[Federal Register Volume 66, Number 175 (Monday, September 10, 2001)]
[Rules and Regulations]
[Pages 46942-46951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22637]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 970626156-1021-04]
RIN 0648-AK01


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

AGENCY: Office of National Marine Sanctuaries, National Ocean Service 
(NOS), National Oceanic and Atmospheric Administration (NOAA) 
Department of Commerce.

ACTION: Final rule; notice of availability of environmental assessment.

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SUMMARY: NOAA amends the regulations governing activities in the Gulf 
of the Farallones National Marine Sanctuary (GFNMS or Sanctuary) to 
prohibit the operation of motorized personal watercraft (MPWC) within 
the boundaries of the GFNMS. This regulation is necessary to protect 
sensitive biological resources, to minimize user conflict, and to 
protect the ecological, aesthetic, and recreational qualities of the 
Sanctuary. NOAA also announces the availability of an Environmental 
Assessment (EA) on the rule.

DATES: Effective October 10, 2001.

[[Page 46943]]


ADDRESSES: Copies of the Environmental Assessment are available upon 
request from the Gulf of the Farallones National Marine Sanctuary, Fort 
Mason, Building 201, San Francisco, CA 94123 (415) 561-6622.

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 Farrallones, California, the GFNMS was 
designated in January 1981. 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 is currently 
not regulated under GFNMS regulations. 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% supported the EAC's 
requested 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 
issue. 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%) 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 who 
supported the petition to ban MPWC operation. Half of the speakers at 
the public meeting had previously submitted written comments.
    Responses to and investigation of the specific questions in the 
August, 1997 notice revealed that: (1) The number of MPWC currently 
being operated in Sanctuary waters is believed to be 20 by the 
proprietors of Lawson's Landing, the primary MPWC launch site in 
Sanctuary waters, and these users make less than 200 launches per year; 
(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% 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, and 8) 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 were identified during 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 users; (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 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; and (15) MPWC present a present and potential 
threat to resources and users of the GFNMS.
    Based on this information, the NMSP published a proposed rule to 
prohibit operation of MPWC from the mean high tide line seaward to 1000 
yards. The proposed rule was designed to protect Sanctuary resources 
and minimizing user conflict in the nearshore areas. NOAA received 53 
public comments on the proposed rule. Fifty-one commentors (96%) 
supported a full ban on MPWC within the GFNMS and 2 (4%) opposed the 
proposed regulations. On June 2, 1999, a public hearing to accept 
comments on the proposed rule was held in Point Reyes, California. Five 
people spoke at the public hearing. Three people spoke in favor of a 
complete ban on MPWC within the GFNMS and two people spoke out against 
the proposed 1000-yard restriction. Comments received on the April 23 
rule and NOAA's responses were included in the preamble to the proposed 
rule that was published in the Federal Register on May 22, 2000.
    After considering the comments in response to the proposed rule, 
reviewing new and recent MPWC regulations for agencies with contiguous 
or overlapping boundaries, and reviewing recent biological information, 
NOAA concluded that a total prohibition on the operation of MPWC would 
be necessary to adequately protect Sanctuary resources. On May 22, 
2000, NOAA published a notice of

[[Page 46944]]

withdrawal of the April 23, 1999 proposed rule, a new proposed rule for 
the total prohibition of MPWC within the Sanctuary, and a notice of 
availability of Draft Environmental Assessment (DEA). Comments on the 
proposed rule and the DEA were accepted until June 21, 2000. In 
addition, a public hearing was held on June 12, 2000. NOAA received 65 
comments on the proposed rule. Fifty commentors (77%) supported a full 
ban and 15 (23%) were opposed to the full ban. The comments and NOAA's 
responses to them are provided below.
    The waters of the Sanctuary are home to a rich diversity of 
organisms and provide critical habitat for seabirds, marine mammals, 
fishes, invertebrates, sea turtles and marine flora. The biological 
importance and uniqueness of Sanctuary waters have been internationally 
recognized by the incorporation of Sanctuary waters into the United 
Nations' Man in the Biosphere system as part of the Golden Gate 
Biosphere Reserve, and the designation of Bolinas Lagoon as a RAMSAR 
(Convention for Wetlands of International Significance) site.
    Because of its unique geology and geography, the biological 
diversity found within the GFNMS rivals any location along the Pacific 
coast. Fueled by the strongest coastal upwelling in North America 
(Bakun, 1973), abundant biological resources thrive in the productive 
waters of the Gulf's broad, shallow continental shelf. A counter-
clockwise eddy that swirls south of Point Reyes in the Gulf of the 
Farallones concentrates the products of upwelling (Wing et al., 1995) 
and acts like an incubator for small developing animals. These in turn 
are food for organisms higher on the food web. The result is a marine 
system that supports some of the most active commercial fisheries on 
the west coast, provides food and habitat to support the largest 
concentration of breeding seabirds in the continental United States and 
supports roughly 20% of the breeding population of California's harbor 
seals. The offshore area of the Sanctuary provides important habitat 
for federally endangered blue, humpback, fin, sei and sperm whales, and 
provides habitat for up to 50% of all the ashy storm petrels in the 
world and 90% of all the common murres in their southern range. Harbor 
porpoise, Steller sea lions, Pacific white sided dolphins, Dall's 
porpoise, California sea lions, common murres, Cassin's auklets, 
rhinoceros auklets, three species of cormorants, two species of grebes, 
tufted puffins, pigeon guillemots, marbled murrelets, black footed 
albatross, storm petrels, shearwaters, fulmars and many species of 
seabirds and marine mammals that are less abundant also depend on the 
offshore areas of the Sanctuary to provide food and shelter.
    The Gulf of the Farallones is a destination feeding area for 
protected white sharks (Klimley and Ainley, 1996) and endangered blue 
and humpback whales (Kieckhefer, 1992). The sharks aggregate in coastal 
areas and near the Farallon islands from spring through fall to feed on 
an abundance of seals and sea lions. The whales travel from Mexico to 
feed on the concentrations of krill and forage fish found in the 
Sanctuary. From spring through late summer, krill swarm in the surface 
layers of the Gulf (Smith and Adams, 1988). It is during these daytime 
surface swarms that krill are most vulnerable to predators. Endangered 
whales, seabirds and salmon feed heavily on krill when krill are 
concentrated in these surface aggregations. Ten percent of California's 
threatened coho salmon population feed in the outer Sanctuary during 
the ocean phase of their life history before returning to spawn in 
Lagaunitas Creek and its tributaries. Recently listed populations of 
chinook salmon also feed in the Gulf of the Farallones as adults before 
returning to the Sacramento River drainage to complete their life 
cycle. Gray whales pass through the Sanctuary twice a year on their 
migration route between winter calving grounds in Mexico and summertime 
feeding areas in Alaska. In recent years, more individual gray whales 
are remaining in the Gulf of the Farallones throughout the year to feed 
instead of proceeding to the feeding grounds in Alaska.
    The protected bays and coastal wetlands of the Sanctuary, such as 
Bodega Bay, Tomales Bay, Drakes Bay, Bolinas Lagoon, Estero Americano 
and Estero de San Antonio, 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 and organisms living on marine 
plants. Submerged eelgrass (Zostera marina) beds are prevalent in the 
northern portion of Tomales Bay and provide crucial feeding habitat for 
more than 50 resident, breeding, and migratory bird species. These 
eelgrass beds are also important for many marine invertebrates and for 
the developing egg masses of herring and other fishes. It is estimated 
that approximately 30 million herring spawn annually on 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, sharks, rays and flatfish. Over 
150 species of fish are found in the Sanctuary including the federally 
endangered winter-run Chinook salmon and the federally threatened coho 
salmon, spring run Chinook salmon, steelhead trout and tidewater goby.
    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 which are found in the 
Sanctuary and on the Farallon Islands (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           CSC
                                   islandica.
    Common Loon.................  Gavia immer.......  CSC
    Double-crested Cormorant....  Palacrocorax        CSC
                                   auritus.
    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         CSC
                                   homochroa.
    California Brown Pelican....  Pelecanus           FE/SE
                                   occidentalis
                                   californicus.
    California Gull.............  Larus californicus  CSC
    California Least Tern.......  Sterna antillarum   FE/SE
                                   browni.
    Elegant Tern................  Sterna elegant....  CSC
    Short-tailed Albatross......  Diomedea albatrus.  FE

[[Page 46945]]

 
Long-legged waders [herons,
 cranes, etc.]:
    California Black Rail.......  Laterallus          ST
                                   jamaicensis
                                   corurniculus.
Smaller waders [plovers,
 sandpipers, etc.]:
    Long-billed Curlew..........  Numenius            CSC
                                   americanus.
    Western Snowy Plover          Charadrius          FT/CSC
     (coastal).                    alexandrinus niv..
Birds of prey [hawks, eagles,
 owls]:
    Bald Eagle check status.....  Haliaeetus          FT
                                   leucocephalus.
    Ferruginous Hawk............  Buteo regalis.....  CSC
    Osprey......................  Pandion haliaetus.  CSC
    Prairie Falcon..............  Falco mexicanus...  CSC
    Peregrine Falcon............  Falco peregrinus..  FE
Passerine birds [perching]:
    Saltmarsh common              Geothlypis trichas  CSC
     yellowthroat.                 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 within the Sanctuary and the nesting population on the 
Farallon Islands is the largest concentration of breeding marine birds 
in the continental United States. During nesting and rearing of young, 
these sea birds are especially dependent on the Sanctuary waters for 
food.
    Thirty-three species of marine mammals have been observed in the 
Sanctuary including six species of pinnipeds, one mustelid and twenty-
six species of cetaceans. About 20% of the state's breeding population 
of harbor seals live within the boundaries of the Sanctuary, and 
northern fur seals are starting to recolonize historic pupping sites 
within the Sanctuary for the first time since 1820. 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, the northern half of Tomales 
Bay and areas adjacent to the Farallon Islands.
    Humpback and blue whales migrate to offshore areas of the Sanctuary 
each summer to feed. Fin, sei and sperm whales also frequent this area 
when prey are abundant. Harbor seals, elephant seals, California sea 
lions, Dall's porpoise, harbor porpoise and gray whales are common 
residents in Sanctuary waters. Gray whales pass through the Sanctuary 
twice a year on their migration route between winter calving grounds in 
Mexico and summertime feeding areas in Alaska. In recent years, 
individuals have remained in the Gulf of the Farallones to feed instead 
of proceeding to the feeding grounds in Alaska. Since 1999, gray whales 
have been feeding in Bodega Bay and cow-calf pairs have been entering 
coastal embayments in unprecedented numbers. Some individuals have 
acclimated to conditions in the Sanctuary and are now year-round 
residents. Four species of endangered sea turtles are also known to 
reside in or migrate through Sanctuary waters. A listing of all 
threatened and endangered marine mammals and sea turtles follows (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       FT/ST
                                   townsendi.
    Steller (Northern) sea lion.  Eumetopias jubatus  FT
Mustelids:
    Southern sea otter..........  Enhydra lutris      FT
                                   nereis.
Cetaceans:
    Blue whale..................  Balaenoptera        FE
                                   musculus.
    Humpback whale..............  Magaptera           FE
                                   noveangliae.
    Sei whale...................  Balaenoptera        FE
                                   robustus.
    Sperm whale.................  Physeter            FE
                                   macrocphalus.
    Fin whale...................  Balaenoptera        FE
                                   physalus.
Sea Turtles:
    Green turtle................  Chelonia mydas....  FE
    Leatherback turtle..........  Dermochelys         FE
                                   coriacea.
    Loggerhead turtle...........  Caretta caretta...  FE
    Olive (Pacific) ridley......  Lepidochelys        FE
                                   olivacea.
 

    Several populations of marine mammals are starting to recover from 
near extinction after years of human exploitation. As populations begin 
to rebound, individuals are expanding the populations' distributions 
back to historic ranges. In many instances, such as the sea otters, 
gray whales, northern fur seals and elephant seals, animals are using 
areas that have not been utilized for decades. It is critical for the 
Sanctuary to provide habitat that was historically available and allow 
these populations to return to their natural levels.
    The offshore waters of the Sanctuary also provide entrance and 
egress for commercial shipping traffic using ports in San Francisco 
Bay. Tankers and container ships traverse the Sanctuary in three 
offshore shipping lanes that direct traffic from different directions 
in and out of San Francisco Bay. These offshore waters also support an 
active sport and commercial fishery. Small skiffs and larger commercial 
vessels troll at constant speeds or drift through the Sanctuary waters 
fishing for salmon and albacore. Rockfish and urchin boats fish the 
high spots and reefs closer to shore. On the softer sediment of the 
continental shelf, crab fishermen lay out their lines of crab pots each 
one identified with a buoy at the surface. All of these activities have 
gear in the water that is independent from or is attached but extends 
some distance from the boat. The gear is not readily apparent to the 
casual observer. Fishermen are generally aware of how gear types are 
deployed and operated. In cases where

[[Page 46946]]

the potential for conflict arises, most boats operating offshore have 
navigation equipment and radios to communicate with each other. 
Commercial whale watching and seabird operations regularly use the 
offshore area of the Sanctuary for wildlife viewing opportunities. In 
1999, 3500 people visited the Sanctuary on one commercial company's 
whale watching trips (Mary Jane Schramm, Oceanic Society, pers.com comm. 
10 April 2000).
    The nearshore waters of the Sanctuary are the areas most heavily 
used for recreation. Areas such as Tomales Bay and Dillon Beach in 
Bodega Bay are used for fishing, sailing, canoeing, rowing, kayaking 
and swimming. These activities are often conducted very close to shore 
and may be dependent on calm waters. Other activities conducted in the 
nearshore area of the Sanctuary that could be affected by MPWC include 
diving, windsurfing, surfing and bodyboarding.
    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). 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 motorboats, 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).
    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. The two-stroke engines found on the vast majority of MPWC in 
the United States discharge more of their fuel (ranging from 10% to 
more than 50% of the unburned fuel/oil mixture, depending on 
manufacturing conditions and operating variables) than four-stroke 
engines (Tahoe Research Group, 1997). These emissions pose a serious 
threat to the environment, as two-stroke engines introduce more 
volatile organic compounds (by as much as a factor of 10) into the 
water than four-stroke engines (Juttner et al., 1995; Tjarnlund et al., 
1995). These emissions can have significant adverse impacts in many 
areas of the Sanctuary, particularly shallow nearshore coastal areas, 
estuaries, and open ocean surface waters.
    Research indicates that MPWC can 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). 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 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 simultaneously 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 area. 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). Seabirds 
such as common murres and sooty shearwaters often form large 
aggregations on the surface of the ocean. Feeding aggregations of sooty 
shearwaters can often number in the thousands and cover significant 
offshore areas. These feeding flocks are ephemeral in nature and their 
movement is dictated by the availability of their prey. These seabirds 
are especially susceptible during these critical periods and 
disturbance could have negative impacts on them.
    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 changes. 
Researchers note that MPWC may be disruptive to marine mammals because 
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).

[[Page 46947]]

    The offshore area of the Sanctuary is a destination feeding ground 
for endangered blue and humpback whales. Fin, sei, and sperm whales 
also frequent offshore areas to forage. The recent MPWC bans 
implemented by PRNS and GGNRA limit the nearshore areas of the 
Sanctuary where MPWC can be operated and increase the likelihood that 
MPWC will be used in the Sanctuary's offshore area. The traffic route 
from the launch site in Bodega Harbor through Bodega Bay to and from 
this offshore area would put MPWC in offshore feeding areas for 
federally listed seabirds, marine mammals, and salmon. It would also 
cross the migration corridor for gray whales and put MPWC in close 
proximity to gray whale feeding areas in Bodega Bay. Gray whales pass 
through the Sanctuary twice a year on their migration route between 
winter calving grounds in Mexico and summertime feeding areas in 
Alaska.
    In 1995, some gray whales began feeding in the Gulf of the 
Farallones in lieu of completing their yearly migration to Alaskan 
feeding grounds and some of these animals are beginning to reside in 
the Gulf year-round. Since 1999, gray whales have been feeding in 
Bodega Bay in unprecedented numbers. Some individuals have acclimated 
to conditions in the Sanctuary and are now year round residents. In 
early summer, gray whales begin foraging in Bodega Bay with the most 
recent feeding activity documented in early April, 2000 (Dr. Sarah 
Allen, Point Reyes National Seashore, pers.com comm. April 11, 2000).
    Historically, there were four launch sites used by MPWC to access 
Sanctuary waters: Lawson's Landing at Dillon Beach, Millerton Point 
Park, Inverness, and Bodega Harbor. Millerton Point Park and Inverness 
are now closed to launching MPWC as a result of the prohibition against 
MPWC operation in PRNS and GGNRA. Lawson's Landing is in Marin County 
and was closed to MPWC by the 1999 County ordinance but can be used at 
the present time because of the tentative ruling by the Marin Superior 
Court on September 13, 2000, described above. Currently, the only 
remaining egress into the Sanctuary is from Lawson's Landing and from 
Bodega Harbor in Sonoma County. Use by MPWC of an egress corridor from 
Bodega Harbor in Sonoma County would put MPWC in the same vicinity as 
the feeding whales. Gray whales have not been observed in Bodega Bay 
when MPWC are using the area. With site affinity not firmly established 
for gray whales starting to feed in Bodega Bay, it's important that 
these whales be allowed to forage without repeated disturbance.
    Endangered blue whales were also observed feeding two miles off of 
the Point Reyes headlands during July of 1999. This is unusually close 
to shore for these animals, whose numbers in the area comprise a major 
concentration for the world, and who normally forage farther offshore. 
This unpredictable blue whale feeding activity demonstrates the 
importance of protecting all of the Sanctuary's waters. As marine 
mammal populations begin to recover from years of harvesting pressure, 
it is difficult to predict what areas of the Sanctuary will be 
utilized. Humpback whales regularly feed in areas outside NOAA's 
previously proposed 1000 yard buffer (Kiekhefer, 1992). During summer 
and fall more than 100 humpback whales can be observed moving around 
the Gulf of the Farallones following concentrations of herring, 
sardines, or krill that are their favorite prey. Humpbacks use bubble 
nets and other behavioral adaptations during feeding to drive their 
prey to the surface where they are trapped by the air-sea interface and 
captured.
    Federally listed Southern sea otter populations are also recovering 
from near extinction and recolonizing areas within their historic 
range. Sitings of sea otters in the GFNMS have increased from two 
individuals in 1992 to 20 animals in 1998 (Dr. Sarah Allen, Point Reyes 
National Seashore, pers.com comm. July, 1999). Prior to the designation of 
the Monterey Bay National Marine Sanctuary, an otter in that area was 
struck and killed by an MPWC. (NOAA 1990, Volume 1). Operation of MPWC 
in GFNMS could put these animals at risk in an area that appears to be 
providing habitat and an opportunity for the species' survival.
    In Sanctuary waters beyond three nautical miles are found 11 
federally endangered and 7 threatened species of birds, fish, turtles, 
and marine mammals, and 50% of all the ashy storm petrels in the world 
and 90% of all the common murres in their southern range. These waters 
are a destination feeding area for concentrations of endangered blue 
and humpback whales, feeding summer resident fin, sei and sperm whales, 
endangered winter run chinook and coho salmon.
    MPWC have significant potential to interfere with a large number of 
other Sanctuary users. Numerous respondents to the Notice of Inquiry/
Request for Information and the April 23, 1999, proposed rule and the 
subsequent revised proposed rule on May 22, 2000, noted that MPWC were 
interfering with, and often jeopardizing the well-being of, swimmers, 
kayakers, canoeists, and other boaters and users of the Sanctuary. MPWC 
have been involved in numerous accidents, and thus pose a hazard to 
other vessels and water users. Although MPWC make up approximately 11% 
of vessels registered in the country (U.S. Dept. of Interior, 1998c), 
Coast Guard statistics show that in 1996 MPWC were involved in 36% of 
all watercraft accidents (U.S. Coast Guard, 1999). In addition, 
numerous commentors noted that the operation of MPWC diminishes the 
aesthetic qualities of many coastal and ocean areas, and may interfere 
with other economic uses, such as tourism.

II. Summary of Comments and Responses

    Comment 1: MPWC operation should be prohibited throughout the 
entire Sanctuary.
    Response: NOAA agrees. After consideration of all comments, the 
latest biological information on impacts of MPWC in offshore areas, 
regulations promulgated by other resource agencies with adjacent or 
overlapping jurisdiction, and conflicts with other Sanctuary users, 
NOAA has concluded that a Sanctuary-wide prohibition on the operation 
of MPWC is necessary and the best way to protect the Sanctuary's 
resources.
    Comment 2: MPWC operation should not be prohibited throughout the 
entire Sanctuary.
    Response: NOAA disagrees. See response to Comment 1.
    Comment 3: MPWC should be regulated by a seasonal ban because the 
presence of whales in the Sanctuary is seasonal.
    Response: NOAA disagrees. A seasonal ban will not provide adequate 
year-round protection to whales in the GFNMS. NOAA believes that a 
seasonal ban will not give adequate protection to Gray whales because 
Gray whales have been observed in the Sanctuary every month of the year 
since 1995. Prior to that, Gray whales were commonly seen from March 1-
December 1 and often seen in February. As indicated in the final EA, 
researchers have indicated that MPWC may disrupt marine mammals because 
MPWC change speed and direction frequently, are unpredictable, and may 
transit the same area repeatedly in a short period of time. Although 
MPWC lack low-frequency long distance sounds underwater this does not 
mean that marine mammals are not adversely impacted by MPWC noise. 
Whether the noise is heard at close range or farther away, it still 
will disturb marine mammals which may cause shifts in activity 
patterns, site abandonment, or avoidance. Since

[[Page 46948]]

marine mammals are limited to close range detection of MPWC noise and 
activity there is a greater chance of collision.
    In addition, whales are not the only wildlife that inhabit the 
Sanctuary that are disturbed and negatively impacted by the use of 
MPWC. A seasonal closure may only offer protection to one or two 
specific species, but not to the other 33-marine mammals or the 
hundreds of bird and fish species found throughout the Sanctuary on a 
year-around basis. Although the concentration of certain species does 
occur on a seasonal basis, the seasonal overlay among species is 
continuous throughout the year and a seasonal prohibition would not 
provide full protection.
    A seasonal ban will also not adequately address the other concerns 
related to MPWC use in the Sanctuary such as noise, conflicts with 
other Sanctuary users, turbidity, and water quality concerns related to 
2-stroke engines. A more detailed explanation of these concerns is 
found in response to comment numbers 7, 8, and 6.
    Comment 4: MPWC threaten and disturb wildlife in the Sanctuary.
    Response: NOAA agrees. 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 
motor boats 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 
motor boats. Levels of disturbance were further increased when MPWC 
were used at high speeds or outside of established boating channels 
(Burger, 1998).
    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. 
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). Documented 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 5: MPWC disturb the tranquility of the Sanctuary.
    Response: NOAA agrees. The use of MPWC can conflict with other 
users of the Sanctuary who use it solely for aesthetic purposes.
    Comment 6: MPWC cause ``unacceptable'' pollution as a result of 
their two-stroke engines.
    Response: NOAA agrees. MPWC are powered by a jet-propelled system 
that typically involves a two-stroke engine with an exhaust expulsion 
system that vents directly into the water. The two-stroke engines found 
on the vast majority of MPWC in the United States discharge more of 
their fuel (ranging from 10% to more than 50% of the unburned fuel/oil 
mixture, depending on manufacturing conditions and operating variables) 
than four-stroke engines found on many 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 (VOCs) (by as much as a factor of 10) into the water than 
four-stroke engines (Juttner et al., 1995; Tjarnlund et al., 1995). 
These emissions can have significant adverse impacts in many areas of 
the Sanctuary, particularly shallow nearshore coastal areas and 
estuaries.
    Comment 7: NOAA proposes to ban MPWC because their two-stroke 
engines release pollutants into the water even though other 
recreational vessels with two-stoke engines are free to operate 
throughout the Sanctuary.
    Response: NOAA disagrees. NOAA acknowledges that motorized 
watercraft with two-stroke engines other than MPWC are not restricted 
in the Sanctuary but, as indicated in response to comment 6, there are 
negative water quality impacts associated with MPWC's engine exhaust 
and subsequent discharge of VOCs into the water column. However, the 
proposed ban on MPWC two-stroke engines is not the sole reason why NOAA 
proposes a complete ban of MPWC throughout the Sanctuary. There are 
several factors NOAA has taken into consideration while proposing this 
ban of MPWC that cumulatively, indicate that a total ban is necessary 
including wildlife disturbance, user conflicts, and safety concerns (as 
detailed in the responses to comments 4, 8, 9, and 17). Other 
watercraft that are propelled by two-stroke engines do not have the 
same level of cumulative adverse impacts to Sanctuary resources as that 
of MPWC, therefore NOAA is not proposing a total ban of their use in 
Sanctuary waters.
    Comment 8: MPWC cause ``unacceptable'' noise levels, that disturb 
marine wildlife (marine mammals, seabirds) as well as human visitors to 
the Sanctuary.
    Response: NOAA agrees. 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) (Woolley, 1996) and appear 
to be quieter underwater (Gentry, 1996). 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). In addition, 
many MPWC operators alter or remove the mufflers to enhance craft 
performance, thus increasing the noise generated by their craft.
    Comment 9: MPWC operation presents a user conflict with other 
Sanctuary users and poses a threat to anyone engaging in other 
recreational activities.
    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 proposed rule noted that MPWC were interfering with, 
and often jeopardizing the well-being of, swimmers, kayakers, 
canoeists, and other recreational boaters and users of the Sanctuary. 
MPWC have been involved in numerous accidents, and thus pose a hazard 
to other water users. Although MPWC make up approximately 11% of 
vessels registered in the country (U.S. Dept. of Interior, 1998c), 
Coast Guard statistics show that in 1996, 36% of all watercraft 
involved in accidents were MPWC (U.S. Coast Guard, 1999). While this 
accident data is not site specific to the Sanctuary, it does 
demonstrate that the potential for

[[Page 46949]]

accidents does exist and that MPWC have a higher ratio of accidents 
than other motorized watercraft.
    Additional comments received 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.
    Comment 10: A partial ban on MPWC use would be impossible to 
enforce.
    Response: NOAA agrees. A partial ban at 100 yards, 1000 yards, or 
event three nautical miles would be difficult to enforce. In a 
tentative ruling issued September 13, 2000, the Superior Court in Marin 
County rejected the County's ordinance prohibiting MPWC operation was 
rejected by the Marin for being vague, in part because of the 
difficulty in knowing where MPWC could be operated in the County's 
jurisdiction out to three-miles. Before the Marin County ban, there was 
difficulty enforcing the Point Reyes National Seashore's one quarter 
mile restriction.
    Despite local rider's attempt at self-policing and their efforts to 
create no ride zones, violations were chronic and regulations were hard 
to enforce. A total prohibition will provide a clear and simple 
enforcement rule within the GFNMS, will avoid confusion and will avoid 
the cost of installation and maintenance of a delineation system.
    Delineation of MPWC zones with buoys is in place at the Monterey 
Bay National Marine Sanctuary (MBNMS) and it is needed for enforcement 
because MPWC lack standard navigational equipment and chart storage. 
MBNMS's regulation delineates four near harbor areas and bouys are in 
place to mark the boundary. The Florida Keys National Marine Sanctuary 
(FKNMS) does not have a specific MPWC regulation, however there are a 
number of small areas that are closed to motorized vessels. These areas 
are delineated by spar buoys or 30 inch buoys every 400 to 600 feet. 
The annual cost of maintenance and placement of each buoy is $250-$500 
respectively (Upper Keys Manager, Lt.Cdr. David Savage, pers.com. 
October 3, 2000). These buoys are placed in shallow (1-2 fathoms 
maximum 12 feet) water. Because of weather and sea conditions, the 
GFNMS would require a 48 inch or larger buoys placed at a depth of 15-
41 fathoms (90-246 feet) at a cost of $2,000 to $5,000 each. These 
larger buoys are needed because of ground tackle requirements for sea 
conditions. In addition, if the GFNMS were to place buoys 1,200 feet 
apart (double the width of the FKNMS placement), a minimum of 4,000 
buoys would be required to indicate channels and closed areas (5 buoys 
per nautical mile to mark 80 nautical miles).
    Comment 11: NOAA denied commentors due process because public 
comment meetings were in remote locations and electronic comments were 
not accepted.
    Response: NOAA disagrees. As part of this process, NOAA held one 
public scoping meeting and two public hearings. All of the meetings 
were held at the Bear Valley Visitor Center of the Point Reyes National 
Seashore. This is a central location for the GFNMS and one visited by 
over 1,300,000 people annually. It is well known and easy to find. In 
addition, maps to the Center were provided upon request. A private 
meeting with the industry representatives was also held. Over three 
months of time was provided for written comments in this and the 
previous proposed rule.
    NOAA believes that it has provided sufficient opportunities for 
members of the public to comment on this issue and has fulfilled all 
public notice requirements. NOAA is not required to accept electronic 
comments and does not yet have a formal policy on this issue.
    Comment 12: NOAA's conclusions are based on inaccurate and outdated 
information.
    Response: NOAA has considered the most current information 
available in its deliberations regarding the regulation of MPWC in the 
Sanctuary. Much of the information is from 1997 and 1998 data. The 
sources are reliable, well-known and respected in their fields, and 
have knowledge and experience in the Gulf of Farallones National Marine 
Sanctuary. Please refer to source citations located in the Bibliography 
of the Environmental Assessment.
    Comment 13: Prohibiting MPWC operation without prohibiting 
operation of other motorized craft is unfair discrimination.
    Response: NOAA disagrees. No other vessel type has demonstrated so 
many wide and varied detrimental aspects as MPWC. These aspects 
include: noise disturbance to wildlife and humans; discharge of VOC 
pollution and water quality impacts; physical disturbance to marine 
mammal, bird, and fish from frequent and erratic movement and fast 
speeds; and interference with other Sanctuary users (swimmers, 
kayakers, canoeists, other boaters, sailors, hikers, beach goers, whale 
and bird watchers, and people looking for a wilderness experience and 
aesthetic appreciation). These impacts are supported by scientific 
information data and provide justification as to why a ban is 
necessary. NOAA has not received comments or complaints on these types 
of cumulative disturbances caused by other vessel types.
    Comment 14: NOAA failed to address the current regulations in the 
Hawaiian Islands Humpback Whale and Florida Keys National Marine 
Sanctuaries.
    Response: NOAA disagrees. NOAA believes that an accurate comparison 
between the Gulf of the Farallones and the Hawaiian Islands Humpback 
Whale and Florida Keys National Marine Sanctuaries cannot be made 
because none of these three Sanctuaries have similar climates, 
hydrodynamics, boundary and shoreline delineation, or species 
composition.
    The Hawaiian Islands Humpback Whale National Marine Sanctuary 
protects a single species and it is not required to address the 
complexity of the species composition at GFNMS, which has 33 marine 
mammal, 400 bird, and hundreds of fish species. The Florida Keys 
National Marine Sanctuary (FKNMS) does have a current restriction on 
MPWC use within 100 yards of residential shoreline to a no-wake speed 
(including other motorized vessels). However, in October 1999, the 
FKNMS Sanctuary Advisory Council decided that these strategies had been 
ineffective and voted to advise the Sanctuary managers to consider new 
regulations that could result in additional restrictions to MPWC in 
Florida.
    NOAA believes regulations for each National Marine Sanctuary must 
be considered on a case-by-case basis, taking into account the unique 
features of each location, including living resources, physical 
characteristics, and use.
    Comment 15: NOAA has changed the regulations as a result of 
pressure from MPWC opponents.
    Response: NOAA disagrees. NOAA has considered all information 
carefully and in an unbiased manner based on the information found in 
the scientific literature, public documents, and comments by MPWC users 
and nonusers alike. Based upon new and recent regulations for areas 
with contiguous and overlapping boundaries, the latest biological 
information on impacts of MPWC in offshore areas, as well as conflicts 
with other Sanctuary users, NOAA has determined that a Sanctuary-wide 
prohibition on the operation of MPWC is necessary and the best way to 
adequately protect the Sanctuary's resources. NOAA's initial proposal 
of a 1,000 yard buffer would have only protected 5% of the Sanctuary 
from the impacts of MPWC operation, leaving the remaining 95% of the 
Sanctuary at risk. The complete ban

[[Page 46950]]

of MPWC in GFNMS will ensure full protection to marine resource that 
could otherwise be affected.
    The May 22, 2000, Federal Register notice for GFNMS withdrawal and 
notice of proposed rule, specifically states that the action was taken 
in response to the petition from the Environmental Action Committee of 
West Marin and to comments received in response to a proposed rule that 
NOAA published on April 23, 1999. Additional information on effects of 
MPWC to wildlife in GFNMS has been gathered since the original proposed 
ban of 1,000 yards from shore. As outlined in the May 22, 2000 notice, 
observations in July 1999 indicate that blue whales which had 
previously only been seen offshore at depths of 100 fathoms or more, 
were observed closer to shore at 40 to 50 fathoms and one sighting at 
20 fathoms. These offshore observations of Gray whales and other 
species such as blue whales, guadalupe fur seals, and humpback whales, 
all indicate that if the ban were restricted to 1,000 yards the 
potential for impacts at these offshore distances would not be 
decreased.
    Other reasons as to why NOAA has proposed a complete ban are 
delineation and enforcement. As discussed in response to comment 10, 
NOAA's initial proposed ban of 1,000 yards from shore would be 
difficult and costly to enforce in terms of personnel and buoy 
installation and maintenance.
    Comment 16: NOAA has failed to consider alternatives to a total ban 
of MPWC in the Sanctuary.
    Response: NOAA disagrees. NOAA considered all alternatives 
described in the Environmental Assessment, which includes a description 
of the alternative, a discussion of its environmental and socioeconomic 
impacts, and an analysis of the alternative. The alternatives found in 
the Environmental Assessment include: no action; creation of zones for 
the operation of MPWC; banning operation of MPWC from the nearshore 
area of the Sanctuary; prohibition of operation of MPWC in the entire 
Sanctuary; and regulation of all recreational vessel traffic in the 
Sanctuary. NOAA believes that it has developed its regulations fairly 
and without bias based upon scientific literature, public documents, 
and comments from MPWC users, nonusers, local citizens, and the MPWC 
industry.
    Comment 17: NOAA cannot rationally prohibit operation of MPWC use 
throughout GFNMS on the basis of potential conflicts with recreational 
users concentrated in ``nearshore waters.''
    Response: NOAA is not prohibiting MPWC use solely because of user 
conflicts. As explained in response to comments 4, 6, and 18, other 
concerns associated with the use of MPWC in the Sanctuary support 
NOAA's conclusion that operation of MPWC should be prohibited 
throughout the Sanctuary. While MPWC do interfere with nearshore uses 
such as swimming, canoeing, and kayaking and cause adverse impacts to 
nearshore wildlife and habitats, the impacts that MPWC can have on 
wildlife and water quality in offshore areas is also part of the basis 
for this action.
    Comment 18: NOAA's own data from the National Marine Fisheries 
Service indicate that MPWC operation does not pose a risk to marine 
mammals.
    Response: NOAA disagrees. The data cited from the Southwest Region 
of the National Marine Fisheries Service is based only on animals that 
have washed ashore in a dead or dying state and do not address negative 
impacts aside from mortality. Morbidity is not the only measure of 
effects on a marine mammal. It is detrimental to marine mammals, many 
of which are endangered or threatened, to alter their behavior (their 
feeding activities and subsequently their survivability) in a 
significant manner. A comment in support of the prohibition indicated 
that in one area Gray whales are seen frequently in proximity of other 
vessels and human activity but are never seen when MPWCs are present. A 
comment opposed to the prohibition indicated that MPWCs have been 
operated in the same area and whales have never been observed. Both 
statements support the contention that Gray whales alter their behavior 
to avoid MPWCs. Altering animal behavior is contrary to the goals and 
objectives of the Sanctuary.
    As indicated in the EA, researchers have reported that MPWC may be 
disruptive to marine mammals because MPWC change speed and direction 
frequently, are unpredictable, and may transit the same area repeatedly 
in a short period of time. It is true that MPWC lack low-frequency long 
distance sounds underwater. However, this does not mean that marine 
mammals are not adversely impacted by the MPWC noise. Whether the noise 
is heard at close range or farther away, it still will disturb marine 
mammals which may cause shifts in activity patterns, site abandonment, 
or avoidance. Since marine mammals are limited to close range detection 
of MPWC noise and activity there is a greater chance of collision.
    Comment 19: NOAA's reference to Coast Guard statistics regarding 
boating accidents nationally has little relevance given the absence of 
any reported MPWC accidents in the GFNMS.
    Response: NOAA disagrees. 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). While this accident data is not site specific 
to the Sanctuary, it does demonstrate that the potential for accidents 
does exist and that MPWC have a higher ratio of accidents than other 
motorized watercraft.
    Comment 20: NOAA is unconvincing in its attempt to suggest that the 
recent efforts by Marin County to ban MPWC use within three miles of 
shore necessitate a ban by NOAA throughout the Sanctuary. No-wake zones 
could be established.
    Response: As explained in the response to comment 10, the Marin 
County prohibition was recently overturned in a tentative ruling by the 
Marin Superior Court. The County is not enforcing the ordinance at this 
time. Whether the County's ordinance is implemented or not, NOAA is 
required to protect the marine resources in the GFNMS. NOAA believes 
that a total ban throughout the Sanctuary is necessary to ensure marine 
resource protection.
    No-wake zones would only provide protection in limited areas but 
would be very expensive because they would require marker buoys. 
Sanctuary resources outside of these zones would still be at risk from 
the effects of MPWC operation.
    Comment 21: NOAA continues to advance factual inaccuracies, 
unfounded assertions, illogical conclusions to support the prohibition. 
NOAA references studies regarding disturbance of waterfowl and seabirds 
as a reason to ban MPWC use throughout the entire Sanctuary even though 
these sources recommend creation of a ``buffer zone.'' NOAA's assertion 
that MPWC may be perceived as being louder than other boats provides no 
potential basis for a ban extending throughout the entire Sanctuary.
    Response: NOAA disagrees. NOAA's decision to prohibit MPWC was 
carefully considered and is scientifically defensible. Specifically, 
NOAA has referenced numerous studies related to MPWC impacts to all 
types of wildlife (marine mammals, birds, and pinnepeds) found within 
the Sanctuary's boundaries, not just

[[Page 46951]]

waterfowl and seabirds. While studies on waterfowl and seabird 
recommend the creation of a buffer to reconcile the impacts of MPWC, 
buffer zones will not sufficiently address the other concerns related 
to MPWC use throughout the sanctuary such as water pollution, user 
conflicts, and other wildlife and human disturbance outside of the 
zones.
    Comment 22: MPWC use in the Sanctuary is decreasing.
    Response: NOAA disagrees. With the closure of other areas within 
and around the Sanctuary, such as GGNRA and PRNS, it is unlikely that 
use in the Sanctuary will decrease. NOAA is not aware of any data 
indicating that MPWC use is decreasing in GFNMS, other than statements 
from MPWC users and use trends nationally, which are documented in the 
United States Coast Guard report (1999).
    Comment 23: NOAA's proposed regulation is arbitrary because it 
would prohibit MPWC operation because of their speed.
    Response: NOAA disagrees. As stated in earlier responses, MPWCs 
have not been proposed to be banned in the Sanctuary because of any 
single reason such as speed. Speed is one of many aspects of MPWCs, 
including water quality effects, noise disturbance to humans and 
wildlife, and user conflicts, that NOAA considered.

III. Summary of Regulations

    The regulations for the GFNMS are amended as follows:
    The addition to 15 CFR 922.82(a) prohibits operation of MPWC in the 
Sanctuary. The prohibition includes 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.
    The addition to 15 CFR 922.81 provides a definition of ``motorized 
personal watercraft.'' ``Motorized personal watercraft'' will be 
defined 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''.

IV. Miscellaneous Rulemaking Requirements

Executive Order 12866: Regulatory Impact

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

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration when this rule was proposed that if it was adopted as 
proposed it would not have a significant economic impact on a 
substantial number of small entities. No comments were received on the 
economic impact of the proposed rule on small entities and, therefore, 
the basis for the certification has not changed.
    Accordingly, a Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act

    This 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.

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.

Alan Neuschatz,
Chief Financial Officer/Chief Administrative Officer, Ocean Services 
and Coastal Zone Management.

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

PART 922, NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

    1. The authority citation for Part 922 continues to read as 
follows:

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

    2. 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.

    3. Section 922.82 is amended by adding new paragraph (a)(7) as 
follows:


Sec. 922.82  Prohibited or otherwise regulated activities.

    (a) * * *
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft for emergency search and 
rescue mission or law enforcement operations (other than routine 
training activities) carried out by National Park Service, U.S. Coast 
Guard, Fire or Police Departments or other Federal, State or local 
jurisdictions.
* * * * *
[FR Doc. 01-22637 Filed 9-7-01; 8:45 am]
BILLING CODE 3510-08-P