[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Proposed Rules]
[Pages 19945-19952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9981]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 970626156-9077-02]
RIN No. 0648-AK01


Regulation of the Operation of Motorized Personal Watercraft in 
the Gulf of the Farallones National Marine Sanctuary

AGENCY: Marine Sancturaries Division (MSD), Office of Ocean and Coastal 
Resource Management (OCRM), National Ocean Service (NOS), National 
Oceanic and Atmospheric Administration (NOAA), Department of Commerce 
(DOC).

ACTION: Proposed rule.

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SUMMARY: The National Oceanic and Atmospheric Administration proposes 
to amend the regulations governing the Gulf of the Farallones National 
Marine Sanctuary (GFNMS or Sanctuary) to prohibit the operation of 
motorized personal watercraft (MPWC) in the nearshore waters of the 
Sanctuary. Specifically, the operation of MPWC would be prohibited from 
the mean high-tide line seaward to 1,000 yards

[[Page 19946]]

(approximately 0.5 nautical mile), including seaward of the Farallon 
Islands. This proposed action responds to a petition from the 
Environmental Action Committee of West Marin, California, to ban 
operation of MPWC in the Sanctuary. This document also responds to 
comments received in response to a Notice of Inquiry/Request for 
Information that NOAA published on August 21, 1997, to obtain 
additional information on the operation and impacts of MPWC. The 
proposed rule would ensure that Sanctuary resources and qualities are 
not adversely impacted and would help avoid conflicts among various 
users of the Sanctuary.
    A Draft Environmental Assessment (DEA) has been drafted on the 
proposed rule and is available for comment. The DEA may be obtained 
from the address below.

DATES: Comments on the proposed rule or DEA must be received by May 24, 
1999. A public hearing on this proposed rule will be held at a time and 
location to be published in a separate document.

ADDRESSES: Comments should be sent to Ed Ueber, Sanctuary Manger, Gulf 
of the Farallones National Marine Sanctuary, Ft. Mason, Building 201, 
San Francisco, California 94123; fax: (415) 561-6616; email: 
[email protected]. Comments received will be available for public 
inspection at the above address.

FOR FURTHER INFORMATION CONTACT: Ed Ueber at (415) 561-6622.

SUPPLEMENTARY INFORMATION:

I. Background

    In recognition of the national significance of the unique marine 
environment of the Gulf of the Farallones, California, the GFNMS was 
designated in January 1981. Final regulations became effective April 5, 
1981, and March 30, 1982. The GFNMS regulations at 15 CFR part 922, 
Subpart H prohibit a relatively narrow range of activities to protect 
Sanctuary resources and qualities.
    On April 18, 1996, the Environmental Action Committee (EAC) of West 
Marin, California, petitioned the GFNMS to ban the use of MPWC in the 
Sanctuary. Operation of MPWC are currently not regulated by the 
Sanctuary. The EAC identified a number of concerns regarding the use of 
MPWC within the Sanctuary. In its petition, the EAC asserted that: MPWC 
are completely incompatible with the existence of a marine sanctuary; 
pose a danger to the biological resources of the sanctuary, such as 
marine mammals, wildfowl, kelp beds, anadromous fish, and other marine 
life; create noise, water and air pollution; and threaten mariculture 
and other commerce throughout the Sanctuary. The EAC also stated that 
MPWC create a hazard for other Sanctuary users, including swimmers, 
sailboats, windsurfers, open-water rowing shells and kayaks. NOAA also 
received 195 letters from members of the public in response to media 
publicity about the petition. Sixty-four percent opposed regulation of 
MPWC; 33 percent supported the ban; one percent expressed no clear 
opinion.
    To supplement existing information on the use and impacts of MPWC, 
NOAA published a Notice of Inquiry/Request for Information in the 
Federal Register on August 21, 1997, initiating a 45-day comment period 
that ended October 6, 1997. NOAA requested information on the 
following: (1) The number of motorized personal watercraft being 
operated in the Sanctuary; (2) possible future trends in such numbers; 
(3) the customary launching areas for motorized personal watercraft in 
or near the Sanctuary; (4) the areas of use of motorized personal 
watercraft activity in the Sanctuary, including areas of concentrated 
use; (5) the periods (e.g., time of year, day) of use of motorized 
personal watercraft in the Sanctuary, including periods of high 
incidence of use; (6) studies or technical articles concerning the 
impacts of motorized personal watercraft on marine resources and other 
users; (7) first person or documented accounts of impacts of motorized 
personal watercraft on marine resources and other users; and (8) any 
other information or other comments that may be pertinent to this 
issues. NOAA received 160 public comments in response to the notice of 
inquiry and two signature petitions during the comment period. One 
hundred fifty-three (96 percent) supported banning the operation of 
MPWC within the GFNMS. Two signature petitions were also received; one, 
with 276 signatures, supported the ban; the second, with 41 signatures, 
opposed the ban. Forty-four people spoke at a public meeting held to 
gather information during the comment period, all but one of whom 
supported the petition. Half of the speakers at the public meeting had 
previously submitted written comments.
    Responses to and investigation of the specific questions in the 
notice revealed that: (1) The number of MPWC currently being operated 
in Sanctuary waters is believed by the proprietors of Lawson's Landing, 
the primary MPWP launch site in Sanctuary waters, to be less than 200 
launches per year by approximately 20 users; (2) the use of MPWC in 
Sanctuary waters is believed to be increasing; (3) there are two 
established MPWC launch sites in the Sanctuary, at Bodega Harbor and 
Lawson's Landing; (4) the areas in the Sanctuary where MPWC are 
operated are in the vicinity of the mouth of Tomales Bay and the area 
outside Bodega Harbor. Over 95 percent of MPWC operation that occurs in 
the Sanctuary occurs in these areas; (5) April through November appear 
to be the times of highest use of MPWC in Sanctuary waters; (6, 7, 9) 
numerous studies, technical articles, and personal documentation such 
as photos, letters and logs of the impacts of MPWC on marine resources 
and other users were received and collected.
    The following have been identified throughout NOAA's review of this 
issue: (1) Water-based recreational activity is increasing in the 
United States; (2) water-based recreational activity has impacted 
coastal habitats, seabirds, marine mammals and fish; (3) operation of 
MPWC is a relatively new and increasingly popular water sport; (4) 
MPWC, are different from other types of motorized watercraft in their 
structure (smaller size, shallower draft, two-stroke engine, and 
exhaust venting to water as opposed to air) and their operational 
impacts (operated at faster speeds, operated closer to shore, make 
quicker turns, stay in a limited area, tend to operate in groups, and 
have more unpredictable movements); (5) MPWC have been operated in such 
a manner as to create a safety hazard to other resource users in the 
vicinity; (6) MPWC may interfere with marine commercial uses; (7) MPWC 
have disturbed natural quiet and aesthetic appreciation; (8) MPWC have 
interfered with other marine recreational uses; (9) MPWC have impacted 
coastal and marine habitats; (10) MPWC have disturbed waterfowl and 
seabirds; (11) MPWC have disturbed and marine mammals; (12) MPWC may 
disturb fish; (13) Other jurisdictions have had problems with MPWC and 
have proposed and implemented various means of attempting to solve the 
problems; (14) the Sanctuary has sensitive areas that were deemed 
worthy of protection by the designation of a National Marine Sanctuary, 
including five State designated Areas of Special Biological 
Significance and four semi-enclosed estuarine areas; (15) MPWC present 
a present and potential threat to resources and users of the GFNMS.
    The waters of the Sanctuary are home to rich biological diversity. 
The importance and uniqueness of Sanctuary waters has been 
internationally recognized by the incorporation of Sanctuary waters in 
the Golden Gate International Biosphere Reserve, and the designation of 
Bolinas

[[Page 19947]]

Lagoon as a RAMSAR (the Convention for Wetlands of International 
Significance) site. The Sanctuary provides habitat for hundreds of 
species of birds, marine mammals, pinnipeds, otters, sea turtles, and 
marine fauna and algae.
    Among the hundreds of bird species that reside in or migrate 
through the Sanctuary, many are endangered, threatened or of special 
concern. These include the following species \1\, which are found in 
the nearshore waters of the Sanctuary and the Farallon Islands:
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    \1\ Bird classifications from Peterson, R.T. 1990. A field guide 
to western birds. Houghton Mifflin Company.

 
     [Key: FE=Federally listed as endangered; FT=Federally listed as
     threatened; SE=listed in the State of California as endangered;
   ST=listed in the State of California as threatened; CSC=California
                           species of concern]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                     Swimmers [ducks and duck-like]
------------------------------------------------------------------------
Aleutian Canada goose..........  Branta canadensis        FT
                                  leucopareia.
Barrow's goldeneye.............  Bucephala islandica....  CSC
Common loon....................  Gavia immer............  CSC
Double-crested cormorant.......  Palacrocorax auritus...  CSC
Harlequin duck.................  Histrionicus             CSC
                                  histrionicus.
Marbled murrelet...............  Brachyramphus            FT/SE
                                  marmoratus.
------------------------------------------------------------------------
                    Aerialists [gulls and gull-like]
------------------------------------------------------------------------
American white pelican.........  Pelecanus                CSC
                                  erythorhynchos.
Ashy storm petrel..............  Oceanodroma homochroa..  CSC
California brown pelican.......  Pelecanus occidentalis   FE/SE
                                  californicus.
California gull................  Larus californicus.....  CSC
California least tern..........  Sterna antillarum        FE/SE
                                  browni.
Elegant tern...................  Sterna elegant.........  CSC
Hawaiian dark-rumped petrel....  Pterodroma phaeopygia..  FE
Short-tailed albatross.........  Diomedea albatrus......  FE
------------------------------------------------------------------------
                Long-legged waders [herons, cranes, etc.]
------------------------------------------------------------------------
California black rail..........  Laterallus jamaicensis   ST
                                  corurniculus.
White-faced ibis...............  Plegadis chihi.........  CSC
------------------------------------------------------------------------
               Smaller waders [plovers, sandpipers, etc.]
------------------------------------------------------------------------
Long-billed curlew.............  Numenius americanus....  CSC
Western snowy plover (coastal).  Charadrius alexandrinus  FT/CSC
                                  niv..
------------------------------------------------------------------------
                   Birds of prey [hawks, eagles, owls]
------------------------------------------------------------------------
Bald eagle.....................  Haliaeetus               FT
                                  leucocephalus.
Ferruginous hawk...............  Buteo regalis..........  CSC
Osprey.........................  Pandion haliaetus......  CSC
Prairie falcon.................  Falco mexicanus........  CSC
------------------------------------------------------------------------
                       Passerine birds [perching]
------------------------------------------------------------------------
Saltmarsh common yellowthroat..  Geothlypis trichas       CSC
                                  sinuosa.
------------------------------------------------------------------------

    There are at least twelve critical marine bird nesting areas along 
the shoreline of the Sanctuary. More than twelve species of marine 
birds breed in the Sanctuary. The nesting seabird population of the 
Farallon Islands comprises the largest concentration of breeding marine 
birds in the continental U.S.
    Thirty-three species of marine mammals have been observed in the 
Sanctuary including six species of pinnipeds and twenty-five species of 
cetaceans. More than 20 percent of the state's harbor seals live within 
the boundaries of the Sanctuary, and Northern Fur seals have pupped 
here for the first time since the Sanctuary was designated. Of the 
twenty-six species of cetaceans that occur in Sanctuary waters, 
nineteen are migratory, and seven are considered resident species. Many 
of these marine mammals occur in large concentrations and are dependent 
on the productive and secluded habitat of the Sanctuary's waters and 
adjacent coastal areas for breeding, pupping, hauling-out, feeding, and 
resting during migration. Three areas in the Sanctuary have been 
identified as critical feeding areas for the threatened Steller sea 
lion, including the nearshore areas around Point Reyes, and the 
northern half of Tomales Bay. The Harbor seals, elephant seals, 
California sea lion, Dall's porpoise, harbor porpoise and Gray whales 
are common in the nearshore waters and protected bays of the Sanctuary. 
In addition, four species of endangered sea turtles are known to reside 
in or migrate through Sanctuary waters. A listing of all threatened and 
endangered marine mammals and sea turtles follows.

[[Page 19948]]



 
     [Key: FE=Federally listed as endangered; FT=Federally listed as
     threatened; ST=listed in the State of California as threatened]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                Pinnipeds
------------------------------------------------------------------------
Guadelupe fur seal.............  Arctocephalus townsendi  FT/ST
Stellar (Northern) sea lion....  Eumetopias jubatus.....  FT
------------------------------------------------------------------------
                                Mustelids
------------------------------------------------------------------------
Southern sea otter.............  Enhydra lutris nereis..  FT
------------------------------------------------------------------------
                                Cetaceans
------------------------------------------------------------------------
Blue whale.....................  Balaenoptera musculus..  FE
Humpback whale.................  Magaptera noveangliae..  FE
Sei whale......................  Balaenoptera robustus..  FE
Sperm whale....................  Physeter macrocphalus..  FE
------------------------------------------------------------------------
                               Sea Turtles
------------------------------------------------------------------------
Green turtle...................  Chelonia mydas.........  FE
Leatherback turtle.............  Dermochelys coriancea..  FE
Loggerhead turtle..............  Caretta caretta........  FE
Olive (Pacific) ridley sea       Lepidochelys olivacea..  FE
 turtle.
------------------------------------------------------------------------

    Because of its unique geology and geography, the Sanctuary's marine 
fauna may be more diverse than in other areas along the Pacific Coast. 
The protected bays and coastal wetlands of the Sanctuary, such as 
Tomales Bay, Drakes Bay, Bolinas Lagoon, and the esteros, include 
intertidal mudflats, sand flats, salt marshes, submerged rocky 
terraces, and shallow subtidal areas. These areas support large 
populations of benthic fauna and concentrations of burrowing organisms 
living on marine plants. Submerged eel grass (Zostra) beds are 
prevalent in the northern portion of Tomales Bay, and support crucial 
habitat for more than 50 resident, breeding, and migratory bird 
populations, for a wide array of marine invertebrates, and for the egg 
masses of herring and other fish. It is estimated that approximately 30 
million herring annually spawn in the eelgrass beds of Tomales Bay 
(Fox, 1997). The shallow protected bays and estuaries within the 
Sanctuary, such as Tomales Bay, Drakes Bay, Bolinas Lagoon, and the 
esteros, are important habitat for anadromous fish, several species of 
surfperches, and flatfish. Numerous and diverse fish and invertebrate 
species are found in Sanctuary waters. Over 150 species of fish are 
found in the Sanctuary, and include predator and prey species, and 
commercial fishing species. Among the fish found in Sanctuary waters 
are the endangered winter-run chinook salmon and tidewater goby, and 
coho salmon, Federally listed as a threatened species.
    The nearshore waters of the Sanctuary are particularly vulnerable 
areas where myriad marine invertebrates and algae reside, where bird 
rookeries and pinniped haulout sites are present, where many critical 
nursery and food source habitats for wildlife are located, and where 
many nearshore users of the Sanctuary's water tend to concentrate. The 
nearshore waters of the Sanctuary are also those areas most impacted by 
the operation of MPWC. Lawson's Landing, a current MPWC launch site, is 
situated at the largest pinniped haulout in Tomales Bay, and is also 
within a quarter mile of Walker Creek delta, where the highest 
concentration of wading and shore birds occurs in the Sanctuary, and 
where sea otters have been regularly observed.
    The nearshore waters of the Sanctuary are the areas most heavily 
used for recreation. Areas such as Tomales Bay and Dillon Beach are 
used for sailing, canoeing, rowing, kyaking and swimming. These 
activities are often conducted very close to shore and may be dependent 
on calm waters. The ability of MPWC to go very close to shore (due to 
their shallow draft) and move in unpredictable ways may be detrimental 
to the safety and aesthetic experience of those conducting these more 
benign recreational activities. NOAA believes that MPWC operation in 
nearshore areas creates a user conflict that can be avoided by keeping 
MPWC offshore.
    Because of the biological diversity of the Sanctuary waters, the 
importance of the nearshore areas of the Sanctuary to that diversity, 
the potential for adverse environmental impacts that operation of MPWC 
pose to these nearshore areas, and because the the high potential for 
user conflicts, NOAA has decided to prohibit their operation from the 
nearshore waters of the Sanctuary, including waters surrounding the 
Farallon Islands. After discussions with the National Park Service, the 
Environmental Action Committee of West Marin, the MPWC industry, the 
Audubon Canyon Ranch, and individual ornithologists, NOAA is proposing 
a 1,000-yard buffer as a reasonable area to protect the nearshore 
waters. Specifically, the proposed rule would prohibit the operation of 
MPWC from the mean high-tide line seaward to 1,000 yards (approximately 
0.5 nautical mile). The restricted areas include Drakes Bay, Tomales 
Bay, Bolinas Lagoon, Estero Americano and Estero de San Antonio, except 
for an access corridor from the launch site at Bodega Harbor leading 
into Bodega Bay.
    Historically, there have been 4 (four) launch sites in the area--
Lawson's Landing at Dillion Beach, Millerton Point Park, Inverness, and 
Bodega Harbor. As of 1 November 1998, launching MPWC from Point Reyes 
National Seashore (PRNS) or Golden Gate National Recreation Areas 
(GGNRA) is prohibited (U.S. Dept. of Interior, 1998a & b). Millerton 
Point Park and Inverness are within GGNRA and PRNS boundaries, 
respectively, and therefore can no longer be used. Lawson's Landing is 
situated at the most critical Harbor seal and shore bird area in 
Tomales Bay (Walker Creek Delta). Continued use of Lawson's Landing 
would result in unacceptable disturbance of these sensitive resources. 
Therefore, NOAA is proposing Bodega Harbor as the most appropriate 
launch site, and the access corridor proposed in designed to facilitate 
access by MPWC

[[Page 19949]]

to the GFNMS from this site. This change in primary launch site should 
not cause a significant inconvenience for any of the customary users of 
MPWC within the GFNMS as Bodega Harbor is within five (5) miles of 
Lawson's Landing and is easier to access.

II. Comments and Responses on Notice of Inquiry/Request for 
Information

    The following is a summary of comments received on the Request for 
Information, and NOAA's responses.
    (1) Comment: Prohibiting operation of MPWC in the Sanctuary would 
unfairly single out one type of vessel.
    Response: NOAA disagrees. Several Federal resource agencies have 
recognized MPWC as a unique type of recreational vessel that is 
relatively recent in origin (U.S. Fish and Wildlife Service, 1992; 
NOAA, 1992; U.S. Dept. of Interior, 1998c). MPWC are designed to be 
operated at high speeds, closer to shore, and to make quicker turns 
than other types of motorized vessels. MPWC have a disproportional 
thrust capability and horsepower to vessel length and/or weight, in 
some cases four times that of conventional vessels (U.S. Dept. of 
Interior, 1998c). Research indicates that impacts associated with MPWC 
tend to be locally concentrated, producing effects that are more 
geographically limited yet potentially more severe than motorboat use, 
due to repeated disruptions and an accumulation of impacts in a shorter 
period of time (Snow, 1989). The Washington, D.C., Circuit Court of 
Appeals agreed with NOAA that there was a difference between MPWC and 
other kinds of watercraft: ``personal watercraft were small, highly 
maneuverable, and fast, and * * * they operated close to shore, in 
areas of high concentrations of kelp forests, marine mammals, and sea 
birds. That differentiated all larger craft, all slower craft, all less 
maneuverable craft, and all craft that did not tend to use the same 
areas in the same manner.'' (PWIA v. Dept of Commerce, 1995) There are 
at least five salient differences between the use of MPWC and other 
types of watercraft: (1) MPWC operators rarely engage in sedentary 
activities such as fishing; (2) MPWC operators often travel in groups 
of more than two vessels; (3) MPWC operators generally run their craft 
at high speeds and drive in patterns of repeated circuitous trips; (4) 
MPWC operators repeatedly circumnavigate small islands in shallow 
waters, and/or may repeatedly jump nearshore waves; and (5) because of 
MPWC size, speed and maneuverability, MPWC operators may run 
unpredictable transits, and can access shallow, nearshore areas that 
other types of motorized watercraft cannot.
    (2) Comment: MPWC impact the environment less that other boats, 
primarily due to their smaller size and jet propulsion system.
    Response: NOAA disagrees. MPWC are generally of smaller size, with 
a shallower draft (4 to 9 inches), and lower horsepower (around 75, as 
compared to up to 250 for large pleasure craft) than most other kinds 
of motorized watercraft (Ballestero, 1990; Snow, 1989). The smaller 
size and shallower draft of MPWC means they are more maneuverable, 
operable closer to shore and in shallower waters than other types of 
motorized watercraft. This maneuverability greatly increases the 
potential for MPWC to disturb fragile nearshore habitats and organisms. 
Although wakes of MPWC may be smaller than wakes of conventional motor 
boats, they can be more damaging (e.g., flooding of coastal bird nests; 
erosion of shoreline) because MPWC are often operated faster, closer to 
shore and repeatedly in the same area (Snow, 1989). Also, equipment can 
be installed on MPWC to create more and higher spray, which exacerbates 
the effects of MPWC wake.
    Research indicates that MPWC increase turbidity and may 
redistribute benthic invertebrates, and these impacts may be prolonged 
as a result of repeated use by multiple machines in a limited area. 
Research has shown that MPWC can foul water with their discharge, and 
increase local erosion rates by launching and beaching repeatedly in 
the same locations (Snow, 1989). The Bodega Bay access route proposed 
in this regulation is an established corridor from an active launch 
ramp, and would not result in unreasonable additional environmental 
impacts.
    MPWC are powered by a jet-propelled system that typically involves 
a two-stroke engine with an exhaust expulsion system that vents into 
the water. Most conventional recreational boats use a four-stroke 
engine. The two-stroke engines found on the vast majority of MPWC in 
the United States discharge more of their fuel (ranging from 10 percent 
to more than 50 percent of the unburned fuel/oil mixture, depending on 
manufacturing conditions and operating variables) than the four-stroke 
engines found on conventional recreational boats (Tahoe Research Group, 
1997). These emissions pose a serious threat to the environment, as 
two-stroke engines introduce more volatile organic compounds (by a 
factor of 10) into the water than four-stroke engines (Juttner et al., 
1995; Tjarnlund et al., 1995). These emission can have significant 
adverse impacts in many areas of the Sanctuary, particularly shallow 
nearshore coastal areas and estuaries.
    In addition, the gasoline additive MTBE (methyl tert-butyl ether) 
is being found to contaiminate various water bodies (National Research 
Council, 1996). When discharged into water, MTBE tends to float on the 
surface microlayer of the water. Research has indicated that 
chromosomal damage, malformation, reduced growth, and high mortality 
rates of fish larvae may occur at extremely low levels of surface layer 
hydrocarbon pollution (Long, 1997). MTBE, classified as a possible 
human carcinogen, has been implicated in human complaints of headaches, 
coughs, and nausea, and may also have detrimental effects on wildlife 
(National Research Council 1996). MTBE is more soluble in water than 
other hydrocarbons, is not readily biodegradable, is not subject to 
photolysis, and does not readily absorb to organic or inorganic 
particles. It is expected to volatilize approximately 10 times slower 
than other compounds (Miller and Fiore, 1997; Squillace et al., 1996). 
Since two-stroke engines emit more exhaust into the water, they 
therefore emit more MTBE into the water, posing a more serious 
ecological threat than do four-stroke engines.
    (3) Comment: MPWC may disturb fish, waterfowl and seabirds.
    Response: NOAA agrees. Research in the Everglades National Park 
indicated that fishing success dropped to zero when fishing occurred in 
the same waters used by MPWC, and scientists in the Pacific Northwest 
have been concerned about the effects of MPWC on spawning salmon (Snow, 
1989; Sutherland and Ogle, 1975). Research in Florida indicates that 
MPWC cause wildlife to flush at greater distances, with more complex 
behavioral responses than observed in disturbances caused by 
automobiles, all-terrain vehicles, foot approach, or motorboats. This 
was partially attributed by the scientists to the typical operation of 
MPWC, where they accelerate and decelerate repeatedly and 
unpredictably, and travel at fast speeds directly toward shore, while 
motorboats generally slow down as they approach shore (Rodgers, 1997). 
Scientific research also indicates that even at slower speeds, MPWC 
were a significantly stronger source of disturbance to birds than were 
motorboats. Levels of disturbance were further increased when MPWC were 
used at high speeds or outside of established boating channels (Burger, 
1998). Research notes that declining

[[Page 19950]]

nesting success of grebes, coots, and moorhens in the Imperial National 
Wildlife Refuge were due to the noise and physical intrusion of MPWC 
(Snow, 1989). In addition, MPWC have been observed flushing wading 
birds and nesting osprey from their habitats, contributing to 
abnormally high numbers of abandoned osprey nests on certain islands in 
the Florida Keys (U.S. Fish and Wildlife Service, 1992). The number of 
active osprey nests in the lower Florida Keys ``backcountry'' dropped 
from five to zero between 1986 and 1990. Biologists believe this was 
due to MPWC flushing parents from the nests (Cuthbert and Suman, 1995). 
Research suggests that declines in nesting birds in some states 
occurred simultaneous with MPWC operation. Numerous shoreline roost 
sites exist within the Sanctuary, and research has shown that human 
disturbance at bird roost sites can force birds to completely abandon 
an estuary. Published evidence strongly suggests that estuarine birds 
may be seriously affected by even occasional disturbance during key 
parts of their feeding cycle, and when flushed from feeding areas, such 
as eelgrass beds, will usually abandon the area until the next tidal 
cycle (Kelly, 1997).
    (4) Comment: MPWC disturb marine mammals.
    Response: NOAA agrees. There is a general conclusion that marine 
mammals are more disturbed by watercraft such as MPWC, which run 
faster, on varying courses, or often change direction and speed, than 
they are by boats running parallel to shore with no abrupt course or 
major speed change. Researchers note that MPWC may be disruptive to 
marine mammals when they change speed and direction frequently, are 
unpredictable, and may transit the same area repeatedly in a short 
period of time. In addition, because MPWC lack low-frequency long 
distance sounds underwater, they do not signal surfacing mammals or 
birds of approaching danger until they are very close to them (Gentry, 
1996; Osborne, 1996).
    Possible disturbance effects of MPWC on marine mammals could 
include shifts in activity patterns and site abandonment by harbor 
seals and Steller sea lions; site abandonment by harbor porpoise; 
injuries from collisions; and avoidance by whales (Gentry, 1996; 
Richardson et al., 1995).
    Comment: MPWC are excessively noisy, and disturb the peace of other 
users of the Sanctuary.
    Response: In general, unless modified by the operator (i.e., 
removal or alteration of the muffler), MPWC do not appear to be any 
louder in the air than similarly powered conventional motorized 
watercraft (MPWC and conventional watercraft both registered between 74 
and 84 decibels in tests conducted in 1990) (Wooley, 1996) and appear 
to be quieter underwater (Gentry, 1996). However, many MPWC operators 
alter or remove the mufflers to enhance craft performance, thus 
increasing the noise generated by their craft. Also, MPWC may be 
perceived as being louder than other boats because they can travel 
faster, closer to shore often travel in groups, tend to frequently 
accelerate and decelerate, and ``wake-jump.''These characteristics 
create uneven, persistent noise apparently more bothersome to people 
and potentially to wildlife. In addition, research indicates that the 
constancy of speed figures into noise generation, as most people adjust 
to a constant drone and cease to be disturbed by it, even at elevated 
levels, but the changes in loudness and pitch of MPWC are more 
disturbing to people than other watercraft (Wagner, 1994).
    (6) Comment: MPWC may interfere with other recreational uses of the 
Sanctuary.
    Response: NOAA agrees. The Sanctuary encourages multiple uses of 
its waters that are compatible with resource protection. When used as 
designed and in the current manner, MPWC have significant potential to 
interfere with a large number of other Sanctuary users. Numerous 
respondents to the Notice of Inquiry/Request for Information noted that 
MPWC were interfering with, and often jeopardizing the well-being of, 
swimmers, kayakers, canoeists, and other recreational boaters and users 
of nearshore areas in the Sanctuary. MPWC have been involved in 
numerous accidents, and thus pose a hazard to other water users. 
Although MPWC make up approximately 11 percent of vessels registered in 
the country (U.S. Dept. of Interior, 1998c), Coast Guard statistics 
show that in 1996, 36 percent of all watercraft involved in accidents 
were MPWC (U.S. Coast Guard, 1999). In addition, numerous commentors 
noted that the operation of MPWC in nearshore areas diminishes the 
aesthetic qualities of many beach and recreational areas, and may 
interfere with other economic uses of the areas based upon these 
aesthetic qualities.
    (7) Comment: MPWC are incompatible with the purposes of the 
Sanctuary.
    Response: The Sanctuary was designated in 1981 to ``protect and 
preserve the extraordinary ecosystems, including marine birds, mammals, 
and other natural resources, of the waters surrounding the Farallon 
Islands and Point Reyes, and to ensure the continued availability of 
the area as a research and recreational resource.'' When used as 
designed and in the current manner, the combined attributes of MPWC 
interfere with resource protection, multiple compatible use of 
Sanctuary resources, and the long-term ecological integrity of the 
nearshore Sanctuary waters. While use of MPWC in certain areas of the 
GFNMS could adversely impact resources and create conflicts, uses 
outside these areas may not be incompatible with the Sanctuary's 
purposes. For the reasons outlined in responses 1 through 7, NOAA 
believes that operation of MPWC are incompatible with the protection 
and preservation of the sensitive natural resources of the nearshore 
waters of the Sanctuary.

III. Summary of Regulations

    Due to the many bird, pinniped, mustelid, cetacean and fish 
species, dependent solely or in the part on the Sanctuary's nearshore 
waters, some of which are listed by the State of California and/or the 
Federal Government as endangered, threatened, or of concern, and the 
effects the operation of MPWC has on these species and other human 
users of the Sanctuary's waters (as detailed above), NOAA proposes to 
restrict the operation so MPWC within Sanctuary waters to those areas 
outside a 1,000-yard nearshore zone, including around the Farallon 
Islands. In proposing this rule, NOAA is responding to the April 1996 
petition of the Environmental Action Committee of West Marin, 
California and to the agency's constituents, including the public, 
marine commercial interests, and other governments agencies. In 
responding, the agency has taken into account all expressed viewpoints, 
and has attempted to balance these fully and in accordance with the 
Gulf of the Farallones National Marine Sanctuary's stated mission to 
``protect and preserve the extraordinary ecosystem, including marine 
birds, mammals, and other natural resources, of the waters surrounding 
the Farallon Islands and Point Reyes, and to ensure the continued 
availability of the area as a research and recreational resource.'' In 
responding thus, the agency also aims to proactivity carry out the 
mission of the MFNMS by addressing the operation of a unique type of 
vessel in sensitive marine and estuarine habitats.
    Amendments to the GFNMS regulations are proposed in this rulemaking 
as follows:

[[Page 19951]]

    The proposed amendment is the addition to 15 CFR 922.82(a) of a 
prohibition against operation of motorized personal watercraft in the 
nearshore waters of the Sanctuary. Specifically, the operation of MPWC 
would be prohibited from the mean high-tide line seaward to 1,000 yards 
(approximately 0.5 nautical mile), including seaward of the Farallon 
Islands. The restricted areas include Drakes Bay, Tomales Bay, Bolinas 
Lagoon, Estero Americano and Estero de San Antonio, except for an 
access corridor in Bodega Bay, as described in Appendix B of Subpart H 
of 15 CFR Part 922. The prohibition would include an exception for the 
use of MPWC for emergency search and rescue and law enforcement (other 
than training activities) by Federal, State and local jurisdictions.
    Section 922.81 would also be amended by adding a definition of 
``motorized personal watercraft'' as ``a vessel which uses an inboard 
motor powering a water jet pump as its primary source of motive power 
and which is designed to be operated by a person sitting, standing, or 
kneeling on the vessel, rather than the conventional manner of sitting 
or standing inside the vessel.''
    As discussed in detail above, this regulation is necessary to 
protect sensitive biological resources and important, to minimize user 
conflict, and to protect the ecological, aesthetic, and recreational 
qualities of the nearshore area of the Sanctuary.

IV. Miscellaneous Rulemaking Requirements

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant for 
purposes of Executive order 12866.

Executive Order 12612: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
federal implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 12612.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration as follows:
    The proposed rule would amend the Gulf of the Farallones National 
Marine Sanctuary (GFNMS or Sanctuary) regulations to prohibit the 
operation of motorized personal watercraft in the nearshore areas of 
the Sanctuary. Specifically, the operation of MPWC would be prohibited 
from the mean high-tide line seaward to 1,000 yards (approximately 0.5 
nautical mile). The proposed rule would ensure that Sanctuary resources 
and qualities are not adversely impacted and would help avoid conflicts 
among various users of the Sanctuary.
    There are currently two established launch sites for MPWC operation 
in the Sanctuary; Lawson's Landing and Bodega Harbor. The proposed 
regulation would remove Lawson's Landing as a MPWC launch site due to 
its proximity to critical harbor seal and shore bird areas. Lawson's 
Landing, on the eastern shore at the mouth of Tomales Bay, had 169 MPWC 
launches in 1997 at $5/launch. According to the owner of Lawson's 
Landing, the total annual value of MPWC launch business was under $800, 
because some of the launches were free. Neither launch site rents MPWC. 
The Bodega Harbor launch site will still be available for MPWC, and is 
less than 5 miles north of Lawson's Landing. The owner of Lawson's 
Landing says that this is a minor portion of the total revenues. The 
majority of the Sanctuary (over 95 percent) will still be available to 
MPWC, so rentals should not be affected by the 1,000-yard prohibited 
buffer. Consequently, the rule is not expected to significantly impact 
a substantial number of small business entities.
    Accordingly, a Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act

    This proposed rule would not impose an information collection 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act of 1980, 44 U.S.C. 3500 et seq.

National Environmental Policy Act

    NOAA has concluded that this regulatory action does not constitute 
a major federal action significantly affecting the quality of the human 
environment. Therefore, an environmental impact statement is not 
required. A draft environmental assessment has been prepared. It is 
available for comment from the address listed at the beginning of this 
notice.

Bibliography

    Ballestero, T.P. 1990. Impact of motor boat and personal 
watercraft on the environment: bibliography. Environmental Research 
Group, University of New Hampshire. Durham, New Hampshire. 25pp.
    Burger, J. 1998. Effects of motorboats and personal watercraft 
on flight behavior over a colony of Common Terns. Condor, 100 (3): 
528-534.
    Cuthbert, A. and D. Suman. 1995. To jet ski or not to jet ski: 
personal watercraft conflicts in the lower Florida Keys, in Suman, 
D., Shivlani, and M. Villanueva, eds. Urban growth and sustainable 
habitats, Division of Marine Affairs and Policy, Rosenstiel School 
of Marine and Atmospheric Science, University of Miami, Miami, 
Florida.
    Fox, K.J., President, Tomales Bay Association, Point Reyes 
Station, California. Personal communication, Sept. 25, 1997.
    Gentry, R. 1996. Motorized Personal Water Craft and Marine 
Mammal Populations in Washington Sound, Washington. Technical paper.
    Juttner, F., D. Backhaus, U. Matthias, U. Essers, R. Greiner, 
and B. Mahr. 1995. Emissions of Two- and Four-Stroke Outboard 
Engines--I. Quantifications of Gases and VOC. Wat. Res. Vol. 29, No. 
8, 1976-1982.
    Kelly, J., Resident Biologist, Audubon Canyon Ranch, Marshall, 
California. Personal communication, Sept. 25, 1997.
    Long, R., 1997. Polluting for Pleasure: Part II. Sail, January 
1997.
    Miller, G. and M. Fiore. 1997. Preliminary Study on Gasoline 
Constitutents in Lake Tahoe, Summer, 1997. Environmental and 
Resources Sciences Department, University of Nevada, Reno.
    National Oceanic and Atmospheric Administration. 1992. Monterey 
Bay National Marine Sanctuary Final Environmental Impact Statement 
and Final Regulations. 57 FR 43310 (Sept. 18, 1992).
    National Research Council. 1996. Toxicological and Performance 
Aspects of Oxygenated Motor Vehicle Fuels. National Academy Press.
    Osborne, R. 1996. ``Testimony and Exhibits Submitted to Board of 
County Commissioners Regarding Restrictions on Use of Jet Skis in 
San Juan County.'' Superior Court of Washington, for Whatcom County.
    Richardson, J.W., C.R. Greene, Jr., C.I. Malme, and D.H. 
Thomson, 1995. Marine Mammals and Noise. Academic Press, San Diego, 
CA.
    Rodgers, J.A. and H.T. Smith. 1997. Buffer zone distances to 
protect foraging and loafing waterbirds from human disturbance in 
Florida. Wildlife Soc. Bull., 25(1):139-145.
    Snow, S. 1989. A Review of Personal Watercraft and Their 
Potential Impact on the Natural Resources of Everglades National 
Park. Technical paper.
    Squillace, P.J., J.F. Pankow, N.E. Korte, and J.S. Zogorski. 
1996. Environmental Behavior and Fate of Meth tert-Butyl Ether 
(MTBE). U.S. Geological Survey Fact Sheet F5-203-96.
    Sutherland, A.J. and D.G. Ogle. 1975. Effect of jet boats on 
salmon eggs. N.Z. Journal of Marine and Freshwater Research, 
9(3):273-82.
    Tahoe Research Group. 1997. The Use of 2-Cycle Engine Watercraft 
on Lake Tahoe: Water Quality and Limnological Considerations. 
University of California, Davis.
    Tjarnlund, U., G. Ericson, E. Lindesjoo, I. Petterson, and L. 
Balk. 1995. Investigation of the Biological Effects of 2-Cycle 
Outboard Engines' Exhaust on Fish. Marine Environmental Research. 
39, 313-316.

[[Page 19952]]

    U.S. Coast Guard. 1999. Recreational Boating Accident Statistics 
1995 and 1996. www.uscgboating.org/stats.html. Accessed Feb. 1999.
    PWIA vs. Department of Commerce, 48 F.3d 540 (D.C. Cir. 1995).
    U.S. Department of the Interior. 1998a. Golden Gate National 
Recreation Area. Code of Federal Regulations, Title 36, Chapter 1, 
compendium amendment and Administrative Record.
    U.S. Department of the Interior. 1998b. Point Reyes National 
Seashore. Code of Federal Regulations, Title 36, Chapter 1, 
compendium.
    U.S. Department of the Interior. 1998c. Proposed Rule: Personal 
Watercraft Use Within the NPS System. 63 FR 49312 (Sept. 15, 1998).
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the Florida Keys Refuges--Monore County, Florida.
    Wagner, K.J. 1994. Of hammacks and horsepower: the noise issue 
at lakes. Lakeline, June 1994, pp. 24-28.
    Woolley, T. 1996. Testimony prepared for the Superior Court of 
Washington for Whatcom County.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Education, 
Environmental protection, Marine resources, Penalties, Recreation and 
recreation areas, Reporting and recordkeeping requirements, Research.

    Authority: 16 U.S.C. Section 1431 et seq.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    April 3, 1999.
Ted Lillestolen,
Deputy Assistant Administrator, Ocean Services and Coastal Zone 
Management.

    Accordingly, for the reasons set forth above, 15 CFR 922, Subpart H 
is proposed to be amended as follows:

PART 922, SUBPART H--THE GULF OF THE FARALLONES NATIONAL MARINE 
SANCTUARY

    1. Section 922.81 is amended by adding the following definition, in 
the appropriate alphabetical order.


Sec. 922.81  Definitions.

* * * * *
    Motorized personal watercraft means a vessel which uses an inboard 
motor powering a water jet pump as its primary source of motive power 
and which is designed to be operated by a person sitting, standing, or 
kneeling on the vessel, rather than the conventional manner of sitting 
or standing inside the vessel.
    2. Section 922.82 is amended by adding new paragraph (a)(7) as 
follows:


Sec. 922.82  Prohibited or otherwise regulated activities.

    (a) * * *
    (7)(i) Except for transit through an established access corridor 
described in Appendix B to this subpart, operation of any motorized 
personal watercraft from the mean high-tide line seaward to 1,000 yards 
(approximately 0.5 nautical mile), including 1,000 yards seaward from 
the Farallon Islands. The restricted areas include Drakes Bay, Tomales 
Bay, Bolinas Lagoon, Estero Americano and Estero de San Antonio.
    (ii) This prohibition shall not apply to the use of personal 
watercraft for emergency search and rescue missions or law enforcement 
operations carried out by National Park Service, U.S. Coast Guard, San 
Francisco Fire or Police Departments or other Federal, State or local 
jurisdictions.
* * * * *
    3. A new appendix is added to subpart H, as follows:

Appendix B to Subpart H of Part 922--Access Corridor Within the 
Sanctuary Where the Operation of Motorized Personal Watercraft Is 
Allowed

    There shall be an access corridor at Bodega Bay where MPWC can 
launch and motor out to waters that are outside the 1,000 yard buffer 
where operation of MPWC are prohibited. This access corridor shall be 
between the following coordinates at Bodega Harbor: South Jetty: 38__ 
18'18'' N, 123__ 02'54'' W; North Jetty: 38__ 18'22'' N, 123__ 02'56'' 
W; and out 1,000 yards into the Bay on a 090__ T bearing.

[FR Doc. 99-9981 Filed 4-22-99; 8:45 am]
BILLING CODE 3510-08-M