53020 Federal Register / Vol. 71, No. 174 / Friday, September 8, 2006 / Rules and Regulations 

a taxable year beginning after December 

31, 2004, and ending before September 

7, 2006 is filed before October 10, 2006, 

and the taxpayer is not filing an 

amended Federal income tax return for 

that taxable year pursuant to paragraph 

(g)(2) of this section before the 

taxpayer’s next filed original Federal 

income tax return, see paragraphs 

(d)(3)(iv) and (f)(7) of this section for the 

statements that must be attached to the 

taxpayer’s next filed original Federal 

income tax return. 

PART 602—OMB CONTROL NUMBERS 

UNDER THE PAPERWORK 

REDUCTION ACT 

■ Par. 4. The authority citation for part 

602 continues to read as follows: 

Authority: 26 U.S.C. 7805. 

■ Par. 5. In § 602.101, paragraph (b) is 

amended by adding the following entry 

in numerical order to the table to read 

as follows: 

§ 602.101 OMB control numbers. 

* * * * * 

(b) * * * 

CFR part or section where identified and described 

Current 

OMB 

control 

No. 

* * * * * 

1.45G–1T ...................................... 1545–

* * * * * 

Mark E. Matthews, 

Deputy Commissioner for Services and 

Enforcement. 

Eric Solomon, 

Acting Deputy Assistant Secretary of the 

Treasury (Tax Policy). 

[FR Doc. E6–14858 Filed 9–7–06; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

36 CFR Part 7 

RIN 1024–AD44 

Cape Lookout National Seashore, 

Personal Watercraft Use 

AGENCY: National Park Service, Interior. 

ACTION: Final rule. 

SUMMARY: This final rule designates 

areas where personal watercraft (PWC) 

may be used to access Cape Lookout 

National Seashore, North Carolina. This 

final rule implements the provisions of 

the National Park Service (NPS) general 

regulations authorizing park areas to 

allow the use of PWC by promulgating 

a special regulation. Individual parks 

must determine whether PWC use is 

appropriate for a specific park area 

based on an evaluation of that area’s 

enabling legislation, resources and 

values, other visitor uses, and overall 

management objectives. 

DATES: Effective Date: This rule is 

effective September 8, 2006. 

ADDRESSES: Mail inquiries to 

Superintendent, Cape Lookout National 

Seashore, 131 Charles Street, Harkers 

Island, NC 28531. 

FOR FURTHER INFORMATION CONTACT: Jerry 

Case, Regulations Program Manager, 

National Park Service, 1849 C Street, 

NW., Room 7241, Washington, DC 

20240. Phone: (202) 208–4206. E-mail: 

jerry_case@nps.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Personal Watercraft Regulation 

On March 21, 2000, the NPS 

published a regulation (36 CFR 3.24) on 

the management of PWC use within all 

units of the national park system (65 FR 

15077). The regulation prohibits PWC 

use in all national park units unless the 

NPS determines that this type of 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 for 21 

parks, lakeshores, seashores, and 

recreation areas. The regulation 

established a 2-year grace period 

following the final rule publication to 

provide these 21 park units time to 

consider whether PWC use should be 

permitted to continue. 

Description of Cape Lookout National 

Seashore 

Cape Lookout National Seashore was 

established by Congress in 1966 to 

conserve and preserve for public use 

and enjoyment the outstanding natural, 

cultural, and recreational values of a 

dynamic coastal barrier island 

environment for future generations. 

Cape Lookout National Seashore is a 

low, narrow, ribbon of sand located 

three miles off the mainland coast in the 

central coastal area of North Carolina 

and occupies more than 29,000 acres of 

land and water from Ocracoke Inlet on 

the northeast to Beaufort Inlet to the 

southwest. The national seashore 

consists of four main barrier islands 

(North Core Banks, Middle Core Banks, 

South Core Banks, and Shackleford 

Banks), which consist mostly of wide, 

bare beaches with low dunes covered by 

scattered grasses, flat grasslands 

bordered by dense vegetation, and large 

expanses of salt marsh alongside the 

sound. Congressionally established 

boundaries include 150′ of water from 

the mean low waterline on the sound 

side of all islands. There are no road 

connections to the mainland or between 

the islands. 

Coastal barrier islands, such as those 

located in Cape Lookout National 

Seashore, are unique land forms that 

provide protection for diverse aquatic 

habitats and serve as the mainland’s 

first line of defense against the impacts 

of severe coastal storms and erosion. 

Located at the interface of land and sea, 

the dominant physical factors 

responsible for shaping coastal 

landforms are tidal range, wave energy, 

and sediment supply from rivers and 

older, pre-existing coastal sand bodies. 

Relative changes in local sea level also 

profoundly affect coastal barrier island 

diversity. Coastal barrier islands exhibit 

the following six characteristics: 

• Subject to the impacts of coastal 

storms and sea level rise. 

• Buffer the mainland from the 

impact of storms. 

• Protect and maintain productive 

estuarine systems which support the 

nation’s fishing and shellfishing 

industries. 

• Consist primarily of unconsolidated 

sediments. 

• Subject to wind, wave, and tidal 

energies. 

• Include associated landward 

aquatic habitats which the non-wetland 

portion of the coastal barrier island 

protects from direct wave attack. 

Coastal barrier islands protect the 

aquatic habitats between the barrier 

island and the mainland. Together with 

their adjacent wetland, marsh, 

estuarine, inlet, and nearshore water 

habitats, coastal barriers support a 

tremendous variety of organisms. 

Millions of fish, shellfish, birds, 

mammals, and other wildlife depend on 

barriers and their associated wetlands 

for vital feeding, spawning, nesting, 

nursery, and resting habitat. 

Shackleford Banks contains the park’s 

most extensive maritime forest as well 

as wild horses that have adapted to this 

environment over the centuries. The 

islands are an excellent place to see 

birds, particularly during spring and fall 

migrations. A number of tern species, 

egrets, herons, and shorebirds nest here. 

Loggerhead turtles climb the beaches at 

nesting time. 


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Purpose of Cape Lookout National 

Seashore 

Cape Lookout National Seashore was 

authorized on March 10, 1966, by Public 

Law 89–366. Additional legislation, 

Public Law 93–477 (October 26, 1974), 

called for another 232-acre tract of land 

to be acquired, a review and 

recommendation of any suitable lands 

for wilderness designation, and 

authorized funding for land acquisition 

and essential public facilities. 

The purpose of Cape Lookout 

National Seashore is to conserve and 

preserve for public use and enjoyment 

the outstanding natural, cultural, and 

recreational values of a dynamic coastal 

barrier island environment for future 

generations. The national seashore 

serves as both a refuge for wildlife and 

a pleasuring ground for the public, 

including developed visitor amenities. 

The mission of Cape Lookout National 

Seashore is to: 

• Conserve and preserve for the 

future the outstanding natural resources 

of a dynamic coastal barrier island 

system; 

• Protect and interpret the significant 

cultural resources of past and 

contemporary maritime history; 

• Provide for public education and 

enrichment through proactive 

interpretation and scientific study; and 

• Provide for sustainable use of 

recreation resources and opportunities. 

Significance of Cape Lookout National 

Seashore 

Cape Lookout National Seashore is 

nationally recognized as an outstanding 

example of a dynamic natural coastal 

barrier island system. Cape Lookout is 

designated as a unit of the CarolinianSouth Atlantic Biosphere Reserve, 

United Nations Educational, Scientific 

and Cultural Organizations (UNESCO) 

Man and the Biosphere Reserve 

Program. The park contains: 

• Cultural resources rich in the 

maritime history of humankind’s 

attempt to survive at the edge of the sea; 

and 

• Critical habitat for endangered and 

threatened species and other unique 

wildlife including the legislatively 

protected wild horses of Shackleford 

Banks. 

Authority and Jurisdiction 

Under the National Park Service 

Organic Act of 1916 (Organic Act) (16 

U.S.C. 1 et seq.) Congress granted the 

NPS broad authority to regulate the use 

of the Federal areas known as national 

parks. In addition, the Organic Act 

authorizes the NPS, through the 

Secretary of the Interior, to ‘‘make and 

publish such rules and regulations as he 

may deem necessary or proper for the 

use and management of the parks 

* * *.’’

16 U.S.C. 1a–1 states, ‘‘The 

authorization of activities shall be 

conducted in light of the high public 

value and integrity of the National Park 

System and shall not be exercised in 

derogation of the values and purposes 

for which these various areas have been 

established * * *’’ (16 U.S.C. 3). 

As with the United States Coast Guard 

(USCG), NPS’s regulatory authority over 

waters subject to the jurisdiction of the 

United States, including navigable 

waters and areas within their ordinary 

reach, derives from the U.S. 

Constitution. In regard to the NPS, 

based upon the Property and Commerce 

Clauses, Congress in 1976 directed the 

NPS to ‘‘promulgate and enforce 

regulations concerning boating and 

other activities on or relating to waters 

within areas of the National Park 

System, including waters subject to the 

jurisdiction of the United States * * *.’’

(16 U.S.C. 1a–2(h)). In 1996, the NPS 

published a final rule (61 FR 35136, July 

5, 1996), amending 36 CFR 1.2(a)(3) to 

clarify its authority to regulate activities 

within the National Park System 

boundaries occurring on waters subject 

to the jurisdiction of the United States. 

Motorboats and other watercraft have 

been in use at Cape Lookout National 

Seashore since the park was established 

in 1966. It is unknown when PWC use 

first began at the national seashore. In 

compliance with the settlement with 

Bluewater Network, the national 

seashore closed to PWC use in April 

2002. Personal watercraft are prohibited 

from launching or landing on any lands, 

boat ramps or docks within the 

boundaries of the national seashore. 

Personal watercraft may not be towed 

on trailers or carried on vehicles within 

national seashore boundaries except at 

the Harker’s Island unit. This closure 

pertains to all of the barrier islands 

within the national seashore and the 

waters on the soundside of the islands 

within 150 feet of the mean low 

waterline. Outside of the park boundary, 

PWC use is governed by North Carolina 

PWC regulations. At present, the areas 

that were previously used by PWC 

owners for landing are closed with 

signs. 

Prior to the PWC closure, all areas of 

the park were open to PWC use. 

However, the majority of PWC use was 

concentrated in two areas of the 

national seashore that receive the 

heaviest visitor day-use in the park: (1) 

On the sound-side of South Core Banks 

at the Lighthouse (from the Lighthouse 

dock through Barden Inlet and Lookout 

Bight), and (2) the Shackleford Banks 

from Wade Shores west to Beaufort 

Inlet. Personal watercraft use of ocean 

beaches was rare due to rough surf 

conditions in the ocean and the hazard 

of beaching PWC in the ocean surf. 

Some PWC use occurred along North 

and South Core Banks from Portsmouth 

Village at the northern end of the 

national seashore to the lighthouse. This 

use was infrequent because of the 

prevalence of marshes and general lack 

of sound-side beaches along Core Banks, 

the large expanse of open water in Core 

Sound between the barrier islands and 

mainland North Carolina, and the low 

population of the adjacent communities 

in the ‘‘down east’’ as this portion of the 

national seashore is known locally. At 

public meetings held in October 2001, 

several participants indicated they had 

used their PWC to travel from locations 

such as Atlantic and Davis to the barrier 

islands. 

The popularity of Cape Lookout and 

Shackleford Banks where PWC use was 

concentrated can be attributed to the 

excellent soundside beaches in these 

areas, the attraction of the Cape Lookout 

lighthouse, traditional use of 

Shackleford Banks, their proximity to 

major inlets, and their close proximity 

to the three largest coastal population 

centers in Carteret County: Atlantic 

Beach, Morehead City, and Beaufort. 

NPRM and Environmental Assessment 

On December 29, 2005, the National 

Park Service published a Notice of 

Proposed Rulemaking (NPRM) for the 

operation of PWC at Cape Lookout 

National Seashore (70 FR 77089). The 

proposed rule for PWC use was based 

on alternative B (one of three 

alternatives considered) in the 

Environmental Assessment (EA) 

prepared by NPS for Cape Lookout 

National Seashore. The EA was open for 

public review and comment from 

January 24, 2005 to February 24, 2005. 

Copies of the EA may be downloaded at 

http://www.nps.gov/calo/parkplan.htm. 

The purpose of the EA was to evaluate 

a range of alternatives and strategies for 

the management of PWC use at Cape 

Lookout National Seashore to ensure the 

protection of park resources and values 

while offering recreational opportunities 

as provided for in the National 

Seashore’s enabling legislation, purpose, 

mission, and goals. The analysis 

assumed alternatives would be 

implemented beginning in 2003 and 

considered a 10-year period, from 2003 

to 2013. 

The EA evaluated three alternatives 

concerning the use of PWC at Cape 

Lookout National Seashore. The 

alternatives considered include: 


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• No-Action Alternative: Do not 

reinstate PWC use within the national 

seashore. No special regulation would 

be promulgated. 

• Alternative A: Reinstate PWC use as 

previously managed under a special 

regulation. 

• Alternative B: Reinstate PWC use 

under a special NPS regulation with 

additional management prescriptions. 

Based on the analysis prepared for 

PWC use at Cape Lookout National 

Seashore, alternative B is considered the 

environmentally preferred alternative 

because it best fulfills park 

responsibilities as trustee of sensitive 

habitat; ensures safe, healthful, 

productive, and aesthetically and 

culturally pleasing surroundings; and 

attains a wider range of beneficial uses 

of the environment without degradation, 

risk of health or safety, or other 

undesirable and unintended 

consequences. 

This final rule contains regulations to 

implement alternative B at Cape 

Lookout National Seashore. 

Summary of Comments 

A proposed rule on PWC use in the 

Cape Lookout National Seashore (Cape 

Lookout) was published in the Federal 

Register for public comment on 

December 29, 2005, with the comment 

period lasting until February 27, 2006. 

NPS received 1,685 timely written 

pieces of correspondence regarding the 

EA and proposed regulation. Of the 

pieces of correspondence, 5 were from 

government agencies, 11 were from 

businesses, conservation groups, or 

recreation groups, and 1,669 were from 

unaffiliated individuals. A total of 148 

comments supported alternative A, 25 

comments supported alternative B, 4 

comments opposed alternative B, 1519 

comments supported the no action 

alternative, and 11 comments opposed 

the no action alternative. Within the 

analysis, the term ‘‘commenter’’ refers to 

an individual, organization, or public 

agency that responded. The term 

‘‘comments’’ refers to statements made 

by a commenter. 

General Comments 

1. Several commenters suggested that 

the access restrictions, closures, and 

boating rules should be applied equally 

to all motorized vessels, and not just to 

PWC. 

NPS Response: As described under 

the Scope of the Analysis in the Purpose 

and Need section of the EA, the focus 

of the EA is to define management 

alternatives specific to PWC use. The 

plan analyzed a variety of impact topics 

to determine if personal watercraft use 

was consistent with the park’s enabling 

legislation and management goals and 

objectives. The goal of the EA was not 

to determine if these restrictions should 

also be applied to boats. Cape Lookout 

will consider subsequent rulemaking to 

address this issue for other watercraft 

and if subsequent rulemaking proceeds, 

that action would be subject to NEPA 

analysis and public comment. 

2. One commenter stated that there is 

a lack of site-specific data in the EA. 

NPS Response: The scope of the EA 

did not include the conduct of sitespecific studies regarding potential 

effects of PWC use on wildlife species, 

submerged aquatic vegetation beds, or 

visitor experience at Cape Lookout 

National Seashore. Analysis of potential 

impacts of PWC use on wildlife, 

submerged aquatic vegetation beds, and 

visitor experience at the national 

seashore was based on best available 

data, input from park staff, and the 

results of analysis using that data. 

3. One commenter stated that the 

current EA does not discuss 40 CFR 

1502.22 of the Council on 

Environmental Quality (CEQ) National 

Environmental Policy Act (NEPA) 

Regulations, which tells agencies that 

they have to make it clear when 

information is incomplete or 

unavailable. 

NPS Response: The EA discusses 

§ 1502.22 of the CEQ NEPA Regulations 

in the Environmental Consequences 

section under the Summary of Laws and 

Policies on page 92. The EA mentions 

in several places that data is unavailable 

or had not been collected, including 

soundscapes and wildlife and wildlife 

habitat sections. Best available data, 

literature, and consultation with subject 

matter experts were used to determine 

impacts, as disclosed in the EA. 

4. One commenter stated that any 

attempt to bar PWC or disparately 

regulate PWC would transgress NPS’

regulatory duties and would be arbitrary 

and capricious in light of the EA’s 

findings. 

NPS Response: Cape Lookout 

National Seashore was established in 

1966. The purpose of Cape Lookout is 

to conserve and preserve for public use 

and enjoyment the outstanding natural, 

cultural, and recreational values of a 

dynamic coastal barrier island 

environment for future generations. The 

preferred alternative meets the 

objectives of the national seashore to a 

large degree, as well as meeting the 

purpose and need for action, and 

therefore is within the legislative and 

regulatory duties of Cape Lookout 

National Seashore. 

5. One commenter stated that PWC 

use conflicts with NPS’ mission and 

purpose. 

NPS Response: Cape Lookout 

National Seashore was established to 

conserve and preserve for public use 

and enjoyment the outstanding natural, 

cultural, and recreational values of a 

dynamic coastal barrier island 

environment for future generations. The 

national seashore serves as both a refuge 

for wildlife and a pleasuring ground for 

the public, including developed visitor 

amenities. Under this regulation PWC 

use is limited to providing a means of 

transportation to the island for the user 

to enjoy the natural, cultural, and 

recreational values of Cape Lookout 

National Seashore. 

6. One commenter stated that the EA 

relies upon incorrect information 

regarding PWC numbers in the U.S. and 

uses outdated data from 2001 to guide 

its decision making process. 

NPS Response: A check of the 

National Marine Manufacturers 

Association (NMMA) Web site revealed 

that indeed, PWC numbers for the years 

2000 and 2001 are higher than quoted 

in the EA. Regardless, these are 

nationwide PWC numbers that were not 

used in the impacts analysis. The 

numbers used in the impacts analysis 

were park-specific, based on available 

visitor data and observations by Cape 

Lookout National Seashore staff. 

7. One commenter stated that NPS has 

miscalculated the population growth 

rate of PWC. 

NPS Response: The numbers used in 

the impacts analysis were park-specific, 

based on available visitor data, park 

ranger counts in 2000 and 2001, and 

observations by seashore staff. They 

were not based on USCG data. 

8. One commenter is concerned that 

the current EA is being politically 

manipulated in order to reauthorize 

PWC operation. 

NPS Response: Due to the increased 

level of public comment, Cape Lookout 

reanalyzed the issues and impact topics 

described in the 2001 Determination in 

more detail in the EA. The 2001 

Determination can be viewed at: http:// 

www.nps.gov/calo/parkplan.htm. The 

results of the in-depth analysis in the 

EA indicated that impacts range from 

negligible to moderate for all impact 

topics, and the NPS chose alternative B 

as the preferred alternative. 

9. One commenter stated that the 

Proposed Rule should be redrafted to 

incorporate the ban on PWC that exists 

outside of NPS General Regulation. 

NPS Response: The ban or prohibition 

that exists at Cape Lookout is the result 

of NPS General Regulations that were 

promulgated in 2000 and took effect in 

2002. This was a servicewide 

prohibition and affected all parks 

without special regulations. This 


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rulemaking, or special regulation, will 

open Cape Lookout to PWC use, with 

restrictions. Only parks with special 

regulations can allow PWC use. 

10. One commenter stated that PWC 

are designated as Class A boats by the 

USCG, and are subject to the same rules 

and registration fees as all other 

powered craft. 

NPS Response: Yes, and the NPS 

adopts applicable USCG regulations 

which are found in Title 33 CFR as well 

as applicable State laws and regulations 

within whose exterior boundaries a park 

is located. Therefore PWC are subject to 

the same rules and registration fees as 

all other powered craft. 

11. One commenter asked why the 

PWC closure was rescinded in 2001, 

and why NPS wants to take the 

proposed action. 

NPS Response: Due to the increased 

level of public comment and 

congressional interest, Cape Lookout 

rescinded the 2001 closure to allow the 

issues and impact topics described in 

the 2001 Determination to be considered 

in more detail in the EA. The 2001 

Determination can be viewed at: http:// 

www.nps.gov/calo/parkplan.htm. As 

described in the EA, alternative B is the 

preferred alternative because, with 

limitations on PWC use and other 

mitigation, impacts can be minimized 

and managed. 

12. One commenter stated that the 

spread of exotic species related to PWC 

operation is overlooked in the EA. 

NPS Response: This topic has been 

addressed in the errata to the EA as an 

issue that was considered but not 

further evaluated. After consultation 

with subject matter experts and 

available data, no exotic species are 

known to occur in areas accessible by 

PWC within Cape Lookout National 

Seashore. 

13. One commenter disagrees with the 

cumulative impacts analysis. 

NPS Response: NPS acknowledges 

that the area around Cape Lookout 

National Seashore is being developed 

and this may result in increased PWC 

use. However, the EA shows that 

allowing limited PWC access at Cape 

Lookout National Seashore, will not 

result in more than negligible to minor 

cumulative impact, even when all motor 

boats are included in the analysis. 

14. The EA and rule text should be 

rewritten to state that all obligations and 

restrictions would be imposed on the 

PWC operator, not the PWC equipment. 

Organization of the rule should also be 

improved. 

NPS Response: The text in the rule, 

errata to the EA, and the Finding Of No 

Significant Impact (FONSI) has been 

clarified to state that the restrictions 

will be imposed on the PWC operator, 

not the PWC equipment. Organization of 

the rule has also been improved and text 

was clarified. 

Comments Regarding Alternatives 

15. One commenter stated that this 

environmental analysis could benefit 

greatly by constructing an alternatives 

matrix that shows on one axis the 

alternatives and on the other axis 

environmental conditions that might be 

affected. 

NPS Response: Table A: Summary of 

the Impact Analysis on page v of the EA 

provides an overview of which resource 

topics would be affected by each 

alternative. Alternatives A and B would 

impact water quality, air quality, 

soundscapes, shoreline and submerged 

aquatic vegetation, wildlife, aquatic 

fauna, threatened and endangered 

species, visitor use and experience, 

visitor conflicts and safety, cultural 

resources, and socioeconomics. Under 

the no-action alternative, none of the 

impact topics would be impacted by 

PWC since they would be banned, but 

all of the impact topics would be 

impacted to some capacity because of 

the cumulative impacts from boats. 

16. One commenter stated that the 

alternative to limit PWC use by season 

or time of day was considered but not 

analyzed further. However, it could 

make a viable alternative because it 

would ‘‘minimize conflicts with other 

users in congested areas,’’ which could 

be an important purpose for this action. 

NPS Response: Time of day 

restrictions already exist because North 

Carolina PWC regulations prohibit the 

use of PWC from sunset to sunrise and 

have been adopted by the NPS. Limiting 

PWC use by season was not considered 

viable since few defensible reasons were 

identified to exclude PWCs at one time 

of year or another. The most obvious 

reason to limit access by season, for 

protection of birds and endangered 

species from access by PWCs, other 

boats, vehicles and pedestrians, is 

already managed by general closures. 

Monitoring of bird nesting areas and 

implementation of closures is routinely 

accomplished by the park resource 

management staff. 

17. One commenter stated that the 

following three sections in the EA, 

‘‘Unavoidable Adverse Impacts,’’ ‘‘Loss 

in Long-term Availability or 

Productivity to Achieve Short-term 

Gain,’’ and ‘‘Irreversible or Irretrievable 

Commitments of Resources,’’ pose some 

serious difficulties for the 

environmental impact analysis as a 

whole. 

NPS Response: Additional language 

has been added on the errata to the EA 

for the ‘‘Unavoidable Adverse Impacts’’

section to address the no-action 

alternative. The section ‘‘Loss in Longterm Availability or Productivity to 

Achieve Short-Term Gain’’ has been 

removed as per the errata because this 

section is required in Environmental 

Impact Statements, but is optional in 

EAs. 

The section ‘‘Irreversible or 

Irretrievable Commitments of 

Resources’’ discusses the minor use of 

fossil fuels to power PWC being an 

irretrievable commitment of this 

resource. Considering the very small 

number of PWC operators that use Cape 

Lookout National Seashore each year, 

which is estimated as less than one 

percent of visitors, the implementation 

of alternative B would not have more 

than a minor impact on irretrievable 

resources. Alternative B was identified 

as the environmentally preferred 

alternative because it meets the criteria 

established by the Council on 

Environmental Quality and the 

Department of the Interior (Department 

Manual) and also meets the purpose, 

needs, and objectives of this PWC EA. 

18. Several commenters stated that 

alternative B does not merit status as the 

environmentally preferred alternative 

and should be rejected because it 

discriminates against PWC, 

unreasonably restricts PWC use, 

jeopardizes the safety of PWC users, 

motorized boaters and swimmers, and 

undermines the park’s regulatory 

objectives. 

NPS Response: The EA was written to 

evaluate the appropriateness of PWC 

use within the National Seashore. The 

objective of the EA, as described in the 

‘‘Purpose and Need’’ Chapter, was to 

evaluate a range of alternatives and 

strategies for the management of PWC 

use in order to ensure the protection of 

park resources and values, while 

offering recreational opportunities as 

provided in the enabling legislation, 

purpose, mission, and goals. An 

analysis of personal watercraft use and 

the impact topics was provided under 

each alternative. The EA was designed 

to determine if PWC use, not motorized 

boat use in general, was consistent with 

the park’s enabling legislation and 

management goals and objectives. 

19. Several commenters are concerned 

that the preferred alternative may 

violate the Organic Act by allowing the 

use of personal watercraft within Cape 

Lookout, which they believe will impair 

park resources or result in the 

derogation of park resources and values. 

NPS Response: The ‘‘Summary of 

Laws and Policies’’ section in the 

‘‘Environmental Consequences’’ chapter 

of the EA summarizes the three 


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overarching laws that guide the National 

Park Service in making decisions 

concerning protection of park resources. 

These laws, as well as others, are also 

reflected in NPS Management Policies. 

An explanation of how the Park Service 

applied these laws and policies to 

analyze the effects of personal 

watercraft on Cape Lookout National 

Seashore resources and values can be 

found under ‘‘Impairment Analysis’’ in 

the ‘‘Methodology’’ section of the EA. 

Impairment that is prohibited by the 

Organic Act and General Authorities 

Act is an impact that, in the professional 

judgment of the responsible NPS 

manager, would harm the integrity of 

park resources or values, including the 

opportunities that otherwise would be 

present for the enjoyment of those 

resources or values. 

An impairment to a particular park 

resource or park value may be indicated 

when the impact reaches the magnitude 

of ‘‘major,’’ as defined by its context, 

duration, and intensity. For each impact 

topic, the EA establishes thresholds or 

indicators of magnitude of impact. For 

each impact topic, when the intensity 

approached ‘‘major,’’ the park would 

consider mitigation measures to reduce 

the potential for ‘‘major’’ impacts, thus 

reducing the potential for impairment. 

For the PWC regulations at Cape 

Lookout National Seashore the National 

Park Service has determined in the EA 

that the preferred alternative would not 

result in impairment of park resources 

or values. 

20. Several commenters support 

alternative B. 

NPS Response: Comment noted. NPS 

chose alternative B because it appears to 

meet the needs of most park visitors 

while continuing to protect the 

environment. 

21. A commenter stated that the PWC 

use restrictions as stated in the 

proposed rule are vague, confusing, and 

defective from an enforcement 

standpoint. There is also redundancy in 

the description. 

NPS Response: The description of 

alternative B states ‘‘PWC would be 

allowed to access these areas * * * by 

remaining perpendicular to shore and 

operating at flat wake speed.’’ This 

means that any other type of use would 

continue to be prohibited. All PWC use 

is prohibited in the National Park 

System by general regulation except as 

authorized by park specific special 

regulation. Language in the rule, errata 

to the EA, and the FONSI has been 

rewritten to clarify the type of PWC use 

authorized and locations within the 

national seashore where it is permitted. 

22. One commenter stated that 

management options such as flat wake 

zones, set backs, time and date 

restrictions were considered in the 

national rule and were determined to be 

too expensive to enforce and inadequate 

to protect park system resources. 

NPS Response: After analysis as part 

of the NEPA process, Cape Lookout 

National Seashore is proposing to 

implement flat wake restrictions for 

better protection of park resources and 

visitor safety. The flat wake restrictions 

should not be difficult to enforce at 

Cape Lookout because the restriction 

will apply to PWC in all locations 

within the park. 

23. One commenter stated that 

Alternative B undermines NPS’s safety 

objective and endangers PWC users and 

other park visitors, bans PWC use in 

some park locations without 

justification, and severely limits use 

within the designated use areas, and 

that the EA overstates the potential 

impact of PWC use on park resources. 

NPS Response: The EA analyzed a 

variety of impact topics to determine if 

personal watercraft use was consistent 

with the park’s enabling legislation and 

management goals and objectives. As a 

result of this analysis, it was determined 

that the management prescriptions 

under alternative B, Reinstate PWC Use 

with Additional Management 

Prescriptions, would best protect 

natural and cultural resources, mitigate 

PWC safety concerns, provide for visitor 

health and safety, and enhance overall 

visitor experience. The plan was 

designed to determine if PWC use, not 

motorboat use in general, was consistent 

with the park’s enabling legislation and 

management goals and objectives. 

24. Many commenters support the noaction alternative. These commenters 

state that the EA provides no basis for 

overturning the Park Service’s 2001 

determination to ban PWC operation at 

Cape Lookout and that the preferred 

alternative breaks Federal law and fails 

to address many of the problems 

associated with PWC operation 

identified in the 2001 determination. 

Finally, these commenters believe the 

EA overlooks important research, 

reaches conclusions without supporting 

documentation or scientific evidence, 

and appears to violate the terms of the 

court-ordered settlement agreement 

with Bluewater Network. 

NPS Response: A summary of the NPS 

rulemaking and associated personal 

watercraft litigation is provided in 

Chapter 1, Purpose of and Need for 

Action, Background. NPS believes it has 

complied with the court order and has 

assessed the potential impacts of 

personal watercraft on those resources 

identified in the settlement agreement, 

as well as other resources that could be 

affected. This analysis was done for 

every applicable impact topic with the 

best available data, as required by 

regulations (40 CFR 1502.22). Where 

data was lacking, best professional 

judgment prevailed using assumptions 

and extrapolations from scientific 

literature, other park units where 

personal watercraft are used, and 

personal observations of park staff. NPS 

believes that the EA is in full 

compliance with the court-ordered 

settlement and that the rationale for 

limited use within the national seashore 

has been adequately analyzed and 

explained. 

Due to the increased level of public 

comment and congressional interest, 

Cape Lookout reconsidered the issues 

and impact topics described in the 2001 

Determination in more detail in the EA. 

The 2001 Determination can be viewed 

at: http://www.nps.gov/calo/ 

parkplan.htm. The results of the indepth analysis in the EA indicated that 

potential impacts under Alternative B 

range from negligible to moderate for all 

impact topics, and chose Alternative B 

as the preferred alternative. 

25. Some commenters believe the noaction alternative discriminates against 

PWC operators. 

NPS Response: The objective of the 

EA, as described in the ‘‘Purpose and 

Need’’ Chapter, was to evaluate a range 

of alternatives and strategies for the 

management of PWC use in order to 

ensure the protection of park resources 

and values, as provided in the enabling 

legislation, purpose, mission, and goals. 

26. The North Carolina Department of 

Environment and Natural Resources, 

Division of Coastal Management (DCM) 

suggests that a monitoring program be 

implemented to evaluate whether the 

adverse environmental effects of 

implementing the proposed action are, 

as expected, insignificant. 

NPS Response: The restrictions for 

Cape Lookout are only associated with 

the area that is within the park 

boundary. The only water area within 

the boundary is on the sound side 

where the boundary is 150 feet from low 

water. It would be difficult to 

differentiate any impacts that were due 

to PWC use outside the park boundary 

(150-foot zone) compared to use that is 

inside the park boundary (150-foot 

zone), since most of the aquatic 

resources move freely in and out of 

these areas, except for direct impacts on 

submerged aquatic vegetation (SAV). In 

addition, SAV only occurs in one area 

that is proposed to be reopened to PWC 

use under alternative B. Marine 

mammals would also not be likely to 

use the area within 150-feet from shore 

because it is too shallow. It would be 


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difficult to differentiate impacts 

between PWC use and motorboat use 

because PWC use is very low compared 

to motorboat use, and motorboats use 

both areas inside and outside the 150- 

foot zone. 

27. One commenter suggested 

reducing the number of access points to 

those already developed. Specifically, 

eliminate the following four access 

points from the regulation: Milepost 

11B, Old Drum Inlet, New Drum Inlet, 

and Power Squadron Spit. 

NPS Response: The access points at 

Milepost 11B, Old Drum Inlet, and New 

Drum Inlet were chosen because they 

provide access to the seashore for those 

people that live in the ‘‘down east’’ area 

from Davis to Cedar Island. Without 

including these access points, there 

would be few opportunities for PWC 

access from towns north of Davis. These 

sandy inlets are convenient areas to 

land a boat or PWC and allow easy 

access to the ocean. The use of these 

areas also provides protection to the 

remaining marshy areas of the sound, 

where submerged aquatic vegetation is 

more likely to occur. 

Power Squadron Spit was included 

because it provides access to the 

southern-most portion of the park, 

which is a popular day-use area. This 

area near Lookout Bight consists of a 

protected sandy beach, and is heavily 

used by larger boats that utilize PWC or 

smaller inflatable boats to access the 

shore. 

Comments Regarding Water Quality 

28. One commenter stated that, 

because the EA has not properly 

accounted for the pace at which the 

PWC manufacturers are converting to 

cleaner-running engine technologies 

that meet the EPA standards, the EA 

overstates the potential water quality 

impacts of resuming PWC use. 

NPS Response: The assumption of all 

personal watercraft using 2-stroke 

engines in 2002 is recognized as 

conservative. It is protective of the 

environment yet follows the emission 

data available in California Air 

Resources Board (CARB) (1998) and 

Bluewater Network (2001) at the time of 

preparation of the EA. The emission rate 

of 3 gallons per hour at full throttle is 

a mid-point between 3 gallons in two 

hours (1.5 gallons per hour; NPS 1999) 

and 3.8 to 4.5 gallons per hour for an 

average 2000 model year personal 

watercraft (Bluewater Network 2001). 

The assumption also is reasonable in 

view of the initiation of production line 

testing in 2000 (EPA 1997) and expected 

full implementation of testing by 2006 

(EPA 1996). 

Reductions in emissions used in the 

water quality impact assessment are in 

accordance with the overall 

hydrocarbon emission reduction 

projections published by the EPA 

(1996). EPA (1996) estimates a 52% 

reduction by personal watercraft by 

2010 and a 68% reduction by 2015. The 

50% reduction in emissions by 2013 

(the future date used in the EA) is a 

conservative interpolation of the 

emission reduction percentages and 

associated years (2010 and 2015) 

reported by the EPA (1996) but with a 

one-year delay in production line 

testing (EPA 1997). 

Despite these conservative estimates, 

impacts to water quality from personal 

watercraft are judged to be negligible for 

all alternatives evaluated. Cumulative 

impacts from personal watercraft and 

other outboard motorboats also are 

expected to be negligible. If the 

assumptions used were less than 

conservative, the conclusions could not 

be considered protective of the 

environment, while still being within 

the range of expected use. 

29. One commenter stated that the 

EA’s analysis is based on faulty 

premises that reflect worst case 

conditions. 

NPS Response: The estimates of 

personal watercraft use and emissions 

are based on the best information 

available at the time of preparation of 

the EA and are meant to be conservative 

(i.e., protective of the environment). By 

using conservative input assumptions in 

estimating impact to water quality, the 

probability of underestimating impacts 

is minimized. 

The evaporation rate for benzene 

(half-life of approximately 5 hours at 

25 °C) is based on information presented 

in EPA (2001) and in Verschuren (1983). 

Because impacts to water quality were 

determined to be negligible before any 

discussion or application of this 

evaporation rate, it was not discussed in 

the impact assessments of the 

alternatives. 

As stated in Appendix A of the EA, 

the concentration of benzo(a)pyrene can 

be up to 2.8 mg/kg (or 2.07 mg/L) 

(Gustafson et al. 1997). Because this 

concentration could be found in the 

gasoline used in Cape Lookout, it was 

used to be protective of the 

environment. It is not an unrealistic 

assumption. Annual sales of personal 

watercraft (200,000 units) are mentioned 

on page 7 of the EA. However, the text 

directs the reader to table 1 which 

shows that ownership declined after 

1995. The discussion of national trends 

is not germane to the estimate of PWC 

use in the national seashore since the 

numbers of personal watercraft and 

hours of use are based on observations 

by park staff (see page 102 of the EA). 

In summary, if changes in evaporation 

rates, concentrations of gasoline 

constituents, sales of personal 

watercraft, and rates of replacement of 

older personal watercraft were made as 

suggested, the conclusions of negligible 

impacts from personal watercraft would 

not change, because ‘‘negligible’’ is the 

lowest impact level that can be used in 

the EA (see page 106). However, these 

conclusions would no longer be 

considered as conservative and could be 

challenged by other parties. 

30. One commenter believes the EA 

ignores sales trends and relies on 

outdated statistics and assumptions, 

which inflate PWC sales and exaggerate 

PWC emissions. 

NPS Response: Annual sales of 

personal watercraft (200,000 units) are 

mentioned on page 6 of the EA. 

However, the text directs the reader to 

table 1, which shows that ownership 

declined after 1995. The discussion of 

national trends is not germane to the 

estimate of PWC use in the national 

seashore since the numbers of personal 

watercraft and hours of use are based on 

observations by park staff (see page 102 

of the EA) and not national trends. 

If national sales of personal watercraft 

and rates of replacement of older 

personal watercraft were considered, the 

conclusions for impacts to water quality 

from personal watercraft would still be 

negligible. 

31. One commenter stated that most 

PWC manufacturers have changed to 4- 

cycle engines, which do not mix oil 

with the gasoline. 

NPS Response: The assumption of all 

PWC using 2-stroke engines in 2003 is 

recognized as conservative. It is 

protective of the environment and 

follows the emission data available in 

CARB (1998) and Bluewater Network 

(2001) at the time of preparation of the 

EA. Emission rates were assumed to be 

reduced by 8 percent in 2003 in 

accordance with the EPA’s estimate of 

hydrocarbon reduction (see page 104 of 

the EA). Despite these conservative 

estimates, impacts to water quality from 

PWC are judged to be negligible for all 

gasoline constituents, all areas, and all 

alternatives evaluated. 

32. One commenter stated that there 

is some confusion on irreversible or 

irretrievable commitments of resources 

should the proposed action be 

implemented. 

NPS Response: Agreed, there is 

confusion regarding the definitions of 

irreversible and irretrievable, but the 

confusion does not extend to the Cape 

Lookout EA. The National 

Environmental Policy Act (NEPA), 


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53026 Federal Register / Vol. 71, No. 174 / Friday, September 8, 2006 / Rules and Regulations 

Section 102(2)(C)(v), does not 

distinguish between the two terms but 

instead lumps them together: ‘‘Any 

irreversible and irretrievable 

commitments * * *’’ and many EAs 

and EISs also simply lump the two 

terms together. While the two terms in 

question are not defined in NEPA or in 

the National Park Service Director’s 

Order #12 (DO–12), they are defined in 

the National Park Service Handbook 

that accompanies DO–12 as follows: 

‘‘Irreversible impacts are those effects 

that cannot be changed over the long 

term or are permanent. An effect to a 

resource is irreversible if it (the 

resource) cannot be reclaimed, restored, 

or otherwise returned to its condition 

before the disturbance * * * An 

irretrievable commitment of resources 

refers to the effects to resources that, 

once gone, cannot be replaced.’’ It is 

important to not worry about the 

semantics of these terms and instead be 

thorough in the disclosure to the public 

of any long-term, permanent effects to 

the park resources. 

The significance of personal 

watercraft using fossil fuel at Cape 

Lookout National Seashore (as it may 

affect air and water quality) has not 

been underestimated. In fact, the 

potential for impacts on these resources 

is quantitatively evaluated in the EA. 

The results indicate that PWC impacts 

to water quality and to air quality are 

negligible or nonexistent for all 

alternatives considered. These impacts 

could be termed inconsequential, 

especially in the context of other 

motorboats that outnumber personal 

watercraft 10 to 1 at the national 

seashore (see Table 15 of the EA). 

33. One commenter stated that the 

water quality analysis does not fully 

account for the rapid rate that unburned 

gasoline emitted from PWC evaporates 

from the water. 

NPS Response: Impacts to human 

health and the environment would be 

negligible for all gasoline constituents, 

all alternatives, and all areas. The term 

‘‘negligible’’ is the lowest (least 

significant impact threshold) term 

available to describe impacts in the EA 

(see page 106). Because all impacts to 

water quality were judged to be 

negligible, the effect of evaporation was 

not discussed in detail in the results. 

However, the effect of evaporation/ 

volatilization of gasoline constituents is 

discussed in two locations under 

‘‘Methodology and Assumptions.’’

These processes are mentioned in 

paragraphs 5 and 7 on page 103 of the 

EA. Volatilization of gasoline 

constituents (BTEX, methyl tertiarybutyl ether (MTBE), and petroleum 

aromatic hydrocarbons (PAHs)) also is 

discussed in Appendix A: Approach to 

Evaluating Surface Water Quality 

Impacts. 

Comments Regarding Air Quality 

34. One commenter stated that NPS 

does not sufficiently account for the 

rapid engine conversion that is 

occurring and improperly overlooks the 

emissions reductions that the PWC 

companies have already achieved. 

NPS Response: A conservative 

approach was used in the analysis, since 

the numbers of PWCs already converted 

to four-stroke engines are not known. In 

addition, the EPA model takes into 

account the reduction in emissions over 

time. Even with the conservative 

approach, the analysis for alternative B 

presented in the EA indicates that 

current PWC use at Cape Lookout 

National Seashore results in negligible 

impacts to air quality. 

35. One commenter stated that, while 

the EA correctly concludes that the 

short- and long-term human health 

impact from PWC emissions of 

hydrocarbons (HC) and nitrogen oxides 

(NOX) under alternatives A and B would 

be negligible, NPS nevertheless 

overstates actual emissions levels for 

these constituents. 

NPS Response: It is agreed that the 

relative quantity of HC + NOX are a very 

small proportion of the county-based 

emissions and that this proportion will 

continue to be reduced over time. The 

EA takes this into consideration in the 

analysis. 

For consistency and conformity in 

approach, NPS has elected to rely on the 

assumptions in the 1996 Spark Ignition 

Engine Rule which is consistent with 

the widely used NONROAD emissions 

estimation model. The outcome is that 

estimated emissions from combusted 

fuel may be more conservative, 

compared to actual emissions. 

36. One commenter stated that the 

EA’s use of a study by Kado et al. is 

outdated, and the EA inaccurately uses 

the results of this study. 

NPS Response: The criteria for 

analysis of impacts from PWC to human 

health are based on the National 

Ambient Air Quality Standards 

(NAAQSs) for criteria pollutants, as 

established by the EPA under the Clean 

Air Act, and on criteria pollutant annual 

emission levels. This methodology was 

selected to assess air quality impacts for 

all NPS EAs to promote regional and 

national consistency, and identify areas 

of potential ambient standard 

exceedances. PAHs are not assessed 

specifically as they are not a criteria 

pollutant. However, they are indirectly 

included as a subset of total 

hydrocarbons, which are assessed 

because they are the focus of the EPA’s 

emissions standards directed at 

manufacturers of spark ignition marine 

gasoline engines. Neither peak exposure 

levels nor National Institute for 

Occupational Safety and Health 

(NIOSH) nor Occupational Safety and 

Health Administration (OSHA) 

standards are included as criteria for 

analyzing air quality related impacts 

except where short-term exposure is 

included in a NAAQS. 

The Kado Study presented the 

outboard engine air quality portion of a 

larger study described in Outboard 

Engine and Personal Watercraft 

Emissions to Air and Water: A 

Laboratory Study (CARB 2001). In the 

CARB report, results from both 

outboards and personal watercraft (2- 

stroke and 4-stroke) were reported. The 

general pattern of emissions to air and 

water shown in CARB (2001) was 2- 

stroke carbureted outboards and 

personal watercraft having the highest 

emissions, and 4-stroke outboard and 

personal watercraft having the lowest 

emissions. The only substantive 

exception to this pattern was in NOX

emissions to air- 2-stroke carbureted 

outboards and personal watercraft had 

the lowest NOX emissions, while the 4- 

stroke outboard had the highest 

emissions. Therefore, the pattern of 

emissions for outboards is generally 

applicable to personal watercraft and 

applicable to outboards directly under 

the cumulative impacts evaluations. 

37. One commenter stated that a 

proper PAH analysis, using the 

analytical approach set forth in the Lake 

Mead Report, refutes unsubstantiated 

claims by PWC opponents that PAH 

emissions from PWC operating in the 

Cape Lookout National Seashore will 

endanger human health. 

NPS Response: The EPA data 

incorporated into the 1996 Spark 

Ignition Marine Engine rule were used 

as the basis for the assessment of air 

quality, and not the Sierra Research 

data. It is agreed that these data show a 

greater rate of emissions reductions than 

the assumptions in the 1996 Rule and in 

the EPA NONROAD Model, which was 

used to estimate emissions. 

However, the level of detail included 

in the Sierra Research report has not 

been carried into the EA for reasons of 

consistency and conformance with the 

model predictions. Most states use the 

EPA NONROAD Model for estimating 

emissions from a broad array of mobile 

sources. To provide consistency with 

state programs and with the methods of 

analysis used for other similar NPS 

assessments, NPS has elected not to 

base its analysis on focused research 


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such as the Sierra Report for assessing 

PWC impacts. 

It is agreed that the relative quantity 

of HC + NOX are a very small proportion 

of the county-based emissions and that 

this proportion will continue to be 

reduced over time. The EA takes this 

into consideration in the analysis. For 

consistency and conformity in 

approach, the NPS has elected to rely on 

the assumptions in the 1996 Spark 

Ignition Marine Engine Rule, which are 

consistent with the widely used 

NONROAD emissions estimation model. 

The outcome is that estimated emissions 

from combusted fuel may be more 

conservative, compared to actual 

emissions. 

38. One commenter believes that the 

Sierra Research emissions analysis 

should be used in the air quality 

analysis. 

NPS Response: The EPA data 

incorporated into the 1996 Spark 

Ignition Marine Engine rule were used 

as the basis for the assessment of air 

quality, and not the Sierra Research 

data. It is agreed that the Sierra Research 

data show a greater rate of emissions 

reductions than the assumptions in the 

1996 Rule and in the EPA NONROAD 

Model, which NPS used to estimate 

emissions. However, the level of detail 

included in the Sierra Research report 

was not carried into the EA for reasons 

of consistency and conformance with 

the model predictions. Most states use 

the EPA NONROAD Model for 

estimating emissions from a broad array 

of mobile sources. To provide 

consistency with state programs and 

with the methods of analysis used for 

other similar NPS assessments, NPS has 

elected not to base its analysis on 

focused research such as the Sierra 

Report for assessing PWC impacts. 

It is agreed that the relative quantity 

of HC plus NOX are a very small 

proportion of the county-based 

emissions and that this proportion will 

continue to be reduced over time. The 

EA takes this into consideration in the 

analysis. For consistency and 

conformity in approach, NPS has 

elected to rely on the assumptions in the 

1996 Spark Ignition Marine Engine 

Rule, which are consistent with the 

widely used NONROAD emissions 

estimation model. The outcome is that 

estimated emissions from combusted 

fuel may be more conservative 

compared to actual emissions. 

Comments Regarding Soundscapes 

39. One commenter stated that in the 

2005 EA, NPS concludes that PWC 

operation would produce negligible to 

minor short-term impacts upon the 

park’s soundscape. NPS provides no 

new evidence for the EA’s latest noise 

conclusions, which directly contradicts 

the 2001 determination. 

NPS Response: In the 2005 EA 

impacts to the soundscape in the 

preferred alternative were evaluated 

using operational restrictions such as 

requiring PWC to travel at a flat wake 

speed and limiting access to specific 

locations. With these restrictions 

impacts were determined to be adverse, 

short term, negligible to minor, 

depending upon location. The 2001 

determination was made using 

unrestricted conditions that were in 

effect prior to the 2002 prohibition. 

40. One commenter stated that there 

is no evidence that PWC noise adversely 

affects aquatic fauna or animals. PWC 

typically exhaust above the water at the 

air/water transition area. Consequently, 

most PWC sound is transmitted through 

the air and not the water. 

NPS Response: PWC exhaust is below 

or at the air/water transition areas, not 

above the water. Sound transmitted 

through the water is not expected to 

have greater than negligible adverse 

impacts on fish, and the EA does not 

state that PWC noise adversely affects 

aquatic fauna. 

41. One commenter questioned the 

PWC noise levels that were used in the 

analysis. 

NPS Response: A correction has been 

included in the errata to the EA to 

indicate that one PWC would emit 68 to 

76 A-weighted dB at 82 feet. Based on 

the PWC noise levels from the Glen 

Canyon study, two PWC would emit 66 

to 77 dB at 82 feet, 65 to 75 dB at 100 

feet, and 59 to 69 dB at 200 feet. The 

noise levels of two PWC traveling 

together would be less than the NPS 

noise limit of 82 dB at 82 feet for all 

alternatives. Ambient sound levels at 

Cape Lookout National Seashore vary 

due to the wide range of land cover 

types and visitor and other activities 

within and near the national seashore. 

In addition to intensity, other aspects of 

PWC noise were assessed, including 

changes in pitch. The operation of PWC 

50 feet from shore traveling at a flat 

wake speed would have minor adverse 

affects on the soundscape. In most 

locations, except in high use areas, 

natural sounds would prevail and 

motorized noise would be very 

infrequent or absent. 

42. One commenter stated that the 

steps North Carolina has taken to limit 

boating noise will mitigate the potential 

impacts of PWC use on the park’s 

soundscapes. 

NPS Response: Comment noted. 

Impacts to soundscapes under 

alternative B are negligible to minor, 

depending on location. 

43. Several comments stated that the 

EA’s findings overstate the potential 

sound impacts of PWC use and do not 

include any documented complaint data 

about PWC noise. 

NPS Response: Comment noted. 

Impacts to soundscapes under 

alternative B are negligible to minor, 

depending on location. The EA states 

that the level of sound impact 

associated with PWC use varies based 

on location, time of day, and season. 

The EA also states that sound impacts 

associated with PWC use would be most 

prevalent in quieter areas. Analysis of 

potential impacts of PWC use relating to 

sound was based on best available data, 

input from park staff, and the results of 

analyses using that data. 

44. One commenter stated that the EA 

exaggerates PWC’s propensity to become 

airborne. 

NPS Response: NPS agrees that many 

PWC do not leave the water when being 

operated. When required to operate at 

flat wake speed in Cape Lookout 

National Seashore it is highly unlikely 

that any PWC will leave the water. 

Impacts to soundscapes from PWC 

under alternative B range from 

negligible to minor, depending on the 

location within the park. 

45. One commenter stated that the 

PWC manufacturers have made 

significant progress in reducing PWC 

noise through technological 

innovations. 

NPS Response: NPS concurs that ongoing and future improvements in 

engine technology and design would 

likely further reduce noise emitted from 

PWC. Even without the improvements 

the EA found impacts to soundscapes 

under alternative B are negligible to 

minor, depending on the location 

within the park. 

46. One commenter stated that state 

legislation entitled the ‘‘National Marine 

Manufacturers Association Model Noise 

Act’’ establishes muffler requirements 

and maximum noise levels for PWC and 

other motorized boats, so noise 

disturbances would be minimized. 

NPS Response: NPS concurs that ongoing and future improvements in 

engine technology and design would 

likely further reduce noise emitted from 

PWC. However, based on location and 

time, ambient noise levels at the 

national seashore can range from 

negligible to moderate and improved 

technology resulting in a reduction of 

noise emitted from PWC would not 

significantly change impact thresholds. 

Comments Regarding Shoreline and 

Submerged Aquatic Vegetation 

47. A commenter stated that because 

PWC lack an exposed propeller, they 


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can’t damage seagrasses in shallow 

waters. Furthermore, the natural forces 

at Cape Lookout have a greater impact 

on vegetation than PWC use. 

NPS Response: PWC do not have an 

exposed propeller but they do use an 

engine that directs a substantial amount 

of water towards the bottom at a high 

velocity. PWC can operate in waters less 

than a foot deep and have the potential 

of disturbing the sediment and 

submerged aquatic vegetation in 

shallow water areas. Disturbance of 

submerged aquatic vegetation beds 

diminishes their ecological value and 

productivity, affecting the entire 

ecosystem. As PWC are frequently 

operated in shallow areas in a repetitive 

manner, impacts on submerged aquatic 

vegetation beds can be severe. Natural 

forces may at times have a greater 

impact but the NPS allows such to occur 

without interference. 

48. A commenter stated that allowing 

PWC operators to access shallow areas 

near the Cape Lookout Environmental 

Education Center dock would greatly 

disturb the underwater substrate and 

shoreline. 

NPS Response: The 10 designated 

access areas, which include the area 

near the Cape Lookout Environmental 

Education Center dock, were chosen to 

avoid marshes and high-congestion 

beach areas. Indirect impacts from PWC 

use to shoreline vegetation would occur 

but would be limited to the designated 

access areas and would therefore be 

negligible to minor. Most of the access 

areas do not contain submerged aquatic 

vegetation beds, so PWC operation in 

these areas would have little potential to 

adversely impact this habitat. 

Additionally, the flat-wake speed 

restriction would minimize the 

potential for PWC to damage submerged 

aquatic vegetation beds through 

collision or uprooting and would reduce 

sediment resuspension and its 

detrimental effects. 

Comments Regarding Wildlife and 

Wildlife Habitat 

49. One commenter stated that there 

are no documented cases of deliberate 

harassment or collisions with wildlife 

by PWC users and there is no evidence 

that PWC use disturbs wildlife along the 

shoreline. 

NPS Response: There is a potential for 

collision with or disturbance of aquatic 

wildlife species. The determination of 

potential for impacts to wildlife 

associated with PWC use is based on the 

assessment of several potential stressors 

including potential collision; noise; 

disruption of feeding, nesting, and 

resting activities; sediment suspension; 

emissions, etc. The flat wake 

requirement will reduce the level of 

PWC disturbance in the restricted areas 

and in nearby marshes. This reduced 

speed level and the requirement to 

travel perpendicular to the shoreline in 

designated access areas is expected to 

have short-term, negligible to minor, 

direct and indirect adverse impacts on 

aquatic wildlife species and habitat. 

50. One commenter stated that the EA 

cites only anecdotal accounts, in which 

park staff supposedly observed PWC 

flushing terns and other bird species, as 

support for its position that PWC use is 

more disruptive to wildlife than other 

vessels. 

NPS Response: The scope of the EA 

did not include the conduct of sitespecific studies regarding potential 

effects of PWC use on wildlife species 

at Cape Lookout National Seashore. 

Analysis of potential impacts of PWC 

use on wildlife at the national seashore 

was based on best available data, input 

from park staff, and the results of 

analysis using that data. The EA does 

not state that shorebirds were observed 

being flushed from nests in the park. 

51. A commenter believes that PWC 

are no more disruptive than other forms 

of boating activity. Studies by Dr. James 

Rodgers of the Florida Fish and Wildlife 

Conservation Commission have shown 

that PWC are no more likely to disturb 

wildlife than any other form of human 

interaction. 

NPS Response: Some research 

indicates that PWC are no more apt to 

disturb wildlife than are small outboard 

motorboats; however, disturbance from 

both PWC and outboard motor boats 

does occur. Dr. Rodgers recommends 

that buffer zones be established for all 

watercraft, creating minimum distances 

between boats (personal watercraft and 

outboard motorboats) and nesting and 

foraging waterbirds. The shoreline 

restrictions limit access for PWC to 10 

locations under alternative B and 

require them to operate at a flat wake 

speed as an added precaution. Impacts 

to wildlife and wildlife habitat under all 

the alternatives were judged to be 

negligible to minor from all visitor 

activities. 

52. One commenter believes the 

Everglades Report has been wrongly 

used in the wildlife analysis. 

NPS Response: The reference to the 

Everglades Report at page iii of the EA 

provides background regarding past 

actions taken by NPS with respect to 

PWC use. The EA states that ‘‘After 

studies in Everglades National Park 

showed that PWC use resulted in 

damage to vegetation, adversely 

impacted shorebirds, and disturbed the 

life cycles of other wildlife, NPS 

prohibited PWC use by a special 

regulation at the park in 1994.’’ This EA 

did not rely on the Everglades Report as 

a basis for assessing potential impacts to 

park resources associated with PWC 

use. 

53. One commenter stated that the EA 

puts forth a conflicting position on the 

adequacy of new regulations to protect 

the park environment and wildlife, as 

well as the resources available to 

adequately enforce the NPS’ new rules. 

NPS Response: The NPS agrees that a 

total prohibition would be easier to 

enforce. However, enforcement would 

also be required under the no-action 

alternative. The seashore is fully aware 

that this new regulation will require 

short-term changes and reallocations of 

assets and resources, with an increase in 

education and enforcement. However, 

this effort will generally need to be 

focused at popular boating use areas 

that are already the focus of 

enforcement activity. Enforcement of 

the April 22, 2002, prohibition of PWC 

required an increased focus on 

education and PWC enforcement during 

routine patrols at a limited number of 

popular use areas. This education and 

enforcement effort became successful in 

about two boating seasons. 

The majority of seashore users are law 

abiding and sensitive to the special 

values of seashore waters and lands. An 

active education program backed by a 

reasonable enforcement effort should, in 

a few seasons, educate the PWC user to 

the requirements of the new regulation. 

After an initial period of adjustment to 

the new regulations, the small number 

of PWC users who encounter seashore 

waters should be knowledgeable enough 

to abide by the law, and the initial need 

for focused attention on PWC operators 

will diminish. Additional water 

presence by park rangers and education 

are proven methods of protecting 

resources for the future enjoyment of all 

visitors, with the end result of 

enhancing the visitor experience. 

54. One commenter stated that the EA 

reaches a different conclusion regarding 

the appropriateness of PWC, compared 

to the 2001 determination. 

NPS Response: Due to an increased 

level of public comment, Cape Lookout 

reanalyzed the issues and impact topics 

described in the 2001 Determination in 

more detail in the EA. The 2001 

Determination can be viewed at: http:// 

www.nps.gov/calo/parkplan.htm. The 

results of the in-depth analysis in the 

EA indicated that alternative B, which 

provided for limited access at flat wake 

speeds, would create acceptable impacts 

that ranged from negligible to moderate 

for all impact topics. Alternative B was 

chosen as the preferred alternative. 


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55. One commenter stated that the 

preferred alternative violates the Marine 

Mammal Protection Act (MMPA), which 

requires Federal agencies to prevent the 

‘‘take’’ of marine mammals. Slow 

moving boats, even ones operating at 

flat wake speed, can violate the MMPA 

prohibition on harassment. 

NPS Response: The EA states that 

implementing the preferred alternative 

would be expected to have short-term, 

negligible to minor, direct and indirect 

impacts to aquatic wildlife and habitats. 

The EA states that flat wake zoning 

prescriptions and the implementation of 

ten designated access areas would 

minimize potential for adverse impacts. 

56. One commenter stated that the EA 

fails to adequately investigate the 

impact of the current PWC ban on 

biological migration patterns. 

NPS Response: The scope of the EA 

did not include the conduct of surveys 

to determine potential effects of the 

current PWC ban on biological use 

patterns in Cape Lookout National 

Seashore. Analysis of potential impacts 

of PWC use on wildlife at the national 

seashore was based on best available 

data, input from park staff, and the 

results of analysis using that data. 

Comments Regarding Visitor Use and 

Experience 

57. One commenter stated that the EA 

overlooks the impact of reauthorizing 

PWC operation and its impact upon 

visitor use patterns. NPS should have 

conducted a visitor use survey over the 

past two years to measure public 

support for the current PWC closures. 

NPS Response: The comment is 

correct in stating that no new visitor use 

surveys have been conducted since 

1993. However, NPS received over 6,000 

letters and emails on the issue since the 

initial PWC closure in March 2001. To 

suggest the seashore is not current on 

the opinions of the public on PWC is 

not an accurate statement concerning 

the NEPA and rulemaking process. 

58. One commenter stated that the 

national accident figures cited in the 

document are dated and potentially 

misleading. 

NPS Response: The factors described 

in the comment are recognized. 

However, these factors are unlikely to 

fully explain the large difference in 

percentages (personal watercraft are 

only 7.5% of registered vessels, yet they 

are involved in 36% of reported 

accidents). In other words, PWC are 5 

times more likely to have a reportable 

accident than are other boats. Despite 

these national boating accident 

statistics, impacts of PWC use and 

visitor conflicts are judged to be 

negligible relative to swimmers and 

minor relative to other motorboats at the 

national seashore. 

59. One commenter stated that the EA 

cites North Carolina state and county 

accident data instead of park-specific 

data. Furthermore, PWC users comprise 

only 1% of the total number of visitors 

to Cape Lookout National Seashore; 

therefore the number of PWC in the park 

will be relatively small and will not 

create unique or disproportionate safety 

risks. 

NPS Response: Although only one 

PWC-related injury has been reported at 

Cape Lookout, much of the waters in the 

area are outside of park boundaries and 

many incidents are likely not reported 

to any agency. PWC speeds, wakes, and 

operations near other users can pose 

hazards and conflicts, especially to 

canoeists and sea kayakers. As stated in 

the EA, PWC have historically operated 

for longer periods of time in the heavily 

used areas of the park, including the 

soundside of Shackleford Banks and the 

cove at the Cape Lookout lighthouse, 

increasing the opportunities for 

conflicts or accidents. Limiting PWC use 

in these areas, coupled with flat wake 

speed requirements, would reduce 

conflicts between PWC and other users. 

60. One commenter stated that by 

restricting PWC use to ten designated 

areas, alternative B concentrates PWC 

use in several popular areas of the park, 

which increases the likelihood of 

potential conflict with other visitors. 

Alternative B’s restrictions do not apply 

to other motorized vessels. The PWConly flat wake zone will create serious 

safety hazards for PWC users, and 

should be extended to all motorized 

craft within park waters. 

NPS Response: The 10 designated 

access areas were chosen to avoid 

marshes and high-congestion beach 

areas. Implementation of a flat wake 

zone will reduce potential impacts 

associated with high speed use in near 

shore areas, as compared to use without 

the speed restriction. When vessels, 

other than PWC, enter park waters, 

which extend into the sound 150 feet, 

they normally operate at reduced speeds 

as they prepare to anchor or dock, so 

they are traveling at speeds similar to 

those required for PWCs. Vessels 

maneuvering in congested waters are 

generally safer at slower speeds. 

61. Commenters are concerned with 

the assumption that PWC will not 

adversely impact public safety and that 

a majority of PWC users operate their 

craft in a lawful manner. However, in 

2001 the NPS reported that PWC use 

‘‘pose[d] unacceptable risks’’ to the 

safety of other visitors. 

NPS Response: Due to an increased 

level of public comment, Cape Lookout 

reanalyzed the issues and impact topics 

described in the 2001 Determination in 

more detail in the EA. The 2001 

Determination can be viewed at: http:// 

www.nps.gov/calo/parkplan.htm. The 

results of the in-depth analysis in the 

EA indicated that alternative B, which 

provided for limited access at flat wake 

speeds would create acceptable impacts 

that ranged from negligible to moderate 

for all impact topics. Alternative B was 

chosen as the preferred alternative. 

Alternative B also provides more 

enforcement and education for PWC 

users. 

62. A commenter stated that 

documented visitor satisfaction when 

PWC use was permitted was rated very 

good to excellent. Furthermore, today’s 

PWC owner typically uses the craft for 

family-oriented outings. 

NPS Response: NPS agrees that some 

PWC operators are better educated and 

are not reckless with their machines, 

and that many trips are family-oriented. 

However, PWC use does vary, and many 

operators still use the machines for 

‘‘thrill,’’ including stunts, wake 

jumping, and other more risky exercises. 

Some users can still create disturbances 

or safety concerns, especially if children 

are operating the vessel. Under 

alternative B, NPS is providing access to 

the park so that PWC users can enjoy 

Cape Lookout National Seashore 

beaches and other natural or cultural 

resources, but is restricting the use of 

PWCs in park waters to prohibit the 

wave jumping and other similar 

behavior. 

63. Several commenters stated that 

alternative B is inconsistent with NPS’

goal of avoiding the creation of 

additional enforcement requirements, 

and that there are not enough 

enforcement officials to keep PWC 

violations in check. 

NPS Response: Both the no-action 

alternative and alternative B requires 

enforcement action. Cape Lookout 

National Seashore is fully aware that 

this new regulation will require shortterm changes and reallocations of assets 

and resources, with an increase in 

education and enforcement. However, 

this effort will need to focus on popular 

boating use areas that are already the 

focus of enforcement activity. 

Enforcement of the April 22, 2002, ban 

of PWC at Cape Lookout National 

Seashore required increased focus on 

education and PWC enforcement during 

routine patrols at a limited number of 

popular use areas. This education and 

enforcement effort was successful in 

two boating seasons. 

The majority of national seashore 

users are law abiding and sensitive to 

the special values of seashore waters 


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53030 Federal Register / Vol. 71, No. 174 / Friday, September 8, 2006 / Rules and Regulations 

and lands. An active education program 

backed by a reasonable enforcement 

effort should, in a few seasons, educate 

the PWC user to the requirements of the 

new regulation. After an initial period of 

adjustment to the new regulations, the 

small number of PWC users who 

encounter national seashore waters 

should be knowledgeable enough to 

abide by the law, and the initial need for 

focused attention on PWC operators will 

diminish. Additional water presence 

and education are proven methods of 

protecting resources for the future 

enjoyment of all visitors, with the end 

result of enhancing the visitor 

experience. 

Comments Regarding Visitor Conflict 

and Safety 

64. One commenter stated that the EA 

reaches many conclusions regarding the 

impact of PWC upon Cape Lookout 

resources and wildlife that are directly 

contradicted by the 2001 determination 

and previous NPS testimony. 

NPS Response: Due to the increased 

level of public comment and 

congressional interest, Cape Lookout 

National Seashore reanalyzed the issues 

and impact topics described in the 2001 

Determination in more detail in the EA. 

The 2001 Determination can be viewed 

at: http://www.nps.gov/calo/ 

parkplan.htm. In the 2001 

determination PWC use was evaluated 

without any operational or access 

restrictions and therefore the reports 

differ in results. The results of the indepth analysis in the EA indicated that 

impacts under alternative B range from 

negligible to moderate for all impact 

topics, and the NPS chose alternative B 

as the preferred alternative. Under 

alternative B, PWC would only be 

allowed in ten areas of the park in order 

to facilitate PWC access to certain 

sections of Shackleford Banks, South 

Core Banks, and North Core Banks. PWC 

must remain perpendicular to the shore 

and operate at flat wake speed, which 

would limit safety and noise issues from 

PWC. 

65. Commenters have concerns about 

PWC operators following too closely 

and riding too close to the shoreline, 

both of which put people at risk for 

serious injury. 

NPS Response: In the preferred 

alternative, PWC will only be allowed in 

the ten areas within the park 

specifically for landing purposes. PWC 

must remain perpendicular to shore and 

operate at flat wake speed. These 

restrictions would reduce the potential 

for conflicts with other vessels. 

66. One commenter believes that the 

proposed rule caters to a minority of 

PWC users at the expense of the 

majority of the park visitors who favor 

a PWC ban. 

NPS Response: The proposed rule 

would support visitor enjoyment by 

allowing limited access by PWC users 

while accommodating other visitors and 

meeting resource management 

objectives. 

Comments Regarding Cultural 

Resources 

67. One commenter stated that the EA 

overstates PWC’s potential impact on 

cultural resources. 

NPS Response: The EA was focused 

on the analysis of impacts from PWC 

use. PWC can make it easier to reach 

some remote areas, compared to hiking 

to these areas, but the NPS agrees that 

the type of impacts to cultural resources 

from any users of remote areas of the 

park would be similar if they can reach 

these areas. 

Comments Regarding Socioeconomics 

68. One commenter stated that the EA 

does not investigate the economic 

impact that lifting the PWC ban would 

have upon businesses that are 

dependent upon the conservation of 

wildlife and their habitat. 

NPS Response: Page 170 of the EA 

states that the primary group that would 

incur costs under the preferred 

alternative is park visitors who do not 

use PWC and whose experiences would 

be negatively affected by PWC within 

the park. However, because PWC users 

account for a very small fraction of 

economic activity in the region, it is 

very unlikely that there will be any 

measurable incremental impacts on the 

region’s economy. Continued PWC use 

within the park under the preferred 

alternative would have short-term, 

minor adverse impacts on wildlife 

species and their habitats, and is 

unlikely to impact the conservation of 

wildlife in and near the park. 

69. One commenter stated that the 

proposed rule fails to mention the 

economic impacts on the PWC-related 

businesses in the area. The comment 

also mentions a recently published 

economic study that discusses the 

economic impact of banning PWC in 

Cape Lookout National Seashore. 

NPS Response: NPS reviewed the 

Trade Partnership study, which 

concludes that PWC sales grew steadily 

through 1995, and have declined 

dramatically since then. The study 

blames this decline in sales on the PWC 

bans at National Parks. While the PWC 

ban at some National Park units may 

have contributed slightly to decline in 

PWC sales, NPS disagrees with the 

study’s conclusion that the ban is the 

primary reason for the decline in sales. 

PWC use occurred in only 32 of the 87 

park units that allow motorized boating. 

These 32 park units comprise a very 

small percentage of the total amount of 

waterways in the United States that can 

accommodate PWC. A decline in PWC 

sales can be attributed to many other 

reasons, including economic reasons, 

perceptions about the machines, and 

limitations by other public entities. In 

fact, at least 34 states have either 

implemented use restrictions or 

considered regulating PWC use and 

operation. 

The economic analysis report quoted 

in the comment (Economic Analysis of 

Management Alternatives for Personal 

Watercraft in Cape Lookout National 

Seashore, MACTEC Engineering 2005) 

concludes that the proposed rule is not 

expected to reduce any of the local 

area’s PWC-related businesses’ profit 

margins or reduce the competitiveness 

of PWC rental and retail businesses. The 

report also concludes that small 

increases in revenue are projected under 

the proposed rule, relative to the noaction alternative, for firms selling and 

renting PWCs to Cape Lookout visitors. 

Changes to the Final Rule 

Several non-substantive changes have 

been made to the rule language in 

response to comments on the NPRM. 

First, the rule was rewritten to clarify 

the type of PWC use prohibited and 

locations within the national seashore 

where it is permitted. In addition, the 

phrase ‘‘recreational use’’ has been 

deleted. Also, the text in the rule has 

been clarified to state that the 

restrictions will be imposed on the PWC 

operator, not the PWC equipment. 

Organization of the rule has also been 

improved. See the discussion above 

under Comment Numbers 14 and 21. 

Compliance With Other Laws 

Regulatory Planning and Review 

(Executive Order 12866) 

This document is not a significant 

rule and has not been reviewed by the 

Office of Management and Budget under 

Executive Order 12866. 

(1) This rule will not have an effect of 

$100 million or more on the economy. 

It will not adversely affect in a material 

way the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities. 

The NPS has completed the report 

‘‘Economic Analysis of Management 

Alternatives for Personal Watercraft in 

Cape Lookout National Seashore’’

(MACTEC Engineering, December 2005). 

This document may be viewed on the 


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park’s Web site at: http://www.nps.gov/ 

calo/parkplan.htm. 

(2) This rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. Actions taken under 

this rule will not interfere with other 

agencies or local government plans, 

policies or controls. This rule is an 

agency specific rule. 

(3) This rule does not alter the 

budgetary effects of entitlements, grants, 

user fees, or loan programs or the rights 

or obligations of their recipients. This 

rule will have no effects on 

entitlements, grants, user fees, or loan 

programs or the rights or obligations of 

their recipients. No grants or other 

forms of monetary supplements are 

involved. 

(4) This rule does not raise novel legal 

or policy issues. This rule is one of the 

special regulations being issued for 

managing PWC use in National Park 

Units. The NPS published general 

regulations (36 CFR 3.24) in March 

2000, requiring individual park areas to 

adopt special regulations to authorize 

PWC use. The implementation of the 

requirement of the general regulation 

continues to generate interest and 

discussion from the public concerning 

the overall effect of authorizing PWC 

use and NPS policy and park 

management. 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rulemaking will not 

have a significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). This certification is 

based on a report entitled ‘‘Economic 

Analysis of Management Alternatives 

for Personal Watercraft in Cape Lookout 

National Seashore’’ (MACTEC 

Engineering, December 2005). This 

document may be viewed on the park’s 

Web site at: http://www.nps.gov/calo/ 

parkplan.htm. 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This final rule: 

a. Does not have an annual effect on 

the economy of $100 million or more. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local or tribal 

governments or the private sector. This 

rule is an agency specific rule and does 

not impose any other requirements on 

other agencies, governments, or the 

private sector. 

Takings (Executive Order 12630) 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. A taking 

implication assessment is not required. 

No taking of personal property will 

occur as a result of this rule. 

Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

This final rule only affects use of NPS 

administered lands and waters. It has no 

outside effects on other areas by 

allowing PWC use in specific areas of 

the park. 

Civil Justice Reform (Executive Order 

12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

Paperwork Reduction Act 

This regulation does not require an 

information collection from 10 or more 

parties and a submission under the 

Paperwork Reduction Act is not 

required. An OMB Form 83–I is not 

required. 

National Environmental Policy Act 

The NPS analyzed this rule in 

accordance with the criteria of the 

National Environmental Policy Act and 

prepared an EA. The EA was available 

for public review and comment from 

January 24, 2005, to February 24, 2005. 

A Finding of No Significant Impact 

(FONSI) was signed on July 7, 2006. 

These documents are available at http:// 

www.nps.gov/calo/parkplan.htm or may 

be requested by telephoning (252) 728–

2250. Mail inquiries should be directed 

to park headquarters: Cape Lookout 

National Seashore, 131 Charles Street, 

Harkers Island, NC 28531. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government to Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951) and 512 

DM 2, we have evaluated potential 

effects on federally recognized Indian 

tribes and have determined that there 

are no potential effects. 

Administrative Procedure Act 

This rule allows use of PWC in Cape 

Lookout National Seashore under 

specified conditions. Because current 

regulations do not allow use of PWC at 

all, this rule relieves a restriction on the 

public. For this reason, and because 

NPS wishes to allow the public to take 

advantage of the new rules as soon as 

possible, this final rule is effective upon 

publication in the Federal Register, as 

allowed by the Administrative 

Procedure Act at 5 U.S.C. 553(d)(1). 

The proposed rule was published in 

the Federal Register (70 FR 77089) on 

December 29, 2005, with a 60-day 

period for notice and comment 

consistent with the requirements of 5 

U.S.C. 553(b). 

List of Subjects in 36 CFR Part 7 

National Parks, Reporting and 

recordkeeping requirements. 

■ In consideration of the foregoing, the 

NPS amends 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. Add new § 7.49 to read as follows: 

§ 7.49 Cape Lookout National Seashore. 

(a) Personal watercraft (PWC) may be 

operated within Cape Lookout National 

Seashore only under the following 

conditions: 

(1) PWC must be operated at flat-wake 

speed; 

(2) PWC must travel perpendicular to 

shore; 

(3) PWC may only be operated within 

the seashore to access the following 

sound side special use areas: 

(i) North Core Banks: 


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53032 Federal Register / Vol. 71, No. 174 / Friday, September 8, 2006 / Rules and Regulations 

Access Location 

(A) Ocracoke Inlet ............................................... Wallace Channel dock to the demarcation line in Ocracoke Inlet near Milepost 1. 

(B) Milepost 11B ................................................. Existing sound-side dock at mile post 11B approximately 4 miles north of Long Point. 

(C) Long Point .................................................... Ferry landing at the Long Point Cabin area. 

(D) Old Drum Inlet .............................................. Sound-side beach near Milepost 19 (as designated by signs), approximately 1⁄2 mile north of 

Old Drum inlet (adjacent to the cross-over route) encompassing approximately 50 feet. 

(ii) South Core Banks: 

Access Location 

(A) New Drum Inlet ............................................. Sound-side beach near Milepost 23 (as designated by signs), approximately 1⁄4 mile long, beginning approximately 1⁄2 mile south of New Drum Inlet. 

(B) Great Island Access ..................................... Carly Dock at Great Island Camp, near Milepost 30 (noted as Island South Core Banks-Great 

Island on map). 

(iii) Cape Lookout: 

Access Location 

(A) Lighthouse Area North .................................. A zone 300 feet north of the NPS dock at the lighthouse ferry dock near Milepost 41. 

(B) Lighthouse Area South ................................. Sound-side beach 100 feet south of the ‘‘summer kitchen’’ to 200 feet north of the Cape Lookout Environmental Education Center Dock. 

(C) Power Squadron Spit ................................... Sound-side beach at Power Squadron Spit across from rock jetty to end of the spit. 

(iv) Shackleford Banks: 

Access Location 

(A) West End Access ......................................... Sound-side beach from Whale Creek west to Beaufort Inlet, except the area between the 

Wade Shores toilet facility and the passenger ferry dock. 

(b) The Superintendent may 

temporarily limit, restrict or terminate 

access to the areas designated for PWC 

use after taking into consideration 

public health and safety, natural and 

cultural resource protection, and other 

management activities and objectives. 

Dated: August 25, 2006. 

David M. Verhey, 

Acting Assistant Secretary, Fish and Wildlife 

and Parks. 

[FR Doc. 06–7502 Filed 9–7–06; 8:45 am] 

BILLING CODE 4310–XR–P 

DEPARTMENT OF LABOR 

Office of Federal Contract Compliance 

Programs 

41 CFR Part 60–2 

RIN 1215–AB53 

Affirmative Action and 

Nondiscrimination Obligations of 

Contractors and Subcontractors; 

Equal Opportunity Survey 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Final rule. 

SUMMARY: The Office of Federal Contract 

Compliance Programs (OFCCP) is 

publishing a final rule rescinding the 

Equal Opportunity Survey (EO Survey) 

requirement in order to more effectively 

focus enforcement resources and 

eliminate a regulatory requirement that 

fails to provide value to either OFCCP 

enforcement or contractor compliance. 

This rule allows OFCCP to better direct 

its resources for the benefit of victims of 

discrimination, the government, 

contractors, and taxpayers. 

DATES: Effective Date: September 8, 

2006. 

FOR FURTHER INFORMATION CONTACT: 

Director, Division of Policy, Planning, 

and Program Development, Office of 

Federal Contract Compliance Programs, 

200 Constitution Avenue, NW., Room 

N3422, Washington, DC 20210. 

Telephone: (202) 693–0102 (voice) or 

(202) 693–1337 (TTY). 

SUPPLEMENTARY INFORMATION: 

I. Background 

On January 20, 2006, OFCCP 

published a Notice of Proposed 

Rulemaking (NPRM), proposing to 

rescind a rule requiring designated 

nonconstruction contractors to prepare 

and file an EO Survey with OFCCP. 71 

FR 3374. Created in 2000, the EO 

Survey was intended to further the goals 

of Executive Order 11246, as amended. 

The Executive Order requires that 

Federal Government contractors and 

subcontractors ‘‘take affirmative action 

to ensure that applicants are employed, 

and that employees are treated during 

employment, without regard to their 

race, color, religion, sex, or national 

origin.’’ Section 202(1). Affirmative 

action under the Executive Order means 

more than passive nondiscrimination; it 

requires that contractors take affirmative 

steps to identify and eliminate 

impediments to equal employment 

opportunity. The affirmative steps 

include numerous recordkeeping 

obligations designed to assist the 

contractor, in the first instance, and also 

OFCCP in monitoring the contractor’s 

employment practices. 

The EO Survey contains information 

about personnel activities, 

compensation and tenure data, and 

certain information about the 

contractor’s affirmative action program. 

OFCCP recordkeeping rules require 

contractors to maintain information 

necessary to complete the EO Survey, 

although not in the format called for by 

the survey instrument. See 65 FR 26100 


rwilkins on PROD1PC63 with RULES