sciences, Inc., March 2002). The focus of
this study was to document the impact of this rule on two types of
small entities, PWC dealerships and PWC rental outlets. This report
found that the potential loss for these types of businesses as a result
of this rule would be minimal to none.
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. The National Park Service
has completed an economic analysis to make this determination. 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.
[[Page 38767]]
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 imposes no 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 taking implications. A taking implication assessment is not
required. No takings 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 rule only affects use of NPS administered
lands and waters. It has no outside effects on other areas and only
allows use within a small portion 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 National Park Service has analyzed this rule in accordance with
the criteria of the National Environmental Policy Act and has prepared
an Environmental Assessment (EA). The EA was open for public review and
comment from September 3, 2002, to November 11, 2002. A copy of the EA
and the errata is available by contacting the Superintendent, Fire
Island National Seashore,120 Laurel Street, Patchogue, New York 11772.
E-mail: michael_bilecki@nps.gov, Fax: (631) 289-4898, or on the
Internet at http://www.nps.gov/fiis/pwc.htm. A Finding of No
Significant Impact (FONSI) was approved on May 12, 2005. Copies of the
FONSI may be downloaded at http://www.nps.gov/fiis or obtained by
calling (631) 289 4810 x225 or writing to the Superintendent, Fire
Island National Seashore,120 Laurel Street, Patchogue, New York 11772.
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 final rule is effective upon publication in the Federal
Register. In accordance with the Administrative Procedure Act,
specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.20(d), is exempt
from the requirement of publication of a substantive rule not less than
30 days before its effective date.
As discussed in this preamble, the final rule is a part 7 special
regulation for Fire Island National Seashore that relieves the
restrictions imposed by the general regulation, 36 CFR 3.24. The
general regulation, 36 CFR 3.24, prohibits the use of PWC in units of
the national park system unless an individual park area has designated
the use of PWC by adopting a part 7 special regulation. The proposed
rule was published in the Federal Register (69 FR 51788) on August 23,
2004, with a 60-day period for notice and comment consistent with the
requirements of 5 U.S.C. 553(b). The Administrative Procedure Act,
pursuant to the exception in paragraph (d)(1), waives the section
553(d) 30-day waiting period when the published rule ``grants or
recognizes an exemption or relieves a restriction.'' In this rule the
NPS is authorizing the use of PWCs, which is otherwise prohibited by 36
CFR 3.24. As a result, the 30-day waiting period before the effective
date does not apply to the Fire Island National Seashore final rule.
List of Subjects in 36 CFR Part 7
National Parks, Reporting and Recordkeeping requirements.
0
For the reasons stated in the preamble, the National Park Service
amends 36 CFR part 7 as follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
0
1. The authority citation 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 paragraph (d) to Sec. 7.20 to read as follows:
Sec. 7.20 Fire Island National Seashore.
* * * * *
(d) Personal watercraft. (1) Personal watercraft (PWC) may operate
in the following locations and under the following conditions:
(i) Great South Bay from the western boundary of the national
seashore adjacent to Robert Moses State Park, east to the western
boundary of the Sunken Forest, excluding any area within 1,000 feet of
the shoreline, except as provided in (ii), including the area
surrounding East Fire Island and West Fire Island.
(ii) Navigation channels marked by buoys or identified on the NOAA
navigational chart (12352) to include access channels to and from Fair
Harbor, Dunewood, Lonelyville, Atlantique, Cherry Grove, Fire Island
Pines, Davis Park, Moriches Inlet, Kismet, Saltaire, Ocean Beach, Ocean
Bay Park, Point O'Woods, Oakleyville, and Water Island.
(iii) The Long Island Intracoastal Waterway within the park
boundaries.
(iv) At ``flat wake'' speeds (maximum 6 mph) within designated
marked channels to access town/community docks and harbors/marinas.
(2) 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: June 24, 2005.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-13209 Filed 7-5-05; 8:45 am]
BILLING CODE 4312-52-P