[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Proposed Rules]
[Pages 19945-19952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9981]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 970626156-9077-02]
RIN No. 0648-AK01
Regulation of the Operation of Motorized Personal Watercraft in
the Gulf of the Farallones National Marine Sanctuary
AGENCY: Marine Sancturaries Division (MSD), Office of Ocean and Coastal
Resource Management (OCRM), National Ocean Service (NOS), National
Oceanic and Atmospheric Administration (NOAA), Department of Commerce
(DOC).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Oceanic and Atmospheric Administration proposes
to amend the regulations governing the Gulf of the Farallones National
Marine Sanctuary (GFNMS or Sanctuary) to prohibit the operation of
motorized personal watercraft (MPWC) in the nearshore waters of the
Sanctuary. Specifically, the operation of MPWC would be prohibited from
the mean high-tide line seaward to 1,000 yards
[[Page 19946]]
(approximately 0.5 nautical mile), including seaward of the Farallon
Islands. This proposed action responds to a petition from the
Environmental Action Committee of West Marin, California, to ban
operation of MPWC in the Sanctuary. This document also responds to
comments received in response to a Notice of Inquiry/Request for
Information that NOAA published on August 21, 1997, to obtain
additional information on the operation and impacts of MPWC. The
proposed rule would ensure that Sanctuary resources and qualities are
not adversely impacted and would help avoid conflicts among various
users of the Sanctuary.
A Draft Environmental Assessment (DEA) has been drafted on the
proposed rule and is available for comment. The DEA may be obtained
from the address below.
DATES: Comments on the proposed rule or DEA must be received by May 24,
1999. A public hearing on this proposed rule will be held at a time and
location to be published in a separate document.
ADDRESSES: Comments should be sent to Ed Ueber, Sanctuary Manger, Gulf
of the Farallones National Marine Sanctuary, Ft. Mason, Building 201,
San Francisco, California 94123; fax: (415) 561-6616; email:
ed.ueber@noaa.gov. Comments received will be available for public
inspection at the above address.
FOR FURTHER INFORMATION CONTACT: Ed Ueber at (415) 561-6622.
SUPPLEMENTARY INFORMATION:
I. Background
In recognition of the national significance of the unique marine
environment of the Gulf of the Farallones, California, the GFNMS was
designated in January 1981. Final regulations became effective April 5,
1981, and March 30, 1982. The GFNMS regulations at 15 CFR part 922,
Subpart H prohibit a relatively narrow range of activities to protect
Sanctuary resources and qualities.
On April 18, 1996, the Environmental Action Committee (EAC) of West
Marin, California, petitioned the GFNMS to ban the use of MPWC in the
Sanctuary. Operation of MPWC are currently not regulated by the
Sanctuary. The EAC identified a number of concerns regarding the use of
MPWC within the Sanctuary. In its petition, the EAC asserted that: MPWC
are completely incompatible with the existence of a marine sanctuary;
pose a danger to the biological resources of the sanctuary, such as
marine mammals, wildfowl, kelp beds, anadromous fish, and other marine
life; create noise, water and air pollution; and threaten mariculture
and other commerce throughout the Sanctuary. The EAC also stated that
MPWC create a hazard for other Sanctuary users, including swimmers,
sailboats, windsurfers, open-water rowing shells and kayaks. NOAA also
received 195 letters from members of the public in response to media
publicity about the petition. Sixty-four percent opposed regulation of
MPWC; 33 percent supported the ban; one percent expressed no clear
opinion.
To supplement existing information on the use and impacts of MPWC,
NOAA published a Notice of Inquiry/Request for Information in the
Federal Register on August 21, 1997, initiating a 45-day comment period
that ended October 6, 1997. NOAA requested information on the
following: (1) The number of motorized personal watercraft being
operated in the Sanctuary; (2) possible future trends in such numbers;
(3) the customary launching areas for motorized personal watercraft in
or near the Sanctuary; (4) the areas of use of motorized personal
watercraft activity in the Sanctuary, including areas of concentrated
use; (5) the periods (e.g., time of year, day) of use of motorized
personal watercraft in the Sanctuary, including periods of high
incidence of use; (6) studies or technical articles concerning the
impacts of motorized personal watercraft on marine resources and other
users; (7) first person or documented accounts of impacts of motorized
personal watercraft on marine resources and other users; and (8) any
other information or other comments that may be pertinent to this
issues. NOAA received 160 public comments in response to the notice of
inquiry and two signature petitions during the comment period. One
hundred fifty-three (96 percent) supported banning the operation of
MPWC within the GFNMS. Two signature petitions were also received; one,
with 276 signatures, supported the ban; the second, with 41 signatures,
opposed the ban. Forty-four people spoke at a public meeting held to
gather information during the comment period, all but one of whom
supported the petition. Half of the speakers at the public meeting had
previously submitted written comments.
Responses to and investigation of the specific questions in the
notice revealed that: (1) The number of MPWC currently being operated
in Sanctuary waters is believed by the proprietors of Lawson's Landing,
the primary MPWP launch site in Sanctuary waters, to be less than 200
launches per year by approximately 20 users; (2) the use of MPWC in
Sanctuary waters is believed to be increasing; (3) there are two
established MPWC launch sites in the Sanctuary, at Bodega Harbor and
Lawson's Landing; (4) the areas in the Sanctuary where MPWC are
operated are in the vicinity of the mouth of Tomales Bay and the area
outside Bodega Harbor. Over 95 percent of MPWC operation that occurs in
the Sanctuary occurs in these areas; (5) April through November appear
to be the times of highest use of MPWC in Sanctuary waters; (6, 7, 9)
numerous studies, technical articles, and personal documentation such
as photos, letters and logs of the impacts of MPWC on marine resources
and other users were received and collected.
The following have been identified throughout NOAA's review of this
issue: (1) Water-based recreational activity is increasing in the
United States; (2) water-based recreational activity has impacted
coastal habitats, seabirds, marine mammals and fish; (3) operation of
MPWC is a relatively new and increasingly popular water sport; (4)
MPWC, are different from other types of motorized watercraft in their
structure (smaller size, shallower draft, two-stroke engine, and
exhaust venting to water as opposed to air) and their operational
impacts (operated at faster speeds, operated closer to shore, make
quicker turns, stay in a limited area, tend to operate in groups, and
have more unpredictable movements); (5) MPWC have been operated in such
a manner as to create a safety hazard to other resource users in the
vicinity; (6) MPWC may interfere with marine commercial uses; (7) MPWC
have disturbed natural quiet and aesthetic appreciation; (8) MPWC have
interfered with other marine recreational uses; (9) MPWC have impacted
coastal and marine habitats; (10) MPWC have disturbed waterfowl and
seabirds; (11) MPWC have disturbed and marine mammals; (12) MPWC may
disturb fish; (13) Other jurisdictions have had problems with MPWC and
have proposed and implemented various means of attempting to solve the
problems; (14) the Sanctuary has sensitive areas that were deemed
worthy of protection by the designation of a National Marine Sanctuary,
including five State designated Areas of Special Biological
Significance and four semi-enclosed estuarine areas; (15) MPWC present
a present and potential threat to resources and users of the GFNMS.
The waters of the Sanctuary are home to rich biological diversity.
The importance and uniqueness of Sanctuary waters has been
internationally recognized by the incorporation of Sanctuary waters in
the Golden Gate International Biosphere Reserve, and the designation of
Bolinas
[[Page 19947]]
Lagoon as a RAMSAR (the Convention for Wetlands of International
Significance) site. The Sanctuary provides habitat for hundreds of
species of birds, marine mammals, pinnipeds, otters, sea turtles, and
marine fauna and algae.
Among the hundreds of bird species that reside in or migrate
through the Sanctuary, many are endangered, threatened or of special
concern. These include the following species \1\, which are found in
the nearshore waters of the Sanctuary and the Farallon Islands:
---------------------------------------------------------------------------
\1\ Bird classifications from Peterson, R.T. 1990. A field guide
to western birds. Houghton Mifflin Company.
[Key: FE=Federally listed as endangered; FT=Federally listed as
threatened; SE=listed in the State of California as endangered;
ST=listed in the State of California as threatened; CSC=California
species of concern]
------------------------------------------------------------------------
------------------------------------------------------------------------
Swimmers [ducks and duck-like]
------------------------------------------------------------------------
Aleutian Canada goose.......... Branta canadensis FT
leucopareia.
Barrow's goldeneye............. Bucephala islandica.... CSC
Common loon.................... Gavia immer............ CSC
Double-crested cormorant....... Palacrocorax auritus... CSC
Harlequin duck................. Histrionicus CSC
histrionicus.
Marbled murrelet............... Brachyramphus FT/SE
marmoratus.
------------------------------------------------------------------------
Aerialists [gulls and gull-like]
------------------------------------------------------------------------
American white pelican......... Pelecanus CSC
erythorhynchos.
Ashy storm petrel.............. Oceanodroma homochroa.. CSC
California brown pelican....... Pelecanus occidentalis FE/SE
californicus.
California gull................ Larus californicus..... CSC
California least tern.......... Sterna antillarum FE/SE
browni.
Elegant tern................... Sterna elegant......... CSC
Hawaiian dark-rumped petrel.... Pterodroma phaeopygia.. FE
Short-tailed albatross......... Diomedea albatrus...... FE
------------------------------------------------------------------------
Long-legged waders [herons, cranes, etc.]
------------------------------------------------------------------------
California black rail.......... Laterallus jamaicensis ST
corurniculus.
White-faced ibis............... Plegadis chihi......... CSC
------------------------------------------------------------------------
Smaller waders [plovers, sandpipers, etc.]
------------------------------------------------------------------------
Long-billed curlew............. Numenius americanus.... CSC
Western snowy plover (coastal). Charadrius alexandrinus FT/CSC
niv..
------------------------------------------------------------------------
Birds of prey [hawks, eagles, owls]
------------------------------------------------------------------------
Bald eagle..................... Haliaeetus FT
leucocephalus.
Ferruginous hawk............... Buteo regalis.......... CSC
Osprey......................... Pandion haliaetus...... CSC
Prairie falcon................. Falco mexicanus........ CSC
------------------------------------------------------------------------
Passerine birds [perching]
------------------------------------------------------------------------
Saltmarsh common yellowthroat.. Geothlypis trichas CSC
sinuosa.
------------------------------------------------------------------------
There are at least twelve critical marine bird nesting areas along
the shoreline of the Sanctuary. More than twelve species of marine
birds breed in the Sanctuary. The nesting seabird population of the
Farallon Islands comprises the largest concentration of breeding marine
birds in the continental U.S.
Thirty-three species of marine mammals have been observed in the
Sanctuary including six species of pinnipeds and twenty-five species of
cetaceans. More than 20 percent of the state's harbor seals live within
the boundaries of the Sanctuary, and Northern Fur seals have pupped
here for the first time since the Sanctuary was designated. Of the
twenty-six species of cetaceans that occur in Sanctuary waters,
nineteen are migratory, and seven are considered resident species. Many
of these marine mammals occur in large concentrations and are dependent
on the productive and secluded habitat of the Sanctuary's waters and
adjacent coastal areas for breeding, pupping, hauling-out, feeding, and
resting during migration. Three areas in the Sanctuary have been
identified as critical feeding areas for the threatened Steller sea
lion, including the nearshore areas around Point Reyes, and the
northern half of Tomales Bay. The Harbor seals, elephant seals,
California sea lion, Dall's porpoise, harbor porpoise and Gray whales
are common in the nearshore waters and protected bays of the Sanctuary.
In addition, four species of endangered sea turtles are known to reside
in or migrate through Sanctuary waters. A listing of all threatened and
endangered marine mammals and sea turtles follows.
[[Page 19948]]
[Key: FE=Federally listed as endangered; FT=Federally listed as
threatened; ST=listed in the State of California as threatened]
------------------------------------------------------------------------
------------------------------------------------------------------------
Pinnipeds
------------------------------------------------------------------------
Guadelupe fur seal............. Arctocephalus townsendi FT/ST
Stellar (Northern) sea lion.... Eumetopias jubatus..... FT
------------------------------------------------------------------------
Mustelids
------------------------------------------------------------------------
Southern sea otter............. Enhydra lutris nereis.. FT
------------------------------------------------------------------------
Cetaceans
------------------------------------------------------------------------
Blue whale..................... Balaenoptera musculus.. FE
Humpback whale................. Magaptera noveangliae.. FE
Sei whale...................... Balaenoptera robustus.. FE
Sperm whale.................... Physeter macrocphalus.. FE
------------------------------------------------------------------------
Sea Turtles
------------------------------------------------------------------------
Green turtle................... Chelonia mydas......... FE
Leatherback turtle............. Dermochelys coriancea.. FE
Loggerhead turtle.............. Caretta caretta........ FE
Olive (Pacific) ridley sea Lepidochelys olivacea.. FE
turtle.
------------------------------------------------------------------------
Because of its unique geology and geography, the Sanctuary's marine
fauna may be more diverse than in other areas along the Pacific Coast.
The protected bays and coastal wetlands of the Sanctuary, such as
Tomales Bay, Drakes Bay, Bolinas Lagoon, and the esteros, include
intertidal mudflats, sand flats, salt marshes, submerged rocky
terraces, and shallow subtidal areas. These areas support large
populations of benthic fauna and concentrations of burrowing organisms
living on marine plants. Submerged eel grass (Zostra) beds are
prevalent in the northern portion of Tomales Bay, and support crucial
habitat for more than 50 resident, breeding, and migratory bird
populations, for a wide array of marine invertebrates, and for the egg
masses of herring and other fish. It is estimated that approximately 30
million herring annually spawn in the eelgrass beds of Tomales Bay
(Fox, 1997). The shallow protected bays and estuaries within the
Sanctuary, such as Tomales Bay, Drakes Bay, Bolinas Lagoon, and the
esteros, are important habitat for anadromous fish, several species of
surfperches, and flatfish. Numerous and diverse fish and invertebrate
species are found in Sanctuary waters. Over 150 species of fish are
found in the Sanctuary, and include predator and prey species, and
commercial fishing species. Among the fish found in Sanctuary waters
are the endangered winter-run chinook salmon and tidewater goby, and
coho salmon, Federally listed as a threatened species.
The nearshore waters of the Sanctuary are particularly vulnerable
areas where myriad marine invertebrates and algae reside, where bird
rookeries and pinniped haulout sites are present, where many critical
nursery and food source habitats for wildlife are located, and where
many nearshore users of the Sanctuary's water tend to concentrate. The
nearshore waters of the Sanctuary are also those areas most impacted by
the operation of MPWC. Lawson's Landing, a current MPWC launch site, is
situated at the largest pinniped haulout in Tomales Bay, and is also
within a quarter mile of Walker Creek delta, where the highest
concentration of wading and shore birds occurs in the Sanctuary, and
where sea otters have been regularly observed.
The nearshore waters of the Sanctuary are the areas most heavily
used for recreation. Areas such as Tomales Bay and Dillon Beach are
used for sailing, canoeing, rowing, kyaking and swimming. These
activities are often conducted very close to shore and may be dependent
on calm waters. The ability of MPWC to go very close to shore (due to
their shallow draft) and move in unpredictable ways may be detrimental
to the safety and aesthetic experience of those conducting these more
benign recreational activities. NOAA believes that MPWC operation in
nearshore areas creates a user conflict that can be avoided by keeping
MPWC offshore.
Because of the biological diversity of the Sanctuary waters, the
importance of the nearshore areas of the Sanctuary to that diversity,
the potential for adverse environmental impacts that operation of MPWC
pose to these nearshore areas, and because the the high potential for
user conflicts, NOAA has decided to prohibit their operation from the
nearshore waters of the Sanctuary, including waters surrounding the
Farallon Islands. After discussions with the National Park Service, the
Environmental Action Committee of West Marin, the MPWC industry, the
Audubon Canyon Ranch, and individual ornithologists, NOAA is proposing
a 1,000-yard buffer as a reasonable area to protect the nearshore
waters. Specifically, the proposed rule would prohibit the operation of
MPWC from the mean high-tide line seaward to 1,000 yards (approximately
0.5 nautical mile). The restricted areas include Drakes Bay, Tomales
Bay, Bolinas Lagoon, Estero Americano and Estero de San Antonio, except
for an access corridor from the launch site at Bodega Harbor leading
into Bodega Bay.
Historically, there have been 4 (four) launch sites in the area--
Lawson's Landing at Dillion Beach, Millerton Point Park, Inverness, and
Bodega Harbor. As of 1 November 1998, launching MPWC from Point Reyes
National Seashore (PRNS) or Golden Gate National Recreation Areas
(GGNRA) is prohibited (U.S. Dept. of Interior, 1998a & b). Millerton
Point Park and Inverness are within GGNRA and PRNS boundaries,
respectively, and therefore can no longer be used. Lawson's Landing is
situated at the most critical Harbor seal and shore bird area in
Tomales Bay (Walker Creek Delta). Continued use of Lawson's Landing
would result in unacceptable disturbance of these sensitive resources.
Therefore, NOAA is proposing Bodega Harbor as the most appropriate
launch site, and the access corridor proposed in designed to facilitate
access by MPWC
[[Page 19949]]
to the GFNMS from this site. This change in primary launch site should
not cause a significant inconvenience for any of the customary users of
MPWC within the GFNMS as Bodega Harbor is within five (5) miles of
Lawson's Landing and is easier to access.
II. Comments and Responses on Notice of Inquiry/Request for
Information
The following is a summary of comments received on the Request for
Information, and NOAA's responses.
(1) Comment: Prohibiting operation of MPWC in the Sanctuary would
unfairly single out one type of vessel.
Response: NOAA disagrees. Several Federal resource agencies have
recognized MPWC as a unique type of recreational vessel that is
relatively recent in origin (U.S. Fish and Wildlife Service, 1992;
NOAA, 1992; U.S. Dept. of Interior, 1998c). MPWC are designed to be
operated at high speeds, closer to shore, and to make quicker turns
than other types of motorized vessels. MPWC have a disproportional
thrust capability and horsepower to vessel length and/or weight, in
some cases four times that of conventional vessels (U.S. Dept. of
Interior, 1998c). Research indicates that impacts associated with MPWC
tend to be locally concentrated, producing effects that are more
geographically limited yet potentially more severe than motorboat use,
due to repeated disruptions and an accumulation of impacts in a shorter
period of time (Snow, 1989). The Washington, D.C., Circuit Court of
Appeals agreed with NOAA that there was a difference between MPWC and
other kinds of watercraft: ``personal watercraft were small, highly
maneuverable, and fast, and * * * they operated close to shore, in
areas of high concentrations of kelp forests, marine mammals, and sea
birds. That differentiated all larger craft, all slower craft, all less
maneuverable craft, and all craft that did not tend to use the same
areas in the same manner.'' (PWIA v. Dept of Commerce, 1995) There are
at least five salient differences between the use of MPWC and other
types of watercraft: (1) MPWC operators rarely engage in sedentary
activities such as fishing; (2) MPWC operators often travel in groups
of more than two vessels; (3) MPWC operators generally run their craft
at high speeds and drive in patterns of repeated circuitous trips; (4)
MPWC operators repeatedly circumnavigate small islands in shallow
waters, and/or may repeatedly jump nearshore waves; and (5) because of
MPWC size, speed and maneuverability, MPWC operators may run
unpredictable transits, and can access shallow, nearshore areas that
other types of motorized watercraft cannot.
(2) Comment: MPWC impact the environment less that other boats,
primarily due to their smaller size and jet propulsion system.
Response: NOAA disagrees. MPWC are generally of smaller size, with
a shallower draft (4 to 9 inches), and lower horsepower (around 75, as
compared to up to 250 for large pleasure craft) than most other kinds
of motorized watercraft (Ballestero, 1990; Snow, 1989). The smaller
size and shallower draft of MPWC means they are more maneuverable,
operable closer to shore and in shallower waters than other types of
motorized watercraft. This maneuverability greatly increases the
potential for MPWC to disturb fragile nearshore habitats and organisms.
Although wakes of MPWC may be smaller than wakes of conventional motor
boats, they can be more damaging (e.g., flooding of coastal bird nests;
erosion of shoreline) because MPWC are often operated faster, closer to
shore and repeatedly in the same area (Snow, 1989). Also, equipment can
be installed on MPWC to create more and higher spray, which exacerbates
the effects of MPWC wake.
Research indicates that MPWC increase turbidity and may
redistribute benthic invertebrates, and these impacts may be prolonged
as a result of repeated use by multiple machines in a limited area.
Research has shown that MPWC can foul water with their discharge, and
increase local erosion rates by launching and beaching repeatedly in
the same locations (Snow, 1989). The Bodega Bay access route proposed
in this regulation is an established corridor from an active launch
ramp, and would not result in unreasonable additional environmental
impacts.
MPWC are powered by a jet-propelled system that typically involves
a two-stroke engine with an exhaust expulsion system that vents into
the water. Most conventional recreational boats use a four-stroke
engine. The two-stroke engines found on the vast majority of MPWC in
the United States discharge more of their fuel (ranging from 10 percent
to more than 50 percent of the unburned fuel/oil mixture, depending on
manufacturing conditions and operating variables) than the four-stroke
engines found on conventional recreational boats (Tahoe Research Group,
1997). These emissions pose a serious threat to the environment, as
two-stroke engines introduce more volatile organic compounds (by a
factor of 10) into the water than four-stroke engines (Juttner et al.,
1995; Tjarnlund et al., 1995). These emission can have significant
adverse impacts in many areas of the Sanctuary, particularly shallow
nearshore coastal areas and estuaries.
In addition, the gasoline additive MTBE (methyl tert-butyl ether)
is being found to contaiminate various water bodies (National Research
Council, 1996). When discharged into water, MTBE tends to float on the
surface microlayer of the water. Research has indicated that
chromosomal damage, malformation, reduced growth, and high mortality
rates of fish larvae may occur at extremely low levels of surface layer
hydrocarbon pollution (Long, 1997). MTBE, classified as a possible
human carcinogen, has been implicated in human complaints of headaches,
coughs, and nausea, and may also have detrimental effects on wildlife
(National Research Council 1996). MTBE is more soluble in water than
other hydrocarbons, is not readily biodegradable, is not subject to
photolysis, and does not readily absorb to organic or inorganic
particles. It is expected to volatilize approximately 10 times slower
than other compounds (Miller and Fiore, 1997; Squillace et al., 1996).
Since two-stroke engines emit more exhaust into the water, they
therefore emit more MTBE into the water, posing a more serious
ecological threat than do four-stroke engines.
(3) Comment: MPWC may disturb fish, waterfowl and seabirds.
Response: NOAA agrees. Research in the Everglades National Park
indicated that fishing success dropped to zero when fishing occurred in
the same waters used by MPWC, and scientists in the Pacific Northwest
have been concerned about the effects of MPWC on spawning salmon (Snow,
1989; Sutherland and Ogle, 1975). Research in Florida indicates that
MPWC cause wildlife to flush at greater distances, with more complex
behavioral responses than observed in disturbances caused by
automobiles, all-terrain vehicles, foot approach, or motorboats. This
was partially attributed by the scientists to the typical operation of
MPWC, where they accelerate and decelerate repeatedly and
unpredictably, and travel at fast speeds directly toward shore, while
motorboats generally slow down as they approach shore (Rodgers, 1997).
Scientific research also indicates that even at slower speeds, MPWC
were a significantly stronger source of disturbance to birds than were
motorboats. Levels of disturbance were further increased when MPWC were
used at high speeds or outside of established boating channels (Burger,
1998). Research notes that declining
[[Page 19950]]
nesting success of grebes, coots, and moorhens in the Imperial National
Wildlife Refuge were due to the noise and physical intrusion of MPWC
(Snow, 1989). In addition, MPWC have been observed flushing wading
birds and nesting osprey from their habitats, contributing to
abnormally high numbers of abandoned osprey nests on certain islands in
the Florida Keys (U.S. Fish and Wildlife Service, 1992). The number of
active osprey nests in the lower Florida Keys ``backcountry'' dropped
from five to zero between 1986 and 1990. Biologists believe this was
due to MPWC flushing parents from the nests (Cuthbert and Suman, 1995).
Research suggests that declines in nesting birds in some states
occurred simultaneous with MPWC operation. Numerous shoreline roost
sites exist within the Sanctuary, and research has shown that human
disturbance at bird roost sites can force birds to completely abandon
an estuary. Published evidence strongly suggests that estuarine birds
may be seriously affected by even occasional disturbance during key
parts of their feeding cycle, and when flushed from feeding areas, such
as eelgrass beds, will usually abandon the area until the next tidal
cycle (Kelly, 1997).
(4) Comment: MPWC disturb marine mammals.
Response: NOAA agrees. There is a general conclusion that marine
mammals are more disturbed by watercraft such as MPWC, which run
faster, on varying courses, or often change direction and speed, than
they are by boats running parallel to shore with no abrupt course or
major speed change. Researchers note that MPWC may be disruptive to
marine mammals when they change speed and direction frequently, are
unpredictable, and may transit the same area repeatedly in a short
period of time. In addition, because MPWC lack low-frequency long
distance sounds underwater, they do not signal surfacing mammals or
birds of approaching danger until they are very close to them (Gentry,
1996; Osborne, 1996).
Possible disturbance effects of MPWC on marine mammals could
include shifts in activity patterns and site abandonment by harbor
seals and Steller sea lions; site abandonment by harbor porpoise;
injuries from collisions; and avoidance by whales (Gentry, 1996;
Richardson et al., 1995).
Comment: MPWC are excessively noisy, and disturb the peace of other
users of the Sanctuary.
Response: In general, unless modified by the operator (i.e.,
removal or alteration of the muffler), MPWC do not appear to be any
louder in the air than similarly powered conventional motorized
watercraft (MPWC and conventional watercraft both registered between 74
and 84 decibels in tests conducted in 1990) (Wooley, 1996) and appear
to be quieter underwater (Gentry, 1996). However, many MPWC operators
alter or remove the mufflers to enhance craft performance, thus
increasing the noise generated by their craft. Also, MPWC may be
perceived as being louder than other boats because they can travel
faster, closer to shore often travel in groups, tend to frequently
accelerate and decelerate, and ``wake-jump.''These characteristics
create uneven, persistent noise apparently more bothersome to people
and potentially to wildlife. In addition, research indicates that the
constancy of speed figures into noise generation, as most people adjust
to a constant drone and cease to be disturbed by it, even at elevated
levels, but the changes in loudness and pitch of MPWC are more
disturbing to people than other watercraft (Wagner, 1994).
(6) Comment: MPWC may interfere with other recreational uses of the
Sanctuary.
Response: NOAA agrees. The Sanctuary encourages multiple uses of
its waters that are compatible with resource protection. When used as
designed and in the current manner, MPWC have significant potential to
interfere with a large number of other Sanctuary users. Numerous
respondents to the Notice of Inquiry/Request for Information noted that
MPWC were interfering with, and often jeopardizing the well-being of,
swimmers, kayakers, canoeists, and other recreational boaters and users
of nearshore areas in the Sanctuary. MPWC have been involved in
numerous accidents, and thus pose a hazard to other water users.
Although MPWC make up approximately 11 percent of vessels registered in
the country (U.S. Dept. of Interior, 1998c), Coast Guard statistics
show that in 1996, 36 percent of all watercraft involved in accidents
were MPWC (U.S. Coast Guard, 1999). In addition, numerous commentors
noted that the operation of MPWC in nearshore areas diminishes the
aesthetic qualities of many beach and recreational areas, and may
interfere with other economic uses of the areas based upon these
aesthetic qualities.
(7) Comment: MPWC are incompatible with the purposes of the
Sanctuary.
Response: The Sanctuary was designated in 1981 to ``protect and
preserve the extraordinary ecosystems, including marine birds, mammals,
and other natural resources, of the waters surrounding the Farallon
Islands and Point Reyes, and to ensure the continued availability of
the area as a research and recreational resource.'' When used as
designed and in the current manner, the combined attributes of MPWC
interfere with resource protection, multiple compatible use of
Sanctuary resources, and the long-term ecological integrity of the
nearshore Sanctuary waters. While use of MPWC in certain areas of the
GFNMS could adversely impact resources and create conflicts, uses
outside these areas may not be incompatible with the Sanctuary's
purposes. For the reasons outlined in responses 1 through 7, NOAA
believes that operation of MPWC are incompatible with the protection
and preservation of the sensitive natural resources of the nearshore
waters of the Sanctuary.
III. Summary of Regulations
Due to the many bird, pinniped, mustelid, cetacean and fish
species, dependent solely or in the part on the Sanctuary's nearshore
waters, some of which are listed by the State of California and/or the
Federal Government as endangered, threatened, or of concern, and the
effects the operation of MPWC has on these species and other human
users of the Sanctuary's waters (as detailed above), NOAA proposes to
restrict the operation so MPWC within Sanctuary waters to those areas
outside a 1,000-yard nearshore zone, including around the Farallon
Islands. In proposing this rule, NOAA is responding to the April 1996
petition of the Environmental Action Committee of West Marin,
California and to the agency's constituents, including the public,
marine commercial interests, and other governments agencies. In
responding, the agency has taken into account all expressed viewpoints,
and has attempted to balance these fully and in accordance with the
Gulf of the Farallones National Marine Sanctuary's stated mission to
``protect and preserve the extraordinary ecosystem, including marine
birds, mammals, and other natural resources, of the waters surrounding
the Farallon Islands and Point Reyes, and to ensure the continued
availability of the area as a research and recreational resource.'' In
responding thus, the agency also aims to proactivity carry out the
mission of the MFNMS by addressing the operation of a unique type of
vessel in sensitive marine and estuarine habitats.
Amendments to the GFNMS regulations are proposed in this rulemaking
as follows:
[[Page 19951]]
The proposed amendment is the addition to 15 CFR 922.82(a) of a
prohibition against operation of motorized personal watercraft in the
nearshore waters of the Sanctuary. Specifically, the operation of MPWC
would be prohibited from the mean high-tide line seaward to 1,000 yards
(approximately 0.5 nautical mile), including seaward of the Farallon
Islands. The restricted areas include Drakes Bay, Tomales Bay, Bolinas
Lagoon, Estero Americano and Estero de San Antonio, except for an
access corridor in Bodega Bay, as described in Appendix B of Subpart H
of 15 CFR Part 922. The prohibition would include an exception for the
use of MPWC for emergency search and rescue and law enforcement (other
than training activities) by Federal, State and local jurisdictions.
Section 922.81 would also be amended by adding a definition of
``motorized personal watercraft'' as ``a vessel which uses an inboard
motor powering a water jet pump as its primary source of motive power
and which is designed to be operated by a person sitting, standing, or
kneeling on the vessel, rather than the conventional manner of sitting
or standing inside the vessel.''
As discussed in detail above, this regulation is necessary to
protect sensitive biological resources and important, to minimize user
conflict, and to protect the ecological, aesthetic, and recreational
qualities of the nearshore area of the Sanctuary.
IV. Miscellaneous Rulemaking Requirements
Executive Order 12866: Regulatory Impact
This proposed rule has been determined to be not significant for
purposes of Executive order 12866.
Executive Order 12612: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federal implications sufficient to warrant preparation of a federalism
assessment under Executive Order 12612.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration as follows:
The proposed rule would amend the Gulf of the Farallones National
Marine Sanctuary (GFNMS or Sanctuary) regulations to prohibit the
operation of motorized personal watercraft in the nearshore areas of
the Sanctuary. Specifically, the operation of MPWC would be prohibited
from the mean high-tide line seaward to 1,000 yards (approximately 0.5
nautical mile). The proposed rule would ensure that Sanctuary resources
and qualities are not adversely impacted and would help avoid conflicts
among various users of the Sanctuary.
There are currently two established launch sites for MPWC operation
in the Sanctuary; Lawson's Landing and Bodega Harbor. The proposed
regulation would remove Lawson's Landing as a MPWC launch site due to
its proximity to critical harbor seal and shore bird areas. Lawson's
Landing, on the eastern shore at the mouth of Tomales Bay, had 169 MPWC
launches in 1997 at $5/launch. According to the owner of Lawson's
Landing, the total annual value of MPWC launch business was under $800,
because some of the launches were free. Neither launch site rents MPWC.
The Bodega Harbor launch site will still be available for MPWC, and is
less than 5 miles north of Lawson's Landing. The owner of Lawson's
Landing says that this is a minor portion of the total revenues. The
majority of the Sanctuary (over 95 percent) will still be available to
MPWC, so rentals should not be affected by the 1,000-yard prohibited
buffer. Consequently, the rule is not expected to significantly impact
a substantial number of small business entities.
Accordingly, a Regulatory Flexibility Analysis was not prepared.
Paperwork Reduction Act
This proposed rule would not impose an information collection
requirement subject to review and approval by OMB under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3500 et seq.
National Environmental Policy Act
NOAA has concluded that this regulatory action does not constitute
a major federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required. A draft environmental assessment has been prepared. It is
available for comment from the address listed at the beginning of this
notice.
Bibliography
Ballestero, T.P. 1990. Impact of motor boat and personal
watercraft on the environment: bibliography. Environmental Research
Group, University of New Hampshire. Durham, New Hampshire. 25pp.
Burger, J. 1998. Effects of motorboats and personal watercraft
on flight behavior over a colony of Common Terns. Condor, 100 (3):
528-534.
Cuthbert, A. and D. Suman. 1995. To jet ski or not to jet ski:
personal watercraft conflicts in the lower Florida Keys, in Suman,
D., Shivlani, and M. Villanueva, eds. Urban growth and sustainable
habitats, Division of Marine Affairs and Policy, Rosenstiel School
of Marine and Atmospheric Science, University of Miami, Miami,
Florida.
Fox, K.J., President, Tomales Bay Association, Point Reyes
Station, California. Personal communication, Sept. 25, 1997.
Gentry, R. 1996. Motorized Personal Water Craft and Marine
Mammal Populations in Washington Sound, Washington. Technical paper.
Juttner, F., D. Backhaus, U. Matthias, U. Essers, R. Greiner,
and B. Mahr. 1995. Emissions of Two- and Four-Stroke Outboard
Engines--I. Quantifications of Gases and VOC. Wat. Res. Vol. 29, No.
8, 1976-1982.
Kelly, J., Resident Biologist, Audubon Canyon Ranch, Marshall,
California. Personal communication, Sept. 25, 1997.
Long, R., 1997. Polluting for Pleasure: Part II. Sail, January
1997.
Miller, G. and M. Fiore. 1997. Preliminary Study on Gasoline
Constitutents in Lake Tahoe, Summer, 1997. Environmental and
Resources Sciences Department, University of Nevada, Reno.
National Oceanic and Atmospheric Administration. 1992. Monterey
Bay National Marine Sanctuary Final Environmental Impact Statement
and Final Regulations. 57 FR 43310 (Sept. 18, 1992).
National Research Council. 1996. Toxicological and Performance
Aspects of Oxygenated Motor Vehicle Fuels. National Academy Press.
Osborne, R. 1996. ``Testimony and Exhibits Submitted to Board of
County Commissioners Regarding Restrictions on Use of Jet Skis in
San Juan County.'' Superior Court of Washington, for Whatcom County.
Richardson, J.W., C.R. Greene, Jr., C.I. Malme, and D.H.
Thomson, 1995. Marine Mammals and Noise. Academic Press, San Diego,
CA.
Rodgers, J.A. and H.T. Smith. 1997. Buffer zone distances to
protect foraging and loafing waterbirds from human disturbance in
Florida. Wildlife Soc. Bull., 25(1):139-145.
Snow, S. 1989. A Review of Personal Watercraft and Their
Potential Impact on the Natural Resources of Everglades National
Park. Technical paper.
Squillace, P.J., J.F. Pankow, N.E. Korte, and J.S. Zogorski.
1996. Environmental Behavior and Fate of Meth tert-Butyl Ether
(MTBE). U.S. Geological Survey Fact Sheet F5-203-96.
Sutherland, A.J. and D.G. Ogle. 1975. Effect of jet boats on
salmon eggs. N.Z. Journal of Marine and Freshwater Research,
9(3):273-82.
Tahoe Research Group. 1997. The Use of 2-Cycle Engine Watercraft
on Lake Tahoe: Water Quality and Limnological Considerations.
University of California, Davis.
Tjarnlund, U., G. Ericson, E. Lindesjoo, I. Petterson, and L.
Balk. 1995. Investigation of the Biological Effects of 2-Cycle
Outboard Engines' Exhaust on Fish. Marine Environmental Research.
39, 313-316.
[[Page 19952]]
U.S. Coast Guard. 1999. Recreational Boating Accident Statistics
1995 and 1996. www.uscgboating.org/stats.html. Accessed Feb. 1999.
PWIA vs. Department of Commerce, 48 F.3d 540 (D.C. Cir. 1995).
U.S. Department of the Interior. 1998a. Golden Gate National
Recreation Area. Code of Federal Regulations, Title 36, Chapter 1,
compendium amendment and Administrative Record.
U.S. Department of the Interior. 1998b. Point Reyes National
Seashore. Code of Federal Regulations, Title 36, Chapter 1,
compendium.
U.S. Department of the Interior. 1998c. Proposed Rule: Personal
Watercraft Use Within the NPS System. 63 FR 49312 (Sept. 15, 1998).
U.S. Fish and Wildlife Service. 1992. Management Agreement for
the Florida Keys Refuges--Monore County, Florida.
Wagner, K.J. 1994. Of hammacks and horsepower: the noise issue
at lakes. Lakeline, June 1994, pp. 24-28.
Woolley, T. 1996. Testimony prepared for the Superior Court of
Washington for Whatcom County.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Penalties, Recreation and
recreation areas, Reporting and recordkeeping requirements, Research.
Authority: 16 U.S.C. Section 1431 et seq.
(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary
Program)
April 3, 1999.
Ted Lillestolen,
Deputy Assistant Administrator, Ocean Services and Coastal Zone
Management.
Accordingly, for the reasons set forth above, 15 CFR 922, Subpart H
is proposed to be amended as follows:
PART 922, SUBPART H--THE GULF OF THE FARALLONES NATIONAL MARINE
SANCTUARY
1. Section 922.81 is amended by adding the following definition, in
the appropriate alphabetical order.
Sec. 922.81 Definitions.
* * * * *
Motorized personal watercraft means a vessel which uses an inboard
motor powering a water jet pump as its primary source of motive power
and which is designed to be operated by a person sitting, standing, or
kneeling on the vessel, rather than the conventional manner of sitting
or standing inside the vessel.
2. Section 922.82 is amended by adding new paragraph (a)(7) as
follows:
Sec. 922.82 Prohibited or otherwise regulated activities.
(a) * * *
(7)(i) Except for transit through an established access corridor
described in Appendix B to this subpart, operation of any motorized
personal watercraft from the mean high-tide line seaward to 1,000 yards
(approximately 0.5 nautical mile), including 1,000 yards seaward from
the Farallon Islands. The restricted areas include Drakes Bay, Tomales
Bay, Bolinas Lagoon, Estero Americano and Estero de San Antonio.
(ii) This prohibition shall not apply to the use of personal
watercraft for emergency search and rescue missions or law enforcement
operations carried out by National Park Service, U.S. Coast Guard, San
Francisco Fire or Police Departments or other Federal, State or local
jurisdictions.
* * * * *
3. A new appendix is added to subpart H, as follows:
Appendix B to Subpart H of Part 922--Access Corridor Within the
Sanctuary Where the Operation of Motorized Personal Watercraft Is
Allowed
There shall be an access corridor at Bodega Bay where MPWC can
launch and motor out to waters that are outside the 1,000 yard buffer
where operation of MPWC are prohibited. This access corridor shall be
between the following coordinates at Bodega Harbor: South Jetty: 38__
18'18'' N, 123__ 02'54'' W; North Jetty: 38__ 18'22'' N, 123__ 02'56''
W; and out 1,000 yards into the Bay on a 090__ T bearing.
[FR Doc. 99-9981 Filed 4-22-99; 8:45 am]
BILLING CODE 3510-08-M
