[Federal Register Volume 65, Number 99 (Monday, May 22, 2000)]
[Proposed Rules]
[Pages 32048-32057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12797]


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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.

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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

[[Page 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 fifty-three (96%) supported banning the operation of MPWC 
within the GFNMS. Two signature petitions were also received; one, with 
276 signatures, supported the ban; the second, with 41 signatures, 
opposed the ban. Forty-four people spoke at a public meeting held to 
gather information during the comment period, all but one of who 
supported the petition to ban MPWC operation. Half of the speakers at 
the public meeting had previously submitted written comments.
    Responses to and investigation of the specific questions in the 
August, 1997 notice revealed that: (1) The number of MPWC currently 
being operated in Sanctuary waters is believed 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) Water-based recreational activity is increasing in the United 
States; (2) water-based recreational activity has impacted coastal 
habitats, seabirds, marine mammals and fish; (3) operation of MPWC is a 
relatively new and increasingly popular water sport; (4) MPWC, are 
different from other types of motorized watercraft in their structure 
(smaller size, shallower draft, two-stroke engine, and exhaust venting 
to water as opposed to air) and their operational impacts (operated at 
faster speeds, operated closer to shore, make quicker turns, stay in a 
limited area, tend to operate in groups, and have more unpredictable 
movements); (5) MPWC have been operated in such a manner as to create a 
safety hazard to other resource users in the vicinity; (6) MPWC may 
interfere with marine commercial users; (7) MPWC have disturbed natural 
quiet and aesthetic appreciation; (8) MPWC have interfered with other 
marine recreational uses; (9) MPWC have impacted coastal and marine 
habitats; (10) MPWC have disturbed waterfowl and seabirds; (11) MPWC 
have disturbed marine mammals; (12) MPWC may disturb fish; (13) other 
jurisdictions have had problems with MPWC and have proposed and 
implemented various means of attempting to solve the problems; (14) the 
Sanctuary has sensitive areas that were deemed worthy of protection by 
the designation of a National Marine Sanctuary, including five State 
designated Areas of Special Biological Significance and four semi-
enclosed estuarine areas; and (15) MPWC present a present and potential 
threat to resources and users of the GFNMS.
    Based on this information, the NMSP published a proposed rule to 
prohibit operation of MPWC from the mean high tide line seaward to 1000 
yards. The proposed rule was geared toward protecting Sanctuary 
resources and minimizing user conflict in the nearshore areas. NOAA 
received 53

[[Page 32050]]

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

[[Page 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 counter-clockwise eddy that swirls 
south of Point Reyes in the Gulf of the Farallones concentrates the 
products of upwelling (Wing et al. 1995) and acts like an incubator for 
small developing animals. These in turn are food for organisms higher 
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

[[Page 32052]]

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.
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    \1\ On 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.
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    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,

[[Page 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 wake-jump. 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

[[Page 32054]]

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 two-stroke engine with an exhaust 
expulsion system that vents directly into the water. The two-stroke 
engines found on the vast majority of MPWC in the United States 
discharge more of their fuel (ranging from 10% to more than 50% of the 
unburned fuel/oil mixture, depending on manufacturing conditions and 
operating variables) than 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 
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 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).
    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, all-terrain vehicles, foot approach, or motorboats. This 
was partially attributed by the scientists to the typical operation of 
MPWC, where they accelerate and decelerate repeatedly and 
unpredictably, and travel at fast speeds directly toward shore, while 
motor boats generally slow down as they approach shore (Rodgers 1997). 
Scientific research also indicates that even at slower speeds, MPWC 
were a significantly stronger source of disturbance to birds than were 
motor boats. Levels of disturbance were further increased when MPWC 
were used at high speeds or outside of established boating channels 
(Burger 1998). There is a general conclusion that marine mammals are 
more disturbed by watercraft such as MPWC, which run faster, on varying 
courses, or often change direction and speed, than they are by boats 
running parallel to shore with no abrupt course or major speed change.
    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

[[Page 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

[[Page 32056]]

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

[[Page 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 
Enginesi 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.


Sec. 922.81  Definitions.

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


Sec. 922.82  Prohibited or otherwise regulated activities.

    (a) * * *
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft for emergency search and 
rescue mission or law enforcement operations (other than routine 
training activities) carried out by National Park Service, U.S. Coast 
Guard, Fire or Police Departments or other Federal, State or local 
jurisdictions.
* * * * *
[FR Doc. 00-12797 Filed 5-19-00; 8:45 am]
BILLING CODE 3510-08-M