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

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]

------------------------------------------------------------------------

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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.

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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]

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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.

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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

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Blue whale..................... Balaenoptera musculus.. FE

Humpback whale................. Magaptera noveangliae.. FE

Sei whale...................... Balaenoptera robustus.. FE

Sperm whale.................... Physeter macrocphalus.. FE

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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.

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(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.

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39, 313-316.

[[Page 19952]]

U.S. Coast Guard. 1999. Recreational Boating Accident Statistics

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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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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