32048 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules

Aviation Administration, 901 Locust,

Kansas City, MO 64106; telephone:

(816) 329–2525.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested parties are invited to

participate in this proposed rulemaking

by submitting such written data, views,

or arguments as they may desire.

Comments that provide the factual basis

supporting the views and suggestions

presented are particularly helpful in

developing reasoned regulatory

decisions on the proposal. Comments

are specifically invited on the overall

regulatory, economic, environmental,

and energy-related aspects of the

proposal. Communications should

identify the airspace docket number and

be submitted in triplicate to the address

listed above. Commenters wishing the

FAA to acknowledge receipt of their

comments on this notice must submit

with those comments a self-addressed,

stamped postcard on which the

following statement is made:

‘‘Comments to Airspace Docket No. 00–

ACE–10.’’ The postcard will be date/

time stamped and returned to the

commenter. All communications

received on or before the closing date

for comments will be considered before

taking action on the proposed rule. The

proposal contained in this notice may

be changed in light of comments

received. All comments submitted will

be available for examination in the

Rules Docket both before and after the

closing date for comments. A report

summarizing each substantive public

contact with FAA personnel concerned

with this rulemaking will be filed in the

docket.

Availability of NPRMs

Any person may obtain a copy of this

Notice of Proposed Rulemaking (NPRM)

by submitting a request to the Federal

Aviation Administration, Office of

Public Affairs, Attention: Public Inquiry

Center, APA–230, 800 Independence

Avenue, SW, Washington, DC 20591, or

by calling (202) 267–3484.

Communications must identify the

notice number of this NPRM. Persons

interested in being placed on a mailing

list for future NPRMs should also

request a copy of Advisory Circular No.

11–22A, which describes the

procedures.

The Proposal

The FAA is considering an

amendment to 14 CFR part 71 to

establish Class E airspace at Lamoni

Municipal Airport, Lamoni, IA. The

FAA has developed RNAV RWY 17 and

RNAV RWY 35 SIAPs to serve the

Lamoni Municipal Airport, Lamoni, IA.

Controlled airspace extending upward

from 700 feet AGL is needed to contain

aircraft executing these SIAPs. The

intended effect of this action is to

provide segregation of aircraft operating

under Instrument Flight Rules (IFR)

from aircraft operating in visual weather

conditions. The area would be depicted

on appropriate aeronautical charts

thereby enabling pilots to

circumnavigate the area or otherwise

comply with IFR procedures. Class E

airspace designations for airspace areas

extending upward from 700 feet or more

above the surface of the earth are

published in paragraph 6005 of FAA

Order 7400.9G, dated September 10,

1999, and effective September 16, 1999,

which is incorporated by reference in 14

CFR 71.1. The Class E airspace

designation listed in this document

would be published subsequently in the

Order.

The FAA has determined that this

proposed regulation only involves an

established body of technical

regulations for which frequent and

routine amendments are necessary to

keep them operationally current.

Therefore, this proposed regulation: (1)

Is not a ‘‘significant regulatory action’’

under Executive Order 12866; (2) is not

a ‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

Regulatory Evaluation as the anticipated

impact is so minimal. Since this is a

routine matter that will only affect air

traffic procedures and air navigation, it

is certified that this proposed rule will

not have a significant economic impact

on a substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

The Proposed Amendment

Accordingly, pursuant to the

authority delegated to me, the Federal

Aviation Administration proposed to

amend 14 CFR part 71 as follows:

PART 71—DESIGNATION OF CLASS A,

CLASS B, CLASS C, CLASS D, AND

CLASS E AIRSPACE AREAS;

AIRWAYS; ROUTES; AND REPORTING

POINTS

1. The authority citation for part 71

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of Federal Aviation

Administration Order 7400.9G, Airspace

Designations and Reporting Points,

dated September 10, 1999, and effective

September 16, 1999, is amended as

follows:

Paragraph 6005 Class E airspace areas

extending upward from 700 feet or more

above the surface of the earth.

* * * * *

ACE IA E5 Lamoni, IA [New]

Lamoni Municipal Airport, IA

(Lat. 40°37′59′′ N., long. 93°54′08′′ W.)

That airspace extending upward from 700

feet above the surface within a 6.3-mile

radius of Lamoni Municipal Airport.

* * * * *

Issued in Kansas City, MO, on May 9, 2000.

Herman J. Lyons, Jr.,

Manager, Air Traffic Division, Central Region.

[FR Doc. 00–12822 Filed 5–19–00; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 922

[Docket No. 970626156–0125–03]

RIN 0648–AK01

Regulation of the Operation of

Motorized Personal Watercraft in the

Gulf of the Farallones National Marine

Sanctuary

AGENCY: Marine Sanctuaries 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; Notice of

withdrawal; Notice of availability of

Draft Environmental Assessment.

SUMMARY: NOAA proposes to amend 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

proposed action responds to a petition

from the Environmental Action

Committee (EAC) of West Marin,

California.

This document also responds to

comments received in response to a

proposed rule that NOAA published on

April 23, 1999, concerning operation of

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules 32049

MPWC in the Sanctuary and a public

hearing held June 2, 1999, on the

proposed rule. This document

withdraws and replaces that proposed

rule that proposed to prohibit the

operation of MPWC within the

nearshore areas of the Sanctuary. 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 a Draft Environmental Assessment

(DEA) on the proposed rule.

DATES: Comments on the proposed rule

or DEA must be received by June 21,

2000. A public hearing on this proposed

rule will be held on June 12, 2000 at

6:30 p.m. at the address listed below.

ADDRESSES: Comments should be sent to

Ed Ueber, Sanctuary Manager, Gulf of

the Farallones National Marine

Sanctuary, Ft. Mason, Building 201, San

Francisco, California 94123; fax: (415)

561–6616. Comments received will be

available for public inspection at the

above address. A public hearing on the

proposed rule will be held at the Bear

Valley Visitor’s Center at the Point

Reyes National Seashore, Inverness,

California, on June 12, 2000 at 6:30 p.m.

The DEA may be obtained from the

Sanctuary address indicated above.

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 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% 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 fiftythree (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 by the

proprietors of Lawson’s Landing, the

primary MPWC 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% 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) Waterbased 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 geared toward

protecting Sanctuary resources and

minimizing user conflict in the

nearshore areas. NOAA received 53

32050 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules

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

are provided below.

The waters of the Sanctuary are home

to a rich diversity of marine biota and

provide critical habitat for seabirds,

marine mammals, fishes, invertebrates,

sea turtles and marine flora. The

importance and uniqueness of

Sanctuary waters has 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

desigantion of Bolinas Lagoon as a

RAMSAR site (the Convention for

Wetlands of International Significance).

The National Marine Fisheries Service

is considering areas within the

Sanctuary for designation as Essential

Fish Habitat as mandated by the

Magnuson-Stevens Fisheries

Conservation and Management Act

(James Bybee, NOAA, pers. comm., 7

January 2000).

Among the hundreds of bird species

that reside in or migrate through the

Sanctuary, many species are

endangered, threatened or of special

concern. These include the following

species, which are found in the

Sanctuary and on the Farallon Islandds:

(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 leucopareia, FT

Barrow’s Goldeneye, Bucephala

islandica, CSC

Common Loon, Gavia immer, CSC

Double-crested Cormorant, Palacrocorax

auritus, CSC

Harlequin Duck, Histrionicus

histrionicus, CSC

Marbled Murrelet, Brachyramphus

marmoratus, FT/SE

Aerialists [gulls and gull-like]

American White Pelican, Pelecanus

erythorhynchos, CSC

Ashy Storm Petrel, Oceanodroma

homochroa, CSC

California Brown, Pelican Pelecanus

occidentalis californicus, FE/SE

California Gull, Larus californicus, CSC

California Least Tern, Sterna antillarum

browni, FE/SE

Elegant Tern, Sterna elegant, CSC

Short-tailed Albatross, Diomedea

albatrus, FE

Long-legged waders [e.g., herons,

cranes]

California Black Rail, Laterallus

jamaicensis corurniculus, ST

Smaller waders [e.g., plovers,

sandpipers]

Long-billed Curlew, Numenius

americanus, CSC

Western Snowy Plover, Charadrius

alexandrinus niv., FT/CSC

Birds of prey [hawks, eagles, owls]

Bald Eagle check status, Halliaeetus

leucocephalus, FT

Ferruginous Hawk, Buteo regalis, CSC

Osprey, Pandion haliaetus, CSC

Prairie Falcon, Falco mexicanus, CSC

Peregrine Falcon, Falco peregrinus, FE

Passerine birds [perching]

Saltmarsh common yellowthroat,

Geothlypis trichas sinuosa, CSC

There are at least twelve critical

marine band 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

comprises the largest concentration of

breeding marine birds in the continental

U.S. During nesting and rearing of

young, these sea birds are especially

dependent on the Sanctuary’s offshore

waters for food.

Thirty-free species of marine

mammals have been observed in the

Sanctuary including one mustelid, six

species of pinnipeds 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 Stellar sea lion,

including the nearshore areas around

Point Reyes, the northern half of

Tomales Bay and areas adjacent to the

Farallon Islands. 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. Some individuals

have acclimated to conditions in the

Sanctuary and are now year round

residents. In 1999, unprecedented

numbers of gray whales were foraging in

Bodega Bay. 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 pers.

comm. July 1999). It is imperative that

these animals, be protected in an area

which may be providing new

opportunity for the species survival

(Anonymous 1990).

Other populations of marine

mammals are also recovering after years

of human exploitation. As populations

begin to rebound, individuals are

expanding the populations distribution

back into historic ranges. In many

instances, such as the gray whales, sea

otters, northern fur seals and elephant

seals, animals are using feeding areas

and haul outs that have not been

utilized for decades. It is important for

the Sanctuary to provide habitat that

was historically available and allow

these populations to return to their

natural abundance and distribution

levels. 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

townsendi, FT/ST

Steller (Northern) sea lion, Eumetopias

jubatus, FT

Mustelids

Southern sea otter, Enhydra lutris

nereis, FT

Cetaceans

Blue whale, Balaenoptera musculus, FE

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules 32051

Humpback whale, Magaptera

noveangliae, FE

Sei whale, Balaenoptera robustus, FE

Sperm whale, Physeter macrocphalus,

FE

Fin whale, Balaenoptera physalus, FE

Sea Turtles

Green turtle, Chelonia mydas, FE

Leatherback turtle, Dermochelys

coriacea, FE

Loggerhead turtle, Caretta caretta, FE

Olive (Pacific) ridley, Lepidochelys

olivacea, FE

Because of its unique geology and

geography, the biological diversity

found within the Gulf of the Farallones

National Marine Sanctuary 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 counterclockwise 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 up 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 for California’s harbor seals.

It is a destination feeding area for

protected white sharks (Klimley and

Ainley 1996) and endangered blue and

humpback whales in the summer and

fall (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’s

offshore habitats. From spring through

late summer, krill swarm in the surface

layers of the ocean (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

they are concentrated in these surface

aggregations.

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, provide diverse

habitats including intertidal mudflats,

send 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 prevelant 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

annually spawn on the eelgrass beds of

Tomales Bay (Fox 1997). The shallow

protected bays and estuaries are also

important habitat for anadromus fish,

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.

The nearshore coastal waters of the

Sanctuary are sensitive biological

habitats 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 the areas most heavily used for

recreation. Areas such as Bodega Bay

and Tomales Bay are used for sailing,

canoeing, rowing, kayaking and

swimming. These activities are often

conducted 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.

The offshore waters of the Sanctuary

provide entrance and egress for

commercial shipping traffic using ports

in San Francisco Bay. Tankers and

container ships traverse the Sanctuary

in shipping lanes, which funnel traffic

in northbound and southbound

directions. These offshore waters also

support active sport and commercial

fisheries. Small skiffs and larger

commercial vessels move at constant

speeds or drift through the Sanctuary

waters fishing for salmon and albacore.

Rockfish and urchin boats fish high

spots and reefs closer to shore. On the

softer sediment of the continental shelf,

crab fishermen lay out rows of crab pots

each one identified with a buoy at the

surface. All of these activities have gear

in the water that extends some distance

from the boat and the gear is not readily

apparent to the casual observer. Most

fishermen are aware of how other gear

types are deployed and operated. In

cases where the potential for conflict

arises, most boats operating offshore

have navigation equipment and radios

to communicate with each other.

Commercial whale watching and

seabird operators regularly use the

offshore area of the Sanctuary for

wildlife viewing opportunities. These

offshore areas provide important habitat

for feeding blue whales, humpback

whales, gray whales, 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.

Ten percent of California’s threatened

coho salmon population use the outer

Sanctuary and Tomales Bay during the

ocean phase of their life history before

returning to Lagaunitas creek and other

creeks on the spawning migration which

completes their life cycle. Newly listed

populations of chinook salmon also use

the Gulf of the Farallons as adults before

returning to the Sacramento River

drainage to spawn. Because of the

significant biological diversity found

within the Sanctuary including 11

federally endangered and 7 threatened

species of birds, fish, turtles, and marine

mammals and the importance of

Sanctuary habitats for maintaining these

populations, NOAA as the public

trustee agency for these resources takes

a precautionary approach to their

protection. The potential for adverse

environmental impacts from MPWC

operation poses an unacceptable risk to

the health of these resources, and

because of the high potential for user

conflicts, NOAA has decided to prohibit

MPWC from operating within the

boundaries of the GFNMS, including

waters surrounding the Farallon Islands.

The restricted areas include Drakes Bay,

Tomales Bay, Bolinas Lagoon, Estero

Americano, Estero de San Antonio,

Bodega Bay, and all other areas within

Sanctuary boundary.

As of 1 November 1998, launching

MPWC from Point Reyes National

Seashore (PRNS) of Golden Gate

National Recreation Area (GGNRA) was

prohibited (U.S. Dept. of Interior 1998 a

& b). On 25 October 1999, after NOAA

published its April 23, 1999 proposed

rule, Marine County banned the use of

MPWC within three statute miles of the

ocean shore line as well as all tributaries

flowing into the ocean up to seven miles

32052 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules

1On 14 January 2000 the California Coastal

Commission (CCC) approved, on a 90-day

emergency basis, the Marin County ban, which the

CCC subsequently extended for an additional 90

days on 17 March 2000. The CCC will likely vote

on whether to permanently approve the Marin

County rule in May, 2000.

inland.1 As a result of these actions,

areas of the PRNS, GGNRA and Marin

County, which overlap with Sanctuary

boundaries are now off limits to MPWC.

The PRNS, GGNRA and the county of

Marin decided that continued use of

this area by MPWC would have resulted

in an unacceptable risk to sensitive

resources in the area.

Historically, there were four MPWC

launch sites used to access Sanctuary

waters—Lawson’s Landing at Dillon

Beach, Millerton Point Park, Inverness,

and Bodega Harbor. As of 1 November

1998, launching MPWC from Golden

Gate National Recreation Area (GGNRA)

or Point Reyes National Seashore

(PRNS) is prohibited (U.S. Dept. of

Interior, 1998 a & b). Millerton Point

Park and Inverness are within GGNRA

and PRNS boundaries, respectively, and

therefore can no longer be used. As a

result of the Marin County ordinance,

Lawson’s Landing is no longer a legal

launch site for MPWC, and Tomales Bay

and portions of Bodega Bay are now off

limits to MPWC. Also, all coastal waters

within three miles of shore in Marin

County are off limits to MPWC

operation. This area overlays the eastern

edge of the GFNMS. The only remaining

legal MPWC launch site into the

Sanctuary is now from Bodega Harbor in

Sonoma County, which is not within the

jurisdictional boundary of the Marin

County ordinance.

With Marin County’s recent action

banning MPWC operation (Marin

County ordinance 3302) within three

miles of its shore, if NOAA were to

maintain the previously proposed 1000

yard buffer, MPWC would be able to

exit Bodega Harbor and operate only in

a 0.4 square mile area in Bodega Bay.

This area lies in the vessel access route

in front of the entrance to Bodega

Harbor creating a potential hazard for

vessels going in and out of Bodega

Harbor. Fog and low visibility are a part

of the typical weather pattern for this

area during most of the year. If MPWC

entered the Sanctuary from a vessel or

from a launch site north of the

Sanctuary such as the Salmon Creek

area (four miles south) they would be

operating in the gray whale migration

corridor and in important feeding and

resting areas for marine mammals and

seabirds. This transit from the north into

the Sanctuary would also take them

through a state marine preserve at

Horseshoe Cove which is also

designated an Area of Special Biological

Significance (ABS). Through only a

small portion of the ABS is in the

Sanctuary, within the 1000 yard zone,

such activity by MPWC could have

negative effects on Sanctuary resources.

If the Sanctuary takes no action,

MPWC could depart from Bodega

Habor. After leaving the harbor, they

could turn due west, to avoid Marin

County’s restricted area, and pass over

the dangerous Bodega rock shoal to get

offshore. Because of the shallow water

over the shoal, ocean swells build and

break unpredictably in this area. In the

past, several boats have capsized and

people have died in this unpredictable

and dangerous area. Beyond the shoal,

MPWC could exit the Sanctuary at

Bodega Head by going north or get into

the Sanctuary’s offshore waters by

continuing west. Both require passing in

the vicinity of the state’s ABS

mentioned earlier. MPWC would then

be operating in the same biologically

rich area including the gray whale

migration corridor.

Another option would be for MPWC

to use the nearshore shore areas in

Bodega Bay. Because of the Marin

County ban, MPWC users would be

restricted to the northern crescent of

Bodega Bay adjacent to the county

recreational area at Doran Beach. Doran

Beach offers camping and attracts large

weekend crowds on hot days. The

protected nature of Doran Beach, in the

lee of Bodega Head makes it a popular

spot for swimming and other water

sport activities. Recreational fisherman

in small skiffs use this area for

sportfishing and crabbing. Two public

launch sites in Bodega Harbor offer easy

access to these protecting nearshore

waters. On windy days, the nearshore

area off Doran Beach is a popular spot

for windsurfers and sailboats. Operation

of MPWC in this area increases the

potential for conflict with other

recreational users. The ability of MPWC

to operate very close to shore (due to the

shallow draft) and move in

unpredictable ways may be detrimental

to the safety and aesthetic experience of

those conducting more benign

recreational activities. NOAA believes

that MPWC operation in offshore and

nearshore areas of the Sanctuary creates

a user conflict that can be avoided by

prohibiting the use of MPWC in the

Sanctuary. Operating MPWC in the

nearshore area of Bodega Bay also

places MPWC in an environmentally

sensitive habitat close to observed gray

whale feeding areas.

After considering the comments in

response to NOAA’s April 23, 1999,

proposed rule, reviewing new MPWC

regulations for agencies with contiguous

and overlapping jurisdictional

boundaries, and considering the

increased sitings for federally

threatened southern sea otters and

numbers of gray whales feeding in

Bodega Bay, new listings for salmon and

steelhead, and requirements for the

protection of the Sanctuary’s biological

resources, the Sanctuary has determined

that a total ban on MPWC is necessary

to adequately protect Sanctuary

resources. This proposed rule would

ensure that Sanctuary resources and

qualities are not adversely impacted and

would help avoid conflicts among

various users in the Sanctuary. A total

ban on MPWC within the GFNMS is the

most effective, safe and enforcement

regulations that ensures Sanctuary

resource protection.

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.

Against Regulations:

1. Comment: NOAA has

mischaracterized the level and pattern

of MPWC use in the Sanctuary.

NOAA Response: NOAA disagrees.

NOAA has solicited from the public and

all launchsite owners the amount of use

of MPWC in the Sanctuary. MPWC use

in the Sanctuary is increasing at a time

when marine mammal occurrence is

expanding in duration of stay, numbers,

species and location. Regulations

banning MPWC use in adjoining Marin

County, MCOSD, Point Reyes National

Marine Seashore, Golden Gate National

Recreational Area, and in the Monterey

Bay National Marine Sanctuary leave

the GFNMS resources vulnerable to

increased interactions among MPWC

and marine mammals, sea birds, shore

birds, wading birds, and other

Sanctuary resources and users.

2. Comment: NOAA’s attempt to paint

MPWCs as the primary source of fuel

emissions in air and water in the

Sanctuary is based on erroneous and

outdated assumptions.

NOAA Response: NOAA disagrees.

NOAA has not tried to paint MPWC as

the primary source of fuel emissions in

air and water in the Sanctuary, however

MPWC are a source of fuel emissions.

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 and respected

in their fields, and have knowledge and

experience in the Gulf of Farallones

National Marine Sanctuary.

3. Comment: NOAA’s suggestion that

MPWC are operated at ‘‘fast’’ speed,

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules 32053

‘‘close’’ to shore does not support the

proposed 1000 yard restriction.

NOAA Response: NOAA disagrees.

NOAA believes that these activities are

not only detrimental to marine life in

the 1000 yard zone, but to the entire

Sanctuary as well. This was arrived at

after a review of the literature,

consideration of all comments, review

of regulations of areas with contiguous

boundaries, and the latest biological

information. Therefore, NOAA agrees

that the 1000 yard restriction be

changed to a prohibition within the

Sanctuary as the only way to adequately

protect all sea birds, marine mammals

and other resources within this marine

ecosystem.

4. Comment: NOAA’s assertion that

MPWCs have disturbed the natural quiet

and aesthetic appreciation in the

‘‘nearshore’’ does not support the

proposed restriction on MPWC use.

NOAA Response: NOAA disagrees.

Noises from MPWC have been noted in

many comments and have detrimentally

affected the enjoyment of other

Sanctuary users. The MPWC Industry

cites other vessels which make similar

or greater noise than MPWC. However,

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 wakejump. These characteristics create

uneven, persistent noise apparently

more bothersome to people and

potentially to wildlife. 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 have had mufflers

removed which greatly changes their

noise output.

5. Comment: NOAA’s description of

recreational use patterns in the

Sanctuary belies its assertion that

MPWCs have interfered with other

recreational uses.

NOAA Response: NOAA disagrees.

After consideration of public comment

on this issue, including testimony at

public hearings relative to MPWC use in

or adjacent to the Sanctuary, NOAA has

determined that MPWC conflict or pose

the potential to conflict with other

recreational uses such as swimming,

kayaking, recreational fishing, boating

and wildlife viewing.

6. Comment: The referenced studies

regarding disturbance of water fowl and

seabirds do not support NOAA’s

proposed restriction on MPWC use.

NOAA Response: NOAA disagrees.

Scientific research indicates that even at

slower speeds, MPWC are a significantly

stronger source of disturbance to birds

than more conventional motorboats.

Levels of disturbance can be further

increased when MPWC are used at high

speeds or outside of established boating

channels. 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

area. These feeding flocks are ephemeral

in nature and their movement is

dictated by the availability of their prey.

After review of the literature,

consideration of all comments, review

of regulations of areas with contiguous

boundaries, and the latest biological

information, NOAA believes that the

proposed restriction of MPWCs from

coming within 1,000 yards of shore

would be inadequate to protect all sea

birds and marine mammals. Therefore,

NOAA has proposed a prohibition on

the operation of MPWC in the

Sanctuary.

7. Comment: The proposed MPWC

restriction is not necessary to protect

marine mammals.

NOAA Response: As identified in

numerous comments on NOAA’s

proposed rule, as well as in response to

NOAA’s notice of inquiry/request for

information (8/21/97), there are

significant concerns regarding the

effects of MPWCs on living resources

dependent upon the vitality of

Sanctuary resources. Marine mammals

currently at risk from MPWCs include

southern sea otter (Enhydra lutris), blue

whales (Blaenoptera musculus),

humpback whales (Megaptera

novaeangliae), gray whales (Eschrichtius

robustus), Guadalupe fur seal

(Arctocephalus townsendi), northern fur

seal (Callorhinus ursinus), Steller sea

lions (Eumetopias jubtus), and harbor

porpoise (Phocoena phocoena). All of

these animals move freely through the

Sanctuary, four are listed as threatened

or endangered.

Another recent change (1997, 1998, &

1999) has been that gray whales are

staying in GFNMS during the summer

and feeding in Bodega Bay and around

the Farallon Islands. This new behavior

in Bodega has increased from zero (0) in

1994 to at least 12 animals in 1999. Gray

whales and MPWCs use the same areas,

but whales have not been seen when

MPWCs are using the area. Other

animals of concern are Guadalupe fur

seals (threatened) which have been seen

on the Farallon Islands since 1993. This

is a new species for this area. Steller sea

lions (threatened) haul out and use the

Farallon Islands and Point Reyes area

transit all areas of the Sanctuary.

The latest (July 1999) uncommon

behavior observed was for the

endangered blue whales. These animals

have almost always been observed

offshore over depths greater than 100

fathoms. This year blue whales have

been consistently seen within the area

east of the Farallon Islands over depths

of 40 to 50 fathoms and in July 1999

blue whales were seen one nautical mile

off Chimney Rock over a depth of 20

fathoms.

Humpback whales have also been

present one to two miles off Pt. Reyes.

The observations of all these marine

mammals (four are threatened and

endangered species) were in areas

outside of 1,000 yards. These animals

require protection from MPWC in order

to allow alternatives for them as

populations move or increase and other

areas are abandoned or become fully

utilized.

As stated clearly by the MPWC

industry in their comments, existing

laws are not being followed by all

MPWC operators and are also not

enforced. Interactions of MPWCs with

marine mammals, as well as with shore

birds, wading birds and swimmers, are

already illegal under federal, state or

local statute, but still occur. A total

prohibition will provide a clear and

simple enforceable rule within the

GFNMS.

Research has demonstrated that

impacts resulting from MPWC use tend

to be concentrated locally, producing

more geographically limited, yet

potentially more severe effects than

would occur with other motorboats

which are less maneuverable than

MPWC [See DEA, Section III, Summary

of Effects of MPWC on Marine

Resources, for an expanded discussion

(Snow, 1989).]

8. Comment: NOAA is mistaken in

assuming MPWCs are predominantly

used in an ‘‘aggressive’’ manner and

points to no specific accidents or

injuries involving other sanctuary users.

NOAA Response: NOAA did not use

the term ‘‘aggressive’’ in the preamble to

the proposed regulation.

9. Comment: NOAA’s assertion that

MPWCs pose a hazard to other water

users because of a disproportionate risk

of accidents is unreliable.

NOAA Response: NOAA reviewed

published reports (U.S. Coast Guard,

1999) and considered various accident

data and statistics that showed MPWCs

are involved in a higher percentage of

accidents than other types of watercraft.

10. Comment: NOAA cannot

reasonably base its proposed prohibition

of MPWC use within 1000 yards of

32054 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules

shore on unconfirmed, and in some

cases unwritten, personal

‘‘documentation’’ and ‘‘communication’’

regarding interference with swimmers,

kayakers and other recreational users of

‘‘nearshore’’ areas.

NOAA Response: NOAA disagrees.

NOAA’s decision to ban MPWC use

within the Sanctuary is not solely based

on interference with swimmers,

kayakers and other recreational users of

nearshore area. Evidence of MPWC’s

negative impact on marine resources in

the Sanctuary is the primary concern to

NOAA. However, because of U.S. Coast

Guard statistics and reports of MPWC

jeopardizing the well-being of

swimmers, kayakers, canoeists, and

other recreational boaters and users of

nearshore areas of the Sanctuary, NOAA

has determined that a prohibition on the

operation of MPWC is the most prudent

alternative to adopt for this sanctuary.

11. Comment: Responsible users do

not chase or harass marine life; do not

disrupt residents or businesses on the

shore-line with high speed cruising;

support restrictions on speed [and all

watercraft] within 100–200 ft. of shore.

MPWC operate within EPA noise and

emissions requirements.

NOAA response: NOAA disagrees.

Responsible users may not intentionally

harass wildlife, but unintentional

disturbance to wildlife from MPWC

operation has the same negative

impacts. See responses above for MPWC

effects—intentional or unintentional.

Testimony and comments from local

residents contend that MPWC are

disruptive. See response to comment 11

regarding enforcement and response to

comment 4 addressing noise.

For Regulation:

12. Comment: MPWC should be

completely prohibited throughout all of

the Sanctuary. Do not establish an

access corridor to launch at Bodega

Harbor.

NOAA response: NOAA agrees. As

discussed earlier, based on 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. The GFNMS

agrees with the concern that although

restricting MPWC from coming within

1,000 yards of the shore would protect

shore birds and wading birds, the

Sanctuary resources that lie outside of

this zone would remain at risk.

13. Comment: Golden Gate National

Recreation Acrea (Park) has banned use

of MPWC; Sanctuary (NOAA) should do

the same.

NOAA response: NOAA agrees. The

GFNMS boundaries are contiguous and

overlap with the Point Reyes National

Seashore (PRNS) and the Golden Gate

National Recreational Area (GGNRA)

which both prohibit MPWC use in their

waters. The Marin County Open Space

District (MCOSD) also shares

management authority with GFNMS on

Bolinas Lagoon where MPWC operation

is also prohibited by the MCOSD. As of

25 October 1999, the County of Marin

enacted an ordinance for the total ban

of MPWC within three statute miles

(15,840 ft.) of the ocean shore and all

tributaries flowing into the ocean up to

seven miles inland. This precludes

MPWC operation in a large portion of

the new shore area where County and

Sanctuary jurisdictional boundaries

overlap. NOAA concurs with and

supports the other agencies assessment

of resource impacts and user concerns

created by the operation of MPWC in

the marine environment of this area.

14. Comment: MPWC cause

unacceptable pollution in the

Sanctuary, particularly because

propulsion by two-stroke engine results

in oil exhaust direct to water.

NOAA response: NOAA agrees.

MPWC are powered by a jet-propelled

system that typically involves a twostroke 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 the fourstroke 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 emissions can have

significant adverse impacts in all areas

of the Sanctuary.

15. Comment: MPWC cause

unacceptable noise levels, which

disturb marine wildlife (marine

mammals, seabirds) as well as human

visitors to the Sanctuary.

NOAA 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) (Woolley 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 wakejump. 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).

16. Comment: Speed and mobility of

MPWC cause negative effects on marine

mammals and aquatic birds. Wildlife are

not able to anticipate movement and

may also cause susceptibility to disease

and injury.

NOAA 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, allterrain 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.

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

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules 32055

very close to them (Gentry 1996;

Osborne 1966). 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; avoidance by

whales and mortality of endangered

southern sea otters (Gentry 1996;

Richardson et al. 1995, Anonymous

1990).

17. Comment: MPWC cause the

disturbance of wildlife in the Sanctuary.

NOAA response: NOAA agrees. Many

seabirds and marine mammals use the

surface layer of the ocean within the

GFNMS for resting and feeding

opportunities. Common murres, loons,

cormorants, grebes, auklets, and

phalaropes are some of the seabirds that

float on the surface of the ocean while

resting or before diving and pursuing

prey. These seabirds are at an increased

risk from MPWC because MPWC

operation causes disturbance and more

complex behavioral responses from

seabirds and at greater distances than

that observed for motorboats (Rodgers

1997). One speaker at the public hearing

testified that he and others observed six

gray whales one afternoon loitering near

the mouth of Tomales Bay for the

afternoon. The next day, six MPWC

were operating in the exact area where

the gray whales had been. The gray

whales had left the area. While this

information is anecdotal, it is an

indication that the presence of whales

and MPWC operation are not

compatible. When viewed in light of

Gentry’s (1996) work, MPWC activity

may prevent wildlife from using

necessary habitat.

18. Comment: MPWC will cause

disruption of nesting, breeding, and

feeding areas of seabirds.

NOAA response. NOAA agrees.

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 habitat, 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

1999. 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 a

nesting 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).

Nearshore areas in Bodega Bay, Sonoma

County, provide important foraging

habitat for shorebirds and waterfowl

along the Pacific flyway. The Farallon

Islands, located in San Francisco

County, support the largest

concentration of breeding seabirds in

the continental United States. Several

species of diving birds that nest on the

Farallon Islands use the offshore areas

of the Sanctuary to forage. These

animals float on the surface of the water

between repeated dives for food. MPWC

operating in this offshore habitat would

certainly disrupt seabirds foraging for

prey to bring back to their young in

nests.

19. Comment: MPWC will cause

disruption of marine mammals; will

allow jet skis to be used in part of gray

whale migration route.

NOAA 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).

The gray whale migration corridor

passes directly through the GFNMS.

Twice a year gray whales pass through

the Sanctuary on their migration

between wintertime calving grounds in

Mexico and summer feeding grounds in

Alaska. In spring, mothers and calves

travel in pairs close to shore. Since the

whale migration corridor passes through

the entire Sanctuary in a north-south

direction, but varies in distance from

shore, there is no way to distance

MPWC from the migrating whales. In

addition, the GFNMS is a destination

feeding area for the endangered blue

and humpback whales. Each summer

these whales migrate to the GFNMS to

feed on abundant swarms of krill found

in the surface layers in the Gulf of the

Farallones. It is critical that these

whales feed enough in the summer and

fall to sustain them through their

migration and winter reproductive

season. Disturbance from MPWC could

reduce feeding opportunities and have

serious consequences for these

endangered populations. Endangered

blue whales were 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 necessity for

protecting all of the Sanctuary’s waters.

Other jurisdictions have regulated

MPWC specifically to protect marine

mammals (e.g., Hawaii).

20. Comment: Proposed rule will

leave 95% of the Sanctuary unprotected

[from the effects of jet skis]

NOAA response: NOAA agrees.

NOAA’s initial proposal of a 1000 yd.

buffer would leave 95% of the

Sanctuary open for MPWC operation.

The Sanctuary was created 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. As

discussed throughout this document,

information supports a need to address

the impacts of MPWC operation

throughout the Sanctuary. As the public

trustee for these important resources, it

would be inadequate for the Sanctuary

to leave resources at risk in 95% of the

GFNMS and therefore NOAA has

proposed a prohibition of the operation

of MPWC in the entire Sanctuary.

21. Comment: MPWC use disturbs

others using the Sanctuary and would

cause danger to individual swimmers

[and other boaters] in the Sanctuary.

NOAA 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

32056 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules

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 accident were MPWC (U.S. Coast

Guard 1999). In addition, numerous

commentors noted that the operation of

MPWC in the Sanctuary 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.

22. Comment: A partial ban would be

too hard to enforce; covering all of the

Sanctuary would be more clear to jet ski

users and to enforcement personnel.

NOAA response: NOAA agrees. With

the implementation of the Marin County

ban that regulates MPWC three miles

shore, enforcing boundary violations

would be difficult. Because the

Sanctuary does not have enforcement

personnel to staff a boat patrol at the

three mile boundary and MPWC are not

equipped with navigational equipment

it would be impossible to enforce

boundary violations. Before the Marin

County ban, there was difficulty

enforcing the Point Reyes National

Seashore’s (PRNS) quarter mile

restriction. Despite local riders attempt

at self-policing and creating no ride

zones, violations were chronic and

regulations were hard to enforce. This

occurred in PRNS that has enforcement

personnel on staff. A total prohibition

will provide a clear and simple

enforcement rule within the GFNMS.

III. Summary of Proposed Regulations

Amendments to the GFNMS

regulations are proposed in this

rulemaking as follows:

The addition to 15 CFR 922.82(a) of

a prohibition against operation of

MPWC in the Sanctuary. 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.

An amendment to 15 CFR 922.81 to

add a definition of ‘‘motorized personal

watercraft.’’ ‘‘Motorized personal

watercraft’’ would 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 proposed 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 that the

proposed rule, if adopted as proposed,

would not have a significant economic

impact on a substantial number of small

entities, 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 Sanctuary. 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 is currently one legal launch

location for MPWC operation in the

Sancturary at Bodega Harbor in Sonoma

County. Combined data from Marin County

and Sonoma County estimates 20 MPWC

users and approximately 200 launches per

year. With the Marin County ban issued in

October of 1999, it’s estimated the Sonoma

County parks would lose a launch fee of $5

dollars per launch for an estimated 100

launches form Bodega Harbor for a total loss

of $500 dollars. This is a minor portion of the

total revenues for the County park at Doran

Beach. Consequently, the rule is not expected

to have a significant economic impact on a

substantial number of small 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

Anonymous. 1990. Draft Environmental

Impact Statement, Monterey Bay

National Marine Sanctuary. Marine

and Estuarine Management Division,

National Oceanic and Atmospheric

Administration. Washington D.C.

Volume 1

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

Bakun A. 1973. Coastal Upwelling

indices, west coast of North America

1946–1971. NOAA Tech. Report.

NMFS SSRF 671, 103pp

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., M.

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

Kieckhefer T.R. 1992. Feeding Ecology

of Humpback Whales in Continental

Shelf Waters Near Cordell Bank,

California. Masters Thesis, Moss

Landing Marine Laboratories, San Jose

State University, California

Klimley A.P. and D.G. Ainley eds. 1996.

Great White Sharks—The Biology of

Carcharodon carcharias. Academic

Press. 517pp

Long, R., 1997. Polluting for Pleasure:

Part II. Sail, January 1997

Miller, G. and M. Fiore. 1997.

Preliminary Study on Gasoline

Constituents 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

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Proposed Rules 32057

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

Peterson, R.T. 1990. Western birds.

Peterson field guides. Houghton

Mifflin Company

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

Smith, D.E. and P.B. Adams. 1988.

Daytime Surface Swarms of

Thysanoessa spinifera (Euphausiacea)

in the Gulf of the Farallones,

California. Bull. of Marine Science

42(1):76–84

Squillace, P.J., J.F. Pankow, N.E. Korte,

and J.S. Zogorski. 1996.

Environmental Behavior and Fate of

Meth tert-Butyl Ether (MTBE). U.S.

Geological Survey Fact Sheet F5–203–

96

Sutherland, A.J. and D.G. Ogle. 1975.

Effect of jet boats on salmon eggs. N.Z.

Journal of Marine and Freshwater

Research, 9(3):273–82

Tahoe Research Group. 1997. The Use of

2-Cycle Engine Watercraft on Lake

Tahoe: Water Quality and

Limnological Considerations.

University of California, Davis

Tjarnlund, U., G. Ericson, E. Lindesjoo,

I. Petterson, and L. Balk. 1995.

Investigation of the Biological Effects

of 2-Cycle Outboard Enginesı ́ Exhaust

on Fish. Marine Environmental

Research. 39, 313–316

U.S. Coast Guard. 1999. Recreational

Boating Accident Statistics 1995 and

1996. www.uscgboating.org/

stats.html. Accessed Feb. 1999

PWIA vs. Department of Commerce, 48

F.3d 540 (D.C. Cir. 1995)

U.S. Department of the Interior. 1998a.

Golden Gate National Recreation

Area. Code of Federal Regulations,

Title 36, Chapter 1, compendium

amendment and Administrative

Record

U.S. Department of the Interior. 1998b.

Point Reyes National Seashore. Code

of Federal Regulations, Title 36,

Chapter 1, compendium

U.S. Department of the Interior. 1998c.

Proposed Rule: Personal Watercraft

Use Within the NPS System. 63 FR

49312 (Sept. 15, 1998)

U.S. Fish and Wildlife Service. 1992.

Management Agreement for the

Florida Keys Refuges—Monroe

County, Florida

Wagner, K.J. 1994. Of hammacks and

horsepower: the noise issue at lakes.

Lakeline, June 1994, pp. 24–28

Wing. S., J.L. Largier, L.W. Botsford, and

J.F. Quinn. 1995. Settlement and

transport of benthic invertebrates in

an intermittent upwelling region.

Limnol. and Oceanogr., 40(2) 316–329

Woolley, T. 1996. Testimony prepared

for the Superior Court of Washington

for Whatcom County

List of Subjects in 15 CFR Part 922

Administrative practice and

procedure, Coastal zone, Education,

Environmental protection, Marine

resources, Penalties, Recreation and

recreation areas, Reporting and

recordkeeping requirements, Research.

Dated: May 16, 2000.

Ted Lillestolen,

Deputy Assistant Administrator, Ocean

Services and Coastal Zone Management.

Accordingly, for the reasons set forth

above, 15 CFR Part 922, Subpart H, is

proposed to be amended as follows:

PART 922, SUBPART H—THE GULF

OF THE FARALLONES NATIONAL

MARINE SANCTUARY

1. The authority citation for Part 922

continues to read as follows:

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

2. Section 922.18 is amended by

adding the following definition, in the

appropriate alphabetical order.

§ 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:

§ 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. 00–12797 Filed 5–19–00; 8:45 am]

BILLING CODE 3510–08–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MN60–01–7285b; FRL–6703–2]

Approval and Promulgation of

Implementation Plans; Minnesota

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: We are proposing to approve

a site specific revision to the Minnesota

particulate matter (PM) State

Implementation Plan (SIP) for LTV Steel

Mining Company, formerly known as

Erie Mining Company, located in St.

Louis County, Minnesota. In its

submittal, the State has requested that

we remove the Stipulation Agreement

for Erie Mining Company from the

Minnesota SIP. In the final rules section

of this Federal Register, we are

conditionally approving the SIP revision

as a direct final rule without prior

proposal, because we view this as a

noncontroversial revision amendment

and anticipate no adverse comments. A

detailed rationale for the approval is set

forth in the direct final rule. If no

adverse comments are received in

response to this rule, no further activity

is contemplated in relation to this

proposed rule. If we receive adverse

comments, the direct final rule will be

withdrawn and all public comments

received will be addressed in a

subsequent final rule based on this

proposed rule. We will not institute a

second comment period on this action.

Any parties interested in commenting

on this action should do so at this time.

DATES: Comments must be received by

June 21, 2000.

ADDRESSES: Written comments should

be sent to: Carlton T. Nash, Chief,

Regulation Development Section, Air

Programs Branch (AR–18J), EPA Region

5, 77 West Jackson Boulevard, Chicago,

Illinois 60604–3590.

FOR FURTHER INFORMATION CONTACT:

Christos Panos, Regulation Development

Section, Air Programs Branch (AR–18J),

EPA Region 5, 77 West Jackson