Regulation of the Operation of Motorized Personal Watercraft in
the Gulf of the Farallones National Marine Sanctuary
[Federal Register: September 10, 2001 (Volume 66, Number 175)]
[Rules and Regulations]
[Page 46942-46951]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se01-4]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 970626156-1021-04]
RIN 0648-AK01
Regulation of the Operation of Motorized Personal Watercraft in
the Gulf of the Farallones National Marine Sanctuary
AGENCY: Office of National Marine Sanctuaries, National Ocean Service
(NOS), National Oceanic and Atmospheric Administration (NOAA)
Department of Commerce.
ACTION: Final rule; notice of availability of environmental assessment.
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SUMMARY: NOAA amends the regulations governing activities in the Gulf
of the Farallones National Marine Sanctuary (GFNMS or Sanctuary) to
prohibit the operation of motorized personal watercraft (MPWC) within
the boundaries of the GFNMS. This regulation is necessary to protect
sensitive biological resources, to minimize user conflict, and to
protect the ecological, aesthetic, and recreational qualities of the
Sanctuary. NOAA also announces the availability of an Environmental
Assessment (EA) on the rule.
DATES: Effective October 10, 2001.
[[Page 46943]]
ADDRESSES: Copies of the Environmental Assessment are available upon
request from the Gulf of the Farallones National Marine Sanctuary, Fort
Mason, Building 201, San Francisco, CA 94123 (415) 561-6622.
FOR FURTHER INFORMATION CONTACT: Ed Ueber at (415) 561-6622.
SUPPLEMENTARY INFORMATION:
I. Background
In recognition of the national significance of the unique marine
environment of the Gulf of the Farrallones, California, the GFNMS was
designated in January 1981. The GFNMS regulations at 15 CFR part 922,
Subpart H prohibit a relatively narrow range of activities to protect
Sanctuary resources and qualities. On April 18, 1996, the Environmental
Action Committee (EAC) of West Marin, California, petitioned the GFNMS
to ban the use of MPWC in the Sanctuary. Operation of MPWC is currently
not regulated under GFNMS regulations. The EAC identified a number of
concerns regarding the use of MPWC within the Sanctuary. In its
petition, the EAC asserted that: MPWC are completely incompatible with
the existence of a marine sanctuary; pose a danger to the biological
resources of the sanctuary, such as marine mammals, wildfowl, kelp
beds, anadromous fish, and other marine life; create noise, water and
air pollution; and threaten mariculture and other commerce throughout
the Sanctuary. The EAC also stated that MPWC create a hazard for other
Sanctuary users, including swimmers, sailboats, windsurfers, open-water
rowing shells and kayaks. NOAA also received 195 letters from members
of the public in response to media publicity about the petition. Sixty-
four percent opposed regulation of MPWC; 33% supported the EAC's
requested ban; one percent expressed no clear opinion.
To supplement existing information on the use and impacts of MPWC,
NOAA published a Notice of Inquiry/Request for Information in the
Federal Register on August 21, 1997, initiating a 45-day comment period
that ended October 6, 1997. NOAA requested information on the
following: (1) The number of motorized personal watercraft being
operated in the Sanctuary; (2) possible future trends in such numbers;
(3) the customary launching areas for motorized personal watercraft in
or near the Sanctuary; (4) the areas of use of motorized personal
watercraft activity in the Sanctuary, including areas of concentrated
use; (5) the periods (e.g., time of year, day) of use of motorized
personal watercraft in the Sanctuary, including periods of high
incidence of use; (6) studies or technical articles concerning the
impacts of motorized personal watercraft on marine resources and other
users; (7) first person or documented accounts of impacts of motorized
personal watercraft on marine resources and other users; and (8) any
other information or other comments that may be pertinent to this
issue. NOAA received 160 public comments in response to the notice of
inquiry and two signature petitions during the comment period. One
hundred fifty-three (96%) supported banning the operation of MPWC
within the GFNMS. Two signature petitions were also received; one, with
276 signatures, supported the ban; the second, with 41 signatures,
opposed the ban. Forty-four people spoke at a public meeting held to
gather information during the comment period, all but one of who
supported the petition to ban MPWC operation. Half of the speakers at
the public meeting had previously submitted written comments.
Responses to and investigation of the specific questions in the
August, 1997 notice revealed that: (1) The number of MPWC currently
being operated in Sanctuary waters is believed to be 20 by the
proprietors of Lawson's Landing, the primary MPWC launch site in
Sanctuary waters, and these users make less than 200 launches per year;
(2) the use of MPWC in Sanctuary waters is believed to be increasing;
(3) there are two established MPWC launch sites in the Sanctuary, at
Bodega Harbor and Lawson's Landing; (4) the areas in the Sanctuary
where MPWC are operated are in the vicinity of the mouth of Tomales Bay
and the area outside Bodega Harbor-over 95% of MPWC operation that
occurs in the Sanctuary occurs in these areas; (5) April through
November appear to be the times of highest use of MPWC in Sanctuary
waters; (6, 7, and 8) numerous studies, technical articles, and
personal documentation such as photos, letters and logs of the impacts
of MPWC on marine resources and other users were received and
collected.
The following were identified during NOAA's review of this issue:
(1) Water-based recreational activity is increasing in the United
States; (2) water-based recreational activity has impacted coastal
habitats, seabirds, marine mammals and fish; (3) operation of MPWC is a
relatively new and increasingly popular water sport; (4) MPWC, are
different from other types of motorized watercraft in their structure
(smaller size, shallower draft, two-stroke engine, and exhaust venting
to water as opposed to air) and their operational impacts (operated at
faster speeds, operated closer to shore, make quicker turns, stay in a
limited area, tend to operate in groups, and have more unpredictable
movements); (5) MPWC have been operated in such a manner as to create a
safety hazard to other resource users in the vicinity; (6) MPWC may
interfere with marine commercial users; (7) MPWC have disturbed natural
quiet and aesthetic appreciation; (8) MPWC have interfered with other
marine recreational uses; (9) MPWC have impacted coastal and marine
habitats; (10) MPWC have disturbed waterfowl and seabirds; (11) MPWC
have disturbed marine mammals; (12) MPWC may disturb fish; (13) other
jurisdictions have had problems with MPWC and have proposed and
implemented various means of attempting to solve the problems; (14) the
Sanctuary has sensitive areas that were deemed worthy of protection by
the designation of a National Marine Sanctuary, including five State
designated Areas of Special Biological Significance and four semi-
enclosed estuarine areas; and (15) MPWC present a present and potential
threat to resources and users of the GFNMS.
Based on this information, the NMSP published a proposed rule to
prohibit operation of MPWC from the mean high tide line seaward to 1000
yards. The proposed rule was designed to protect Sanctuary resources
and minimizing user conflict in the nearshore areas. NOAA received 53
public comments on the proposed rule. Fifty-one commentors (96%)
supported a full ban on MPWC within the GFNMS and 2 (4%) opposed the
proposed regulations. On June 2, 1999, a public hearing to accept
comments on the proposed rule was held in Point Reyes, California. Five
people spoke at the public hearing. Three people spoke in favor of a
complete ban on MPWC within the GFNMS and two people spoke out against
the proposed 1000-yard restriction. Comments received on the April 23
rule and NOAA's responses were included in the preamble to the proposed
rule that was published in the Federal Register on May 22, 2000.
After considering the comments in response to the proposed rule,
reviewing new and recent MPWC regulations for agencies with contiguous
or overlapping boundaries, and reviewing recent biological information,
NOAA concluded that a total prohibition on the operation of MPWC would
be necessary to adequately protect Sanctuary resources. On May 22,
2000, NOAA published a notice of
[[Page 46944]]
withdrawal of the April 23, 1999 proposed rule, a new proposed rule for
the total prohibition of MPWC within the Sanctuary, and a notice of
availability of Draft Environmental Assessment (DEA). Comments on the
proposed rule and the DEA were accepted until June 21, 2000. In
addition, a public hearing was held on June 12, 2000. NOAA received 65
comments on the proposed rule. Fifty commentors (77%) supported a full
ban and 15 (23%) were opposed to the full ban. The comments and NOAA's
responses to them are provided below.
The waters of the Sanctuary are home to a rich diversity of
organisms and provide critical habitat for seabirds, marine mammals,
fishes, invertebrates, sea turtles and marine flora. The biological
importance and uniqueness of Sanctuary waters have been internationally
recognized by the incorporation of Sanctuary waters into the United
Nations' Man in the Biosphere system as part of the Golden Gate
Biosphere Reserve, and the designation of Bolinas Lagoon as a RAMSAR
(Convention for Wetlands of International Significance) site.
Because of its unique geology and geography, the biological
diversity found within the GFNMS rivals any location along the Pacific
coast. Fueled by the strongest coastal upwelling in North America
(Bakun, 1973), abundant biological resources thrive in the productive
waters of the Gulf's broad, shallow continental shelf. A counter-
clockwise eddy that swirls south of Point Reyes in the Gulf of the
Farallones concentrates the products of upwelling (Wing et al., 1995)
and acts like an incubator for small developing animals. These in turn
are food for organisms higher on the food web. The result is a marine
system that supports some of the most active commercial fisheries on
the west coast, provides food and habitat to support the largest
concentration of breeding seabirds in the continental United States and
supports roughly 20% of the breeding population of California's harbor
seals. The offshore area of the Sanctuary provides important habitat
for federally endangered blue, humpback, fin, sei and sperm whales, and
provides habitat for up to 50% of all the ashy storm petrels in the
world and 90% of all the common murres in their southern range. Harbor
porpoise, Steller sea lions, Pacific white sided dolphins, Dall's
porpoise, California sea lions, common murres, Cassin's auklets,
rhinoceros auklets, three species of cormorants, two species of grebes,
tufted puffins, pigeon guillemots, marbled murrelets, black footed
albatross, storm petrels, shearwaters, fulmars and many species of
seabirds and marine mammals that are less abundant also depend on the
offshore areas of the Sanctuary to provide food and shelter.
The Gulf of the Farallones is a destination feeding area for
protected white sharks (Klimley and Ainley, 1996) and endangered blue
and humpback whales (Kieckhefer, 1992). The sharks aggregate in coastal
areas and near the Farallon islands from spring through fall to feed on
an abundance of seals and sea lions. The whales travel from Mexico to
feed on the concentrations of krill and forage fish found in the
Sanctuary. From spring through late summer, krill swarm in the surface
layers of the Gulf (Smith and Adams, 1988). It is during these daytime
surface swarms that krill are most vulnerable to predators. Endangered
whales, seabirds and salmon feed heavily on krill when krill are
concentrated in these surface aggregations. Ten percent of California's
threatened coho salmon population feed in the outer Sanctuary during
the ocean phase of their life history before returning to spawn in
Lagaunitas Creek and its tributaries. Recently listed populations of
chinook salmon also feed in the Gulf of the Farallones as adults before
returning to the Sacramento River drainage to complete their life
cycle. Gray whales pass through the Sanctuary twice a year on their
migration route between winter calving grounds in Mexico and summertime
feeding areas in Alaska. In recent years, more individual gray whales
are remaining in the Gulf of the Farallones throughout the year to feed
instead of proceeding to the feeding grounds in Alaska.
The protected bays and coastal wetlands of the Sanctuary, such as
Bodega Bay, Tomales Bay, Drakes Bay, Bolinas Lagoon, Estero Americano
and Estero de San Antonio, include intertidal mudflats, sand flats,
salt marshes, submerged rocky terraces, and shallow subtidal areas.
These areas support large populations of benthic fauna and
concentrations of burrowing organisms and organisms living on marine
plants. Submerged eelgrass (Zostera marina) beds are prevalent in the
northern portion of Tomales Bay and provide crucial feeding habitat for
more than 50 resident, breeding, and migratory bird species. These
eelgrass beds are also important for many marine invertebrates and for
the developing egg masses of herring and other fishes. It is estimated
that approximately 30 million herring spawn annually on the eelgrass
beds of Tomales Bay (Fox, 1997). The shallow protected bays and
estuaries within the Sanctuary, such as Tomales Bay, Drakes Bay,
Bolinas Lagoon, and the esteros, are important habitat for anadromous
fish, several species of surfperches, sharks, rays and flatfish. Over
150 species of fish are found in the Sanctuary including the federally
endangered winter-run Chinook salmon and the federally threatened coho
salmon, spring run Chinook salmon, steelhead trout and tidewater goby.
Among the hundreds of bird species that reside in or migrate
through the Sanctuary, many are endangered, threatened or of special
concern. These include the following species which are found in the
Sanctuary and on the Farallon Islands (Key: FE=Federally listed as
endangered; FT=Federally listed as threatened; SE=listed in the State
of California as endangered; ST=listed in the State of California as
threatened; CSC=California species of concern):
Swimmers [ducks and duck-like]:
Aleutian Canada Goose....... Branta canadensis FT
leucopareia.
Barrow's Goldeneye.......... Bucephala CSC
islandica.
Common Loon................. Gavia immer....... CSC
Double-crested Cormorant.... Palacrocorax CSC
auritus.
Harlequin Duck.............. Histrionicus CSC
histrionicus.
Marbled Murrelet............ Brachyramphus FT/SE
marmoratus.
Aerialists [gulls and gull-
like]:
American White Pelican...... Pelecanus CSC
erythorhynchos.
Ashy Storm Petrel........... Oceanodroma CSC
homochroa.
California Brown Pelican.... Pelecanus FE/SE
occidentalis
californicus.
California Gull............. Larus californicus CSC
California Least Tern....... Sterna antillarum FE/SE
browni.
Elegant Tern................ Sterna elegant.... CSC
Short-tailed Albatross...... Diomedea albatrus. FE
[[Page 46945]]
Long-legged waders [herons,
cranes, etc.]:
California Black Rail....... Laterallus ST
jamaicensis
corurniculus.
Smaller waders [plovers,
sandpipers, etc.]:
Long-billed Curlew.......... Numenius CSC
americanus.
Western Snowy Plover Charadrius FT/CSC
(coastal). alexandrinus niv..
Birds of prey [hawks, eagles,
owls]:
Bald Eagle check status..... Haliaeetus FT
leucocephalus.
Ferruginous Hawk............ Buteo regalis..... CSC
Osprey...................... Pandion haliaetus. CSC
Prairie Falcon.............. Falco mexicanus... CSC
Peregrine Falcon............ Falco peregrinus.. FE
Passerine birds [perching]:
Saltmarsh common Geothlypis trichas CSC
yellowthroat. sinuosa.
There are at least twelve critical marine bird nesting areas along
the shoreline of the Sanctuary. More than twelve species of marine
birds breed within the Sanctuary and the nesting population on the
Farallon Islands is the largest concentration of breeding marine birds
in the continental United States. During nesting and rearing of young,
these sea birds are especially dependent on the Sanctuary waters for
food.
Thirty-three species of marine mammals have been observed in the
Sanctuary including six species of pinnipeds, one mustelid and twenty-
six species of cetaceans. About 20% of the state's breeding population
of harbor seals live within the boundaries of the Sanctuary, and
northern fur seals are starting to recolonize historic pupping sites
within the Sanctuary for the first time since 1820. Of the twenty-six
species of cetaceans that occur in Sanctuary waters, nineteen are
migratory, and seven are considered resident species. Many of these
marine mammals occur in large concentrations and are dependent on the
productive and secluded habitat of the Sanctuary's waters and adjacent
coastal areas for breeding, pupping, hauling-out, feeding, and resting
during migration. Three areas in the Sanctuary have been identified as
critical feeding areas for the threatened Steller sea lion, including
the nearshore areas around Point Reyes, the northern half of Tomales
Bay and areas adjacent to the Farallon Islands.
Humpback and blue whales migrate to offshore areas of the Sanctuary
each summer to feed. Fin, sei and sperm whales also frequent this area
when prey are abundant. Harbor seals, elephant seals, California sea
lions, Dall's porpoise, harbor porpoise and gray whales are common
residents in Sanctuary waters. Gray whales pass through the Sanctuary
twice a year on their migration route between winter calving grounds in
Mexico and summertime feeding areas in Alaska. In recent years,
individuals have remained in the Gulf of the Farallones to feed instead
of proceeding to the feeding grounds in Alaska. Since 1999, gray whales
have been feeding in Bodega Bay and cow-calf pairs have been entering
coastal embayments in unprecedented numbers. Some individuals have
acclimated to conditions in the Sanctuary and are now year-round
residents. Four species of endangered sea turtles are also known to
reside in or migrate through Sanctuary waters. A listing of all
threatened and endangered marine mammals and sea turtles follows (Key:
FE=Federally listed as endangered; FT=Federally listed as threatened;
ST=listed in the State of California as threatened).
Pinnipeds:
Guadelupe fur seal.......... Arctocephalus FT/ST
townsendi.
Steller (Northern) sea lion. Eumetopias jubatus FT
Mustelids:
Southern sea otter.......... Enhydra lutris FT
nereis.
Cetaceans:
Blue whale.................. Balaenoptera FE
musculus.
Humpback whale.............. Magaptera FE
noveangliae.
Sei whale................... Balaenoptera FE
robustus.
Sperm whale................. Physeter FE
macrocphalus.
Fin whale................... Balaenoptera FE
physalus.
Sea Turtles:
Green turtle................ Chelonia mydas.... FE
Leatherback turtle.......... Dermochelys FE
coriacea.
Loggerhead turtle........... Caretta caretta... FE
Olive (Pacific) ridley...... Lepidochelys FE
olivacea.
Several populations of marine mammals are starting to recover from
near extinction after years of human exploitation. As populations begin
to rebound, individuals are expanding the populations' distributions
back to historic ranges. In many instances, such as the sea otters,
gray whales, northern fur seals and elephant seals, animals are using
areas that have not been utilized for decades. It is critical for the
Sanctuary to provide habitat that was historically available and allow
these populations to return to their natural levels.
The offshore waters of the Sanctuary also provide entrance and
egress for commercial shipping traffic using ports in San Francisco
Bay. Tankers and container ships traverse the Sanctuary in three
offshore shipping lanes that direct traffic from different directions
in and out of San Francisco Bay. These offshore waters also support an
active sport and commercial fishery. Small skiffs and larger commercial
vessels troll at constant speeds or drift through the Sanctuary waters
fishing for salmon and albacore. Rockfish and urchin boats fish the
high spots and reefs closer to shore. On the softer sediment of the
continental shelf, crab fishermen lay out their lines of crab pots each
one identified with a buoy at the surface. All of these activities have
gear in the water that is independent from or is attached but extends
some distance from the boat. The gear is not readily apparent to the
casual observer. Fishermen are generally aware of how gear types are
deployed and operated. In cases where
[[Page 46946]]
the potential for conflict arises, most boats operating offshore have
navigation equipment and radios to communicate with each other.
Commercial whale watching and seabird operations regularly use the
offshore area of the Sanctuary for wildlife viewing opportunities. In
1999, 3500 people visited the Sanctuary on one commercial company's
whale watching trips (Mary Jane Schramm, Oceanic Society, pers. comm.
10 April 2000).
The nearshore waters of the Sanctuary are the areas most heavily
used for recreation. Areas such as Tomales Bay and Dillon Beach in
Bodega Bay are used for fishing, sailing, canoeing, rowing, kayaking
and swimming. These activities are often conducted very close to shore
and may be dependent on calm waters. Other activities conducted in the
nearshore area of the Sanctuary that could be affected by MPWC include
diving, windsurfing, surfing and bodyboarding.
Several Federal resource agencies have recognized MPWC as a unique
type of recreational vessel that is relatively recent in origin (U.S.
Fish and Wildlife Service, 1992; NOAA, 1992; U.S. Dept. of Interior,
1998c). MPWC are designed to be operated at high speeds, closer to
shore, and to make quicker turns than other types of motorized vessels.
MPWC have a disproportional thrust capability and horsepower to vessel
length and/or weight, in some cases four times that of conventional
vessels (U.S. Dept. of Interior, 1998c). Research indicates that
impacts associated with MPWC tend to be locally concentrated, producing
effects that are more geographically limited yet potentially more
severe than motorboat use, due to repeated disruptions and an
accumulation of impacts in a shorter period of time (Snow, 1989). MPWC
are generally of smaller size, with a shallower draft (4 to 9 inches),
and lower horsepower (around 75, as compared to up to 250 for large
pleasure craft) than most other kinds of motorized watercraft
(Ballestero, 1990; Snow, 1989). The smaller size and shallower draft of
MPWC means they are more maneuverable, operable closer to shore and in
shallower waters than other types of motorized watercraft. This
maneuverability greatly increases the potential for MPWC to disturb
fragile nearshore habitats and organisms. Although wakes of MPWC may be
smaller than wakes of conventional motorboats, they can be more
damaging (e.g., flooding of coastal bird nests; erosion of shoreline)
because MPWC are often operated faster, closer to shore and repeatedly
in the same area (Snow, 1989).
MPWC are powered by a jet-propelled system that typically involves
a two-stroke engine with an exhaust expulsion system that vents into
the water. The two-stroke engines found on the vast majority of MPWC in
the United States discharge more of their fuel (ranging from 10% to
more than 50% of the unburned fuel/oil mixture, depending on
manufacturing conditions and operating variables) than four-stroke
engines (Tahoe Research Group, 1997). These emissions pose a serious
threat to the environment, as two-stroke engines introduce more
volatile organic compounds (by as much as a factor of 10) into the
water than four-stroke engines (Juttner et al., 1995; Tjarnlund et al.,
1995). These emissions can have significant adverse impacts in many
areas of the Sanctuary, particularly shallow nearshore coastal areas,
estuaries, and open ocean surface waters.
Research indicates that MPWC can increase turbidity and may
redistribute benthic invertebrates, and these impacts may be prolonged
as a result of repeated use by multiple machines in a limited area.
Research has shown that MPWC can foul water with their discharge, and
increase local erosion rates by launching and beaching repeatedly in
the same locations (Snow, 1989). Research in the Everglades National
Park indicated that fishing success dropped to zero when fishing
occurred in the same waters used by MPWC, and scientists in the Pacific
Northwest have been concerned about the effects of MPWC on spawning
salmon (Snow, 1989; Sutherland and Ogle, 1975). Research in Florida
indicates that MPWC cause wildlife to flush at greater distances, with
more complex behavioral responses than observed in disturbances caused
by automobiles, all-terrain vehicles, foot approach, or motorboats.
This was partially attributed by the scientists to the typical
operation of MPWC, where they accelerate and decelerate repeatedly and
unpredictably, and travel at fast speeds directly toward shore, while
motorboats generally slow down as they approach shore (Rodgers, 1997).
Scientific research also indicates that even at slower speeds, MPWC
were a significantly stronger source of disturbance to birds than were
motorboats. Levels of disturbance were further increased when MPWC were
used at high speeds or outside of established boating channels (Burger,
1998). Research notes that declining nesting success of grebes, coots,
and moorhens in the Imperial National Wildlife Refuge were due to the
noise and physical intrusion of MPWC (Snow, 1989). In addition, MPWC
have been observed flushing wading birds and nesting osprey from their
habitats, contributing to abnormally high numbers of abandoned osprey
nests on certain islands in the Florida Keys (U.S. Fish and Wildlife
Service, 1992). The number of active osprey nests in the lower Florida
Keys ``backcountry'' dropped from five to zero between 1986 and 1990.
Biologists believe this was due to MPWC flushing parents from the nests
(Cuthbert and Suman, 1995). Research suggests that declines in nesting
birds in some states occurred simultaneously with MPWC operation.
Numerous shoreline roost sites exist within the Sanctuary and
research has shown that human disturbance at bird roost sites can force
birds to completely abandon an area. Published evidence strongly
suggests that estuarine birds may be seriously affected by even
occasional disturbance during key parts of their feeding cycle, and
when flushed from feeding areas, such as eelgrass beds, will usually
abandon the area until the next tidal cycle (Kelly, 1997). Seabirds
such as common murres and sooty shearwaters often form large
aggregations on the surface of the ocean. Feeding aggregations of sooty
shearwaters can often number in the thousands and cover significant
offshore areas. These feeding flocks are ephemeral in nature and their
movement is dictated by the availability of their prey. These seabirds
are especially susceptible during these critical periods and
disturbance could have negative impacts on them.
There is a general conclusion that marine mammals are more
disturbed by watercraft such as MPWC, which run faster, on varying
courses, or often change direction and speed, than they are by boats
running parallel to shore with no abrupt course or major speed changes.
Researchers note that MPWC may be disruptive to marine mammals because
they change speed and direction frequently, are unpredictable, and may
transit the same area repeatedly in a short period of time. In
addition, because MPWC lack low-frequency long distance sounds
underwater, they do not signal surfacing mammals or birds of
approaching danger until they are very close to them (Gentry, 1996;
Osborne, 1996). Possible disturbance effects of MPWC on marine mammals
could include shifts in activity patterns and site abandonment by
harbor seals and Steller sea lions; site abandonment by harbor
porpoise; injuries from collisions; and avoidance by whales (Gentry,
1996; Richardson et al., 1995).
[[Page 46947]]
The offshore area of the Sanctuary is a destination feeding ground
for endangered blue and humpback whales. Fin, sei, and sperm whales
also frequent offshore areas to forage. The recent MPWC bans
implemented by PRNS and GGNRA limit the nearshore areas of the
Sanctuary where MPWC can be operated and increase the likelihood that
MPWC will be used in the Sanctuary's offshore area. The traffic route
from the launch site in Bodega Harbor through Bodega Bay to and from
this offshore area would put MPWC in offshore feeding areas for
federally listed seabirds, marine mammals, and salmon. It would also
cross the migration corridor for gray whales and put MPWC in close
proximity to gray whale feeding areas in Bodega Bay. Gray whales pass
through the Sanctuary twice a year on their migration route between
winter calving grounds in Mexico and summertime feeding areas in
Alaska.
In 1995, some gray whales began feeding in the Gulf of the
Farallones in lieu of completing their yearly migration to Alaskan
feeding grounds and some of these animals are beginning to reside in
the Gulf year-round. Since 1999, gray whales have been feeding in
Bodega Bay in unprecedented numbers. Some individuals have acclimated
to conditions in the Sanctuary and are now year round residents. In
early summer, gray whales begin foraging in Bodega Bay with the most
recent feeding activity documented in early April, 2000 (Dr. Sarah
Allen, Point Reyes National Seashore, pers. comm. April 11, 2000).
Historically, there were four launch sites used by MPWC to access
Sanctuary waters: Lawson's Landing at Dillon Beach, Millerton Point
Park, Inverness, and Bodega Harbor. Millerton Point Park and Inverness
are now closed to launching MPWC as a result of the prohibition against
MPWC operation in PRNS and GGNRA. Lawson's Landing is in Marin County
and was closed to MPWC by the 1999 County ordinance but can be used at
the present time because of the tentative ruling by the Marin Superior
Court on September 13, 2000, described above. Currently, the only
remaining egress into the Sanctuary is from Lawson's Landing and from
Bodega Harbor in Sonoma County. Use by MPWC of an egress corridor from
Bodega Harbor in Sonoma County would put MPWC in the same vicinity as
the feeding whales. Gray whales have not been observed in Bodega Bay
when MPWC are using the area. With site affinity not firmly established
for gray whales starting to feed in Bodega Bay, it's important that
these whales be allowed to forage without repeated disturbance.
Endangered blue whales were also observed feeding two miles off of
the Point Reyes headlands during July of 1999. This is unusually close
to shore for these animals, whose numbers in the area comprise a major
concentration for the world, and who normally forage farther offshore.
This unpredictable blue whale feeding activity demonstrates the
importance of protecting all of the Sanctuary's waters. As marine
mammal populations begin to recover from years of harvesting pressure,
it is difficult to predict what areas of the Sanctuary will be
utilized. Humpback whales regularly feed in areas outside NOAA's
previously proposed 1000 yard buffer (Kiekhefer, 1992). During summer
and fall more than 100 humpback whales can be observed moving around
the Gulf of the Farallones following concentrations of herring,
sardines, or krill that are their favorite prey. Humpbacks use bubble
nets and other behavioral adaptations during feeding to drive their
prey to the surface where they are trapped by the air-sea interface and
captured.
Federally listed Southern sea otter populations are also recovering
from near extinction and recolonizing areas within their historic
range. Sitings of sea otters in the GFNMS have increased from two
individuals in 1992 to 20 animals in 1998 (Dr. Sarah Allen, Point Reyes
National Seashore, pers. comm. July, 1999). Prior to the designation of
the Monterey Bay National Marine Sanctuary, an otter in that area was
struck and killed by an MPWC. (NOAA 1990, Volume 1). Operation of MPWC
in GFNMS could put these animals at risk in an area that appears to be
providing habitat and an opportunity for the species' survival.
In Sanctuary waters beyond three nautical miles are found 11
federally endangered and 7 threatened species of birds, fish, turtles,
and marine mammals, and 50% of all the ashy storm petrels in the world
and 90% of all the common murres in their southern range. These waters
are a destination feeding area for concentrations of endangered blue
and humpback whales, feeding summer resident fin, sei and sperm whales,
endangered winter run chinook and coho salmon.
MPWC have significant potential to interfere with a large number of
other Sanctuary users. Numerous respondents to the Notice of Inquiry/
Request for Information and the April 23, 1999, proposed rule and the
subsequent revised proposed rule on May 22, 2000, noted that MPWC were
interfering with, and often jeopardizing the well-being of, swimmers,
kayakers, canoeists, and other boaters and users of the Sanctuary. MPWC
have been involved in numerous accidents, and thus pose a hazard to
other vessels and water users. Although MPWC make up approximately 11%
of vessels registered in the country (U.S. Dept. of Interior, 1998c),
Coast Guard statistics show that in 1996 MPWC were involved in 36% of
all watercraft accidents (U.S. Coast Guard, 1999). In addition,
numerous commentors noted that the operation of MPWC diminishes the
aesthetic qualities of many coastal and ocean areas, and may interfere
with other economic uses, such as tourism.
II. Summary of Comments and Responses
Comment 1: MPWC operation should be prohibited throughout the
entire Sanctuary.
Response: NOAA agrees. After consideration of all comments, the
latest biological information on impacts of MPWC in offshore areas,
regulations promulgated by other resource agencies with adjacent or
overlapping jurisdiction, and conflicts with other Sanctuary users,
NOAA has concluded that a Sanctuary-wide prohibition on the operation
of MPWC is necessary and the best way to protect the Sanctuary's
resources.
Comment 2: MPWC operation should not be prohibited throughout the
entire Sanctuary.
Response: NOAA disagrees. See response to Comment 1.
Comment 3: MPWC should be regulated by a seasonal ban because the
presence of whales in the Sanctuary is seasonal.
Response: NOAA disagrees. A seasonal ban will not provide adequate
year-round protection to whales in the GFNMS. NOAA believes that a
seasonal ban will not give adequate protection to Gray whales because
Gray whales have been observed in the Sanctuary every month of the year
since 1995. Prior to that, Gray whales were commonly seen from March 1-
December 1 and often seen in February. As indicated in the final EA,
researchers have indicated that MPWC may disrupt marine mammals because
MPWC change speed and direction frequently, are unpredictable, and may
transit the same area repeatedly in a short period of time. Although
MPWC lack low-frequency long distance sounds underwater this does not
mean that marine mammals are not adversely impacted by MPWC noise.
Whether the noise is heard at close range or farther away, it still
will disturb marine mammals which may cause shifts in activity
patterns, site abandonment, or avoidance. Since
[[Page 46948]]
marine mammals are limited to close range detection of MPWC noise and
activity there is a greater chance of collision.
In addition, whales are not the only wildlife that inhabit the
Sanctuary that are disturbed and negatively impacted by the use of
MPWC. A seasonal closure may only offer protection to one or two
specific species, but not to the other 33-marine mammals or the
hundreds of bird and fish species found throughout the Sanctuary on a
year-around basis. Although the concentration of certain species does
occur on a seasonal basis, the seasonal overlay among species is
continuous throughout the year and a seasonal prohibition would not
provide full protection.
A seasonal ban will also not adequately address the other concerns
related to MPWC use in the Sanctuary such as noise, conflicts with
other Sanctuary users, turbidity, and water quality concerns related to
2-stroke engines. A more detailed explanation of these concerns is
found in response to comment numbers 7, 8, and 6.
Comment 4: MPWC threaten and disturb wildlife in the Sanctuary.
Response: NOAA agrees. Research in Florida indicates that MPWC
cause wildlife to flush at greater distances, with more complex
behavioral responses than observed in disturbances caused by
automobiles, all-terrain vehicles, foot approach, or motorboats. This
was partially attributed by the scientists to the typical operation of
MPWC, where they accelerate and decelerate repeatedly and
unpredictably, and travel at fast speeds directly toward shore, while
motor boats generally slow down as they approach shore (Rodgers, 1997).
Scientific research also indicates that even at slower speeds, MPWC
were a significantly stronger source of disturbance to birds than were
motor boats. Levels of disturbance were further increased when MPWC
were used at high speeds or outside of established boating channels
(Burger, 1998).
There is a general conclusion that marine mammals are more
disturbed by watercraft such as MPWC, which run faster, on varying
courses, or often change direction and speed, than they are by boats
running parallel to shore with no abrupt course or major speed change.
In addition, because MPWC lack low-frequency long distance sounds
underwater, they do not signal surfacing mammals or birds of
approaching danger until they are very close to them (Gentry, 1996;
Osborne, 1996). Documented disturbance effects of MPWC on marine
mammals could include shifts in activity patterns and site abandonment
by harbor seals and Steller sea lions; site abandonment by harbor
porpoise; injuries from collisions; and avoidance by whales (Gentry,
1996; Richardson et al., 1995).
Comment 5: MPWC disturb the tranquility of the Sanctuary.
Response: NOAA agrees. The use of MPWC can conflict with other
users of the Sanctuary who use it solely for aesthetic purposes.
Comment 6: MPWC cause ``unacceptable'' pollution as a result of
their two-stroke engines.
Response: NOAA agrees. MPWC are powered by a jet-propelled system
that typically involves a two-stroke engine with an exhaust expulsion
system that vents directly into the water. The two-stroke engines found
on the vast majority of MPWC in the United States discharge more of
their fuel (ranging from 10% to more than 50% of the unburned fuel/oil
mixture, depending on manufacturing conditions and operating variables)
than four-stroke engines found on many conventional recreational boats
(Tahoe Research Group, 1997). These emissions pose a serious threat to
the environment, as two-stroke engines introduce more volatile organic
compounds (VOCs) (by as much as a factor of 10) into the water than
four-stroke engines (Juttner et al., 1995; Tjarnlund et al., 1995).
These emissions can have significant adverse impacts in many areas of
the Sanctuary, particularly shallow nearshore coastal areas and
estuaries.
Comment 7: NOAA proposes to ban MPWC because their two-stroke
engines release pollutants into the water even though other
recreational vessels with two-stoke engines are free to operate
throughout the Sanctuary.
Response: NOAA disagrees. NOAA acknowledges that motorized
watercraft with two-stroke engines other than MPWC are not restricted
in the Sanctuary but, as indicated in response to comment 6, there are
negative water quality impacts associated with MPWC's engine exhaust
and subsequent discharge of VOCs into the water column. However, the
proposed ban on MPWC two-stroke engines is not the sole reason why NOAA
proposes a complete ban of MPWC throughout the Sanctuary. There are
several factors NOAA has taken into consideration while proposing this
ban of MPWC that cumulatively, indicate that a total ban is necessary
including wildlife disturbance, user conflicts, and safety concerns (as
detailed in the responses to comments 4, 8, 9, and 17). Other
watercraft that are propelled by two-stroke engines do not have the
same level of cumulative adverse impacts to Sanctuary resources as that
of MPWC, therefore NOAA is not proposing a total ban of their use in
Sanctuary waters.
Comment 8: MPWC cause ``unacceptable'' noise levels, that disturb
marine wildlife (marine mammals, seabirds) as well as human visitors to
the Sanctuary.
Response: NOAA agrees. In general, unless modified by the operator
(i.e., removal or alteration of the muffler), MPWC do not appear to be
any louder in the air than similarly powered conventional motorized
watercraft (MPWC and conventional watercraft both registered between 74
and 84 decibels in tests conducted in 1990) (Woolley, 1996) and appear
to be quieter underwater (Gentry, 1996). MPWC may be perceived as being
louder than other boats because they can travel faster, closer to
shore, often travel in groups, tend to frequently accelerate and
decelerate, and ``wake-jump.'' These characteristics create uneven,
persistent noise apparently more bothersome to people and potentially
to wildlife. In addition, research indicates that the constancy of
speed figures into noise generation, as most people adjust to a
constant drone and cease to be disturbed by it, even at elevated
levels, but the changes in loudness and pitch of MPWC are more
disturbing to people than other watercraft (Wagner, 1994). In addition,
many MPWC operators alter or remove the mufflers to enhance craft
performance, thus increasing the noise generated by their craft.
Comment 9: MPWC operation presents a user conflict with other
Sanctuary users and poses a threat to anyone engaging in other
recreational activities.
Response: NOAA agrees. The Sanctuary encourages multiple uses of
its waters that are compatible with resource protection. When used as
designed and in the current manner, MPWC have significant potential to
interfere with a large number of other Sanctuary users. Numerous
respondents to the proposed rule noted that MPWC were interfering with,
and often jeopardizing the well-being of, swimmers, kayakers,
canoeists, and other recreational boaters and users of the Sanctuary.
MPWC have been involved in numerous accidents, and thus pose a hazard
to other water users. Although MPWC make up approximately 11% of
vessels registered in the country (U.S. Dept. of Interior, 1998c),
Coast Guard statistics show that in 1996, 36% of all watercraft
involved in accidents were MPWC (U.S. Coast Guard, 1999). While this
accident data is not site specific to the Sanctuary, it does
demonstrate that the potential for
[[Page 46949]]
accidents does exist and that MPWC have a higher ratio of accidents
than other motorized watercraft.
Additional comments received noted that the operation of MPWC in
nearshore areas diminishes the aesthetic qualities of many beach and
recreational areas, and may interfere with other economic uses of the
areas based upon these aesthetic qualities.
Comment 10: A partial ban on MPWC use would be impossible to
enforce.
Response: NOAA agrees. A partial ban at 100 yards, 1000 yards, or
event three nautical miles would be difficult to enforce. In a
tentative ruling issued September 13, 2000, the Superior Court in Marin
County rejected the County's ordinance prohibiting MPWC operation was
rejected by the Marin for being vague, in part because of the
difficulty in knowing where MPWC could be operated in the County's
jurisdiction out to three-miles. Before the Marin County ban, there was
difficulty enforcing the Point Reyes National Seashore's one quarter
mile restriction.
Despite local rider's attempt at self-policing and their efforts to
create no ride zones, violations were chronic and regulations were hard
to enforce. A total prohibition will provide a clear and simple
enforcement rule within the GFNMS, will avoid confusion and will avoid
the cost of installation and maintenance of a delineation system.
Delineation of MPWC zones with buoys is in place at the Monterey
Bay National Marine Sanctuary (MBNMS) and it is needed for enforcement
because MPWC lack standard navigational equipment and chart storage.
MBNMS's regulation delineates four near harbor areas and bouys are in
place to mark the boundary. The Florida Keys National Marine Sanctuary
(FKNMS) does not have a specific MPWC regulation, however there are a
number of small areas that are closed to motorized vessels. These areas
are delineated by spar buoys or 30 inch buoys every 400 to 600 feet.
The annual cost of maintenance and placement of each buoy is $250-$500
respectively (Upper Keys Manager, Lt.Cdr. David Savage, pers.com.
October 3, 2000). These buoys are placed in shallow (1-2 fathoms
maximum 12 feet) water. Because of weather and sea conditions, the
GFNMS would require a 48 inch or larger buoys placed at a depth of 15-
41 fathoms (90-246 feet) at a cost of $2,000 to $5,000 each. These
larger buoys are needed because of ground tackle requirements for sea
conditions. In addition, if the GFNMS were to place buoys 1,200 feet
apart (double the width of the FKNMS placement), a minimum of 4,000
buoys would be required to indicate channels and closed areas (5 buoys
per nautical mile to mark 80 nautical miles).
Comment 11: NOAA denied commentors due process because public
comment meetings were in remote locations and electronic comments were
not accepted.
Response: NOAA disagrees. As part of this process, NOAA held one
public scoping meeting and two public hearings. All of the meetings
were held at the Bear Valley Visitor Center of the Point Reyes National
Seashore. This is a central location for the GFNMS and one visited by
over 1,300,000 people annually. It is well known and easy to find. In
addition, maps to the Center were provided upon request. A private
meeting with the industry representatives was also held. Over three
months of time was provided for written comments in this and the
previous proposed rule.
NOAA believes that it has provided sufficient opportunities for
members of the public to comment on this issue and has fulfilled all
public notice requirements. NOAA is not required to accept electronic
comments and does not yet have a formal policy on this issue.
Comment 12: NOAA's conclusions are based on inaccurate and outdated
information.
Response: NOAA has considered the most current information
available in its deliberations regarding the regulation of MPWC in the
Sanctuary. Much of the information is from 1997 and 1998 data. The
sources are reliable, well-known and respected in their fields, and
have knowledge and experience in the Gulf of Farallones National Marine
Sanctuary. Please refer to source citations located in the Bibliography
of the Environmental Assessment.
Comment 13: Prohibiting MPWC operation without prohibiting
operation of other motorized craft is unfair discrimination.
Response: NOAA disagrees. No other vessel type has demonstrated so
many wide and varied detrimental aspects as MPWC. These aspects
include: noise disturbance to wildlife and humans; discharge of VOC
pollution and water quality impacts; physical disturbance to marine
mammal, bird, and fish from frequent and erratic movement and fast
speeds; and interference with other Sanctuary users (swimmers,
kayakers, canoeists, other boaters, sailors, hikers, beach goers, whale
and bird watchers, and people looking for a wilderness experience and
aesthetic appreciation). These impacts are supported by scientific
information data and provide justification as to why a ban is
necessary. NOAA has not received comments or complaints on these types
of cumulative disturbances caused by other vessel types.
Comment 14: NOAA failed to address the current regulations in the
Hawaiian Islands Humpback Whale and Florida Keys National Marine
Sanctuaries.
Response: NOAA disagrees. NOAA believes that an accurate comparison
between the Gulf of the Farallones and the Hawaiian Islands Humpback
Whale and Florida Keys National Marine Sanctuaries cannot be made
because none of these three Sanctuaries have similar climates,
hydrodynamics, boundary and shoreline delineation, or species
composition.
The Hawaiian Islands Humpback Whale National Marine Sanctuary
protects a single species and it is not required to address the
complexity of the species composition at GFNMS, which has 33 marine
mammal, 400 bird, and hundreds of fish species. The Florida Keys
National Marine Sanctuary (FKNMS) does have a current restriction on
MPWC use within 100 yards of residential shoreline to a no-wake speed
(including other motorized vessels). However, in October 1999, the
FKNMS Sanctuary Advisory Council decided that these strategies had been
ineffective and voted to advise the Sanctuary managers to consider new
regulations that could result in additional restrictions to MPWC in
Florida.
NOAA believes regulations for each National Marine Sanctuary must
be considered on a case-by-case basis, taking into account the unique
features of each location, including living resources, physical
characteristics, and use.
Comment 15: NOAA has changed the regulations as a result of
pressure from MPWC opponents.
Response: NOAA disagrees. NOAA has considered all information
carefully and in an unbiased manner based on the information found in
the scientific literature, public documents, and comments by MPWC users
and nonusers alike. Based upon new and recent regulations for areas
with contiguous and overlapping boundaries, the latest biological
information on impacts of MPWC in offshore areas, as well as conflicts
with other Sanctuary users, NOAA has determined that a Sanctuary-wide
prohibition on the operation of MPWC is necessary and the best way to
adequately protect the Sanctuary's resources. NOAA's initial proposal
of a 1,000 yard buffer would have only protected 5% of the Sanctuary
from the impacts of MPWC operation, leaving the remaining 95% of the
Sanctuary at risk. The complete ban
[[Page 46950]]
of MPWC in GFNMS will ensure full protection to marine resource that
could otherwise be affected.
The May 22, 2000, Federal Register notice for GFNMS withdrawal and
notice of proposed rule, specifically states that the action was taken
in response to the petition from the Environmental Action Committee of
West Marin and to comments received in response to a proposed rule that
NOAA published on April 23, 1999. Additional information on effects of
MPWC to wildlife in GFNMS has been gathered since the original proposed
ban of 1,000 yards from shore. As outlined in the May 22, 2000 notice,
observations in July 1999 indicate that blue whales which had
previously only been seen offshore at depths of 100 fathoms or more,
were observed closer to shore at 40 to 50 fathoms and one sighting at
20 fathoms. These offshore observations of Gray whales and other
species such as blue whales, guadalupe fur seals, and humpback whales,
all indicate that if the ban were restricted to 1,000 yards the
potential for impacts at these offshore distances would not be
decreased.
Other reasons as to why NOAA has proposed a complete ban are
delineation and enforcement. As discussed in response to comment 10,
NOAA's initial proposed ban of 1,000 yards from shore would be
difficult and costly to enforce in terms of personnel and buoy
installation and maintenance.
Comment 16: NOAA has failed to consider alternatives to a total ban
of MPWC in the Sanctuary.
Response: NOAA disagrees. NOAA considered all alternatives
described in the Environmental Assessment, which includes a description
of the alternative, a discussion of its environmental and socioeconomic
impacts, and an analysis of the alternative. The alternatives found in
the Environmental Assessment include: no action; creation of zones for
the operation of MPWC; banning operation of MPWC from the nearshore
area of the Sanctuary; prohibition of operation of MPWC in the entire
Sanctuary; and regulation of all recreational vessel traffic in the
Sanctuary. NOAA believes that it has developed its regulations fairly
and without bias based upon scientific literature, public documents,
and comments from MPWC users, nonusers, local citizens, and the MPWC
industry.
Comment 17: NOAA cannot rationally prohibit operation of MPWC use
throughout GFNMS on the basis of potential conflicts with recreational
users concentrated in ``nearshore waters.''
Response: NOAA is not prohibiting MPWC use solely because of user
conflicts. As explained in response to comments 4, 6, and 18, other
concerns associated with the use of MPWC in the Sanctuary support
NOAA's conclusion that operation of MPWC should be prohibited
throughout the Sanctuary. While MPWC do interfere with nearshore uses
such as swimming, canoeing, and kayaking and cause adverse impacts to
nearshore wildlife and habitats, the impacts that MPWC can have on
wildlife and water quality in offshore areas is also part of the basis
for this action.
Comment 18: NOAA's own data from the National Marine Fisheries
Service indicate that MPWC operation does not pose a risk to marine
mammals.
Response: NOAA disagrees. The data cited from the Southwest Region
of the National Marine Fisheries Service is based only on animals that
have washed ashore in a dead or dying state and do not address negative
impacts aside from mortality. Morbidity is not the only measure of
effects on a marine mammal. It is detrimental to marine mammals, many
of which are endangered or threatened, to alter their behavior (their
feeding activities and subsequently their survivability) in a
significant manner. A comment in support of the prohibition indicated
that in one area Gray whales are seen frequently in proximity of other
vessels and human activity but are never seen when MPWCs are present. A
comment opposed to the prohibition indicated that MPWCs have been
operated in the same area and whales have never been observed. Both
statements support the contention that Gray whales alter their behavior
to avoid MPWCs. Altering animal behavior is contrary to the goals and
objectives of the Sanctuary.
As indicated in the EA, researchers have reported that MPWC may be
disruptive to marine mammals because MPWC change speed and direction
frequently, are unpredictable, and may transit the same area repeatedly
in a short period of time. It is true that MPWC lack low-frequency long
distance sounds underwater. However, this does not mean that marine
mammals are not adversely impacted by the MPWC noise. Whether the noise
is heard at close range or farther away, it still will disturb marine
mammals which may cause shifts in activity patterns, site abandonment,
or avoidance. Since marine mammals are limited to close range detection
of MPWC noise and activity there is a greater chance of collision.
Comment 19: NOAA's reference to Coast Guard statistics regarding
boating accidents nationally has little relevance given the absence of
any reported MPWC accidents in the GFNMS.
Response: NOAA disagrees. MPWC have been involved in numerous
accidents, and thus pose a hazard to other water users. Although MPWC
make up approximately 11 percent of vessels registered in the country
(U.S. Dept. of Interior, 1998c), Coast Guard statistics show that in
1996, 36 percent of all watercraft involved in accidents were MPWC
(U.S. Coast Guard, 1999). While this accident data is not site specific
to the Sanctuary, it does demonstrate that the potential for accidents
does exist and that MPWC have a higher ratio of accidents than other
motorized watercraft.
Comment 20: NOAA is unconvincing in its attempt to suggest that the
recent efforts by Marin County to ban MPWC use within three miles of
shore necessitate a ban by NOAA throughout the Sanctuary. No-wake zones
could be established.
Response: As explained in the response to comment 10, the Marin
County prohibition was recently overturned in a tentative ruling by the
Marin Superior Court. The County is not enforcing the ordinance at this
time. Whether the County's ordinance is implemented or not, NOAA is
required to protect the marine resources in the GFNMS. NOAA believes
that a total ban throughout the Sanctuary is necessary to ensure marine
resource protection.
No-wake zones would only provide protection in limited areas but
would be very expensive because they would require marker buoys.
Sanctuary resources outside of these zones would still be at risk from
the effects of MPWC operation.
Comment 21: NOAA continues to advance factual inaccuracies,
unfounded assertions, illogical conclusions to support the prohibition.
NOAA references studies regarding disturbance of waterfowl and seabirds
as a reason to ban MPWC use throughout the entire Sanctuary even though
these sources recommend creation of a ``buffer zone.'' NOAA's assertion
that MPWC may be perceived as being louder than other boats provides no
potential basis for a ban extending throughout the entire Sanctuary.
Response: NOAA disagrees. NOAA's decision to prohibit MPWC was
carefully considered and is scientifically defensible. Specifically,
NOAA has referenced numerous studies related to MPWC impacts to all
types of wildlife (marine mammals, birds, and pinnepeds) found within
the Sanctuary's boundaries, not just
[[Page 46951]]
waterfowl and seabirds. While studies on waterfowl and seabird
recommend the creation of a buffer to reconcile the impacts of MPWC,
buffer zones will not sufficiently address the other concerns related
to MPWC use throughout the sanctuary such as water pollution, user
conflicts, and other wildlife and human disturbance outside of the
zones.
Comment 22: MPWC use in the Sanctuary is decreasing.
Response: NOAA disagrees. With the closure of other areas within
and around the Sanctuary, such as GGNRA and PRNS, it is unlikely that
use in the Sanctuary will decrease. NOAA is not aware of any data
indicating that MPWC use is decreasing in GFNMS, other than statements
from MPWC users and use trends nationally, which are documented in the
United States Coast Guard report (1999).
Comment 23: NOAA's proposed regulation is arbitrary because it
would prohibit MPWC operation because of their speed.
Response: NOAA disagrees. As stated in earlier responses, MPWCs
have not been proposed to be banned in the Sanctuary because of any
single reason such as speed. Speed is one of many aspects of MPWCs,
including water quality effects, noise disturbance to humans and
wildlife, and user conflicts, that NOAA considered.
III. Summary of Regulations
The regulations for the GFNMS are amended as follows:
The addition to 15 CFR 922.82(a) prohibits operation of MPWC in the
Sanctuary. The prohibition includes an exception for the use of MPWC
for emergency search and rescue and law enforcement (other than
training activities) by Federal, State and local jurisdictions.
The addition to 15 CFR 922.81 provides a definition of ``motorized
personal watercraft.'' ``Motorized personal watercraft'' will be
defined as ``a vessel which uses an inboard motor powering a water jet
pump as its primary source of motive power and which is designed to be
operated by a person sitting, standing, or kneeling on the vessel,
rather than the conventional manner of sitting or standing inside the
vessel''.
IV. Miscellaneous Rulemaking Requirements
Executive Order 12866: Regulatory Impact
This rule has been determined to be not significant for purposes of
Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration when this rule was proposed that if it was adopted as
proposed it would not have a significant economic impact on a
substantial number of small entities. No comments were received on the
economic impact of the proposed rule on small entities and, therefore,
the basis for the certification has not changed.
Accordingly, a Regulatory Flexibility Analysis was not prepared.
Paperwork Reduction Act
This rule would not impose an information collection requirement
subject to review and approval by OMB under the Paperwork Reduction Act
of 1980, 44 U.S.C. 3500 et seq.
National Environmental Policy Act
NOAA has concluded that this regulatory action does not constitute
a major federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required. A draft environmental assessment has been prepared. It is
available for comment from the address listed at the beginning of this
notice.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Penalties, Recreation and
recreation areas, Reporting and recordkeeping requirements, Research.
Alan Neuschatz,
Chief Financial Officer/Chief Administrative Officer, Ocean Services
and Coastal Zone Management.
Accordingly, for the reasons set forth above, 15 CFR Part 922,
Subpart H, is amended as follows:
PART 922, NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for Part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. Section 922.81 is amended by adding the following definition, in
the appropriate alphabetical order.
Sec. 922.81 Definitions.
* * * * *
Motorized personal watercraft means a vessel which uses an inboard
motor powering a water jet pump as its primary source of motive power
and which is designed to be operated by a person sitting, standing, or
kneeling on the vessel, rather than the conventional manner of sitting
or standing inside the vessel.
3. Section 922.82 is amended by adding new paragraph (a)(7) as
follows:
Sec. 922.82 Prohibited or otherwise regulated activities.
(a) * * *
(7) Operation of motorized personal watercraft, except for the
operation of motorized personal watercraft for emergency search and
rescue mission or law enforcement operations (other than routine
training activities) carried out by National Park Service, U.S. Coast
Guard, Fire or Police Departments or other Federal, State or local
jurisdictions.
* * * * *
[FR Doc. 01-22637 Filed 9-7-01; 8:45 am]
BILLING CODE 3510-08-P
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