Endangered and Threatened Wildlife and Plants; Manatee Protection Areas in Florida

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 7, 2002 (Volume 67, Number 4)]
[Rules and Regulations]
[Page 680-696]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja02-13]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH80

Endangered and Threatened Wildlife and Plants; Manatee Protection
Areas in Florida

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), take final action
to establish two additional manatee protection areas in Florida. This
action is authorized under the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) (ESA), and the Marine Mammal
Protection Act of 1972, as amended (16 U.S.C. 1361-1407) (MMPA), to
further recovery of the Florida manatee (Trichechus manatus
latirostris) through a reduction in the level of take. In evaluating
the need for additional manatee protection areas, we considered the
needs of the manatee at an ecosystem level with the goal of ensuring
that adequate protected areas are available throughout peninsular
Florida to satisfy the biological requirements of the species, with a
view toward the manatee's recovery. We are establishing two manatee
refuges in Brevard County, in which certain waterborne activities will
be restricted. These two sites are located within the water bodies
commonly known as the Barge Canal and Sykes Creek. Watercraft operating
within these water bodies will be required to proceed at ``slow speed''
throughout the year.

DATES: These designations will become effective upon the posting of
appropriate signage designating the boundaries of the manatee
protection areas and restrictions on watercraft operating within those
boundaries. Such posting will not occur sooner than February 6, 2002.

ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the U.S. Fish and
Wildlife Service, Jacksonville Field Office, 6620 Southpoint Drive,
South, Suite 310, Jacksonville, Florida 32216.

FOR FURTHER INFORMATION CONTACT: David Hankla, Peter Benjamin, or
Cameron Shaw (see ADDRESSES section), telephone 904/232-2580; or visit
our website at http://northflorida.fws.gov.

SUPPLEMENTARY INFORMATION:

Background

The Florida manatee is Federally listed as an endangered species
under the ESA (16 U.S.C. 1531 et seq.) (32 FR 4001) and is also
federally protected under the MMPA (16 U.S.C. 1361-1407). It resides in
freshwater, brackish, and marine habitats of coastal and inland
waterways in the southeastern United States. The majority of this
population resides in the waters of the State of Florida throughout the
year, and nearly all manatees use the waters of peninsular Florida
during the winter months. The manatee is a cold-intolerant species and
requires warm waters (above 20 degrees Celsius (68 degrees Fahrenheit))
to survive during periods of cold weather. During the winter months
many manatees rely on the warm water from natural springs and
industrial outfalls for warmth. During the summer months they expand
their range and are seen rarely as far north as Rhode Island on the
Atlantic Coast and as far west as Texas on the Gulf Coast.
Recent information indicates that the overall manatee population
has grown since the species was listed (U.S. Fish and Wildlife Service
2001). However, in order for us to determine that an endangered species
has recovered to a point that it warrants removal from the List of
Endangered and Threatened Wildlife and Plants, the species must have
improved in status to the point at which listing is no longer
appropriate under the criteria set out in section 4(a)(1) of the ESA.
That is, threats to the species that caused it to be listed must be
reduced or eliminated such that the species no longer fits the
definitions of threatened or endangered. While indications of
increasing population size are very encouraging, there is no indication
that important threats to the species, including human-related
mortality and harassment, have been effectively reduced or eliminated.
Human activities, particularly waterborne activities, are resulting
in the take of manatees. Take, as defined by the ESA, means to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to
attempt to engage in any such conduct. Harm means an act which actually
kills or injures wildlife (50 CFR 17.3). Such an act may include
significant habitat modification or degradation where it actually kills
or injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering. Harass means an
intentional or negligent act or omission which creates the likelihood
of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns, which include, but
are not limited to, breeding, feeding or sheltering (50 CFR 17.3).
The MMPA sets a general moratorium, with certain exceptions, on the
taking and importation of marine mammals and marine mammal products and
makes it unlawful for any person to take, possess, transport, purchase,
sell, export, or offer to purchase, sell, or export, any marine mammal
or marine mammal product unless authorized. Take, as defined by section
3(13) of the MMPA means to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture, or kill any marine mammal.
Harassment is defined under the MMPA as any act of pursuit,
torment, or annoyance which--(i) has the potential to injure a marine
mammal or marine mammal stock in the wild; or (ii) has the potential to
disturb a marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering.
Human use of the waters of the southeastern United States has
increased dramatically as a function of residential growth and
increased visitation. This phenomenon is particularly evident in the
State of Florida. The population of Florida has grown by 124 percent
since 1970 (6.8 million to 15.2 million, U.S. Census Bureau) and is
expected to exceed 18 million by 2010, and 20 million by the year 2020.
According to a recent report by the Florida Office of Economic and
Demographic Research (2000), it is expected that, by the year 2010,
13.7 million people will reside in the 35 coastal counties of Florida.
In a parallel fashion to residential growth, visitation to Florida has
increased dramatically. It is expected that Florida will have 83
million visitors annually by the year 2020, up from 48.7 million
visitors in 1998. In concert with this increase of

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human population growth and visitation is the increase in the number of
watercraft which ply Florida waters. In 1999, 829,971 vessels were
registered in the State of Florida. This is an increase in registered
vessels of almost 20 percent since 1993 (Florida Fish and Wildlife
Conservation Commission 2000). During this same period, the number of
watercraft-related manatee mortalities has increased by 144 percent,
from 35 to 82 deaths per year. The Florida Department of Community
Affairs estimates that, in addition to boats belonging to Florida
residents, between 300,000 and 400,000 boats registered in other States
use Florida waters each year.
The large increase in human use of waters inhabited by manatees has
had direct and indirect impacts on this endangered species. Direct
impacts include injuries and death from vessel impacts, deaths and
injuries from water control structure operations, lethal and sub-lethal
entanglements with commercial and recreational fishing gear, and
alterations of behavior due to harassment. Indirect impacts include
habitat destruction and alteration, decreases in water quality
throughout some aquatic habitats, decreases in quantity of warm water
at natural sites, marine debris, and general disturbance from human
activities.
Over the past 10 years, more than 62 percent of watercraft-related
manatee mortality has taken place in seven Florida counties (Duval,
Volusia, and Brevard, on the east coast; and Collier, Lee, Charlotte,
and Hillsborough on the west coast) (U.S. Fish and Wildlife Service
2001). Manatee mortality has continued to climb steadily. Average
annual mortality in the 1990s (227.9) was nearly twice that of the
1980s (118.2), and this trend continued in 2000, when 273 dead manatees
were recorded. Total mortalities over the past 4 years have averaged 45
percent higher than in the early 1990s. When the record high total of
1996 is added (the year in which the red tide die-off inflated total
mortality to 416 animals), average annual mortality over the past 5
years has been nearly 60 percent greater than in the early 1990s
(Marine Mammal Commission 2001).
The continuing increase in the number of recovered dead manatees
throughout Florida has been interpreted as evidence of increasing
mortality rates (Ackerman et al. 1995). Between 1976 and 1999, the
number of carcasses collected in Florida increased at a rate of 5.8
percent per year, and deaths caused by watercraft strikes increased by
7.2 percent per year (U.S. Fish and Wildlife Service 2001). Because the
manatee has a low reproductive rate, a decrease in adult survivorship
due to watercraft collisions could contribute to a long-term population
decline (O'Shea et al. 1985). It is believed that a 1 percent change in
adult survival likely results in a corresponding change in the rate of
population growth or decline (Marmontel et al. 1997).
Collisions with watercraft are the largest source of human-related
manatee deaths. Data collected during manatee carcass salvage
operations in Florida indicate that a total of 979 manatees (from a
total carcass count of 4,021) are confirmed victims of collisions with
watercraft since 1976. This number may not accurately represent the
actual number of watercraft-related mortalities since many of the
mortalities listed as ``undetermined causes'' show evidence of
collisions with vessels. Collisions with watercraft comprise
approximately 24 percent of all manatee mortalities since 1976. The
last 5 years have been record years for the number of watercraft-
related mortalities, and watercraft-related deaths have become a larger
proportion of total mortality. Since 1998, watercraft-related deaths
have represented about 30 percent of all mortality, a 5 percent
increase compared to the early 1990s. During the 1980s and 1990s the
manatee population apparently grew; however, if population growth rate
levels off and manatee mortality continues to increase, a decline in
abundance is inevitable (Marine Mammal Commission 2001).
The second largest cause of human-related manatee mortality is
entrapment in water control structures and navigation locks (U.S. Fish
and Wildlife Service 2001). Manatees may be crushed in gates and locks
or may be trapped in openings where flows prevent them from surfacing
to breathe. Locks and gates were responsible for 159 manatee deaths
between 1976 and 1999 (U.S. Fish and Wildlife Service 2000). While
there are no well-defined patterns characterizing these mortalities, it
is believed that periods of low rainfall increase the likelihood of
manatees being killed in these structures. These periods require more
frequent, large-scale movements of water, which require more frequent
gate openings and closings in areas that attract manatees searching for
fresh water.
Manatees are also affected by other human-related activities.
Impacts resulting from these activities include death caused by
entrapment in pipes and culverts; entanglement in ropes, lines, and
nets; ingestion of fishing gear or debris; vandalism; and poaching.
These activities have accounted for 106 manatee deaths since 1976, an
average of 4 deaths per year. As with watercraft-related mortalities,
other human-related deaths also appear to be increasing, with 31
deaths, approximately 3 percent of the total mortalities, recorded
between 1997 and 2000 attributed to these sources. This is an average
of 7.75 deaths per year over the last 4 years attributable to other
human-related activities.
Harassment of manatees is a concern, particularly when it impedes
the use of warm water areas critical to manatee survival during periods
of cold weather. In particular, an increasing number of swimmers and
divers are visiting Florida's waters to view and swim with the
manatees. The presence of large numbers of people and the resultant
disturbance has been documented to cause manatees to leave warm water
areas (Jay Gorzaleny, Mote Marine Laboratory, personal communication
2001). On occasion, divers and swimmers have been observed attempting
to pet, chase, ride, and even sit on manatees. This type of harassment
may cause the manatee to leave warmer water to find relief from the
harassment in colder areas where there are fewer people. Such
responses, if they are instigated by human harassment, are considered
take under the ESA and MMPA.
In response to these problems and the watercraft-related impacts in
particular, conservation agencies, such as the Service and the Florida
Fish and Wildlife Conservation Commission (FWC), have increased their
emphasis on enforcement and compliance with manatee speed zones by
adding new officers, conducting enforcement task force initiatives,
increasing overtime, and increasing the proportion of law enforcement
time devoted to manatee conservation. We are also continuing to
evaluate development proposals that would increase watercraft traffic
in manatee habitats where speed zones, signage, and enforcement are
insufficient. To further address the negative effects of human actions
on manatees, we are establishing two additional manatee refuges in
Florida.
The authority to establish protection areas for the Florida manatee
is provided by the ESA and the MMPA, and is codified in 50 CFR part 17,
subpart J. We may, by regulation, establish manatee protection areas
whenever there is substantial evidence showing such establishment is
necessary to prevent the taking of one or more manatees.
We may establish two types of manatee protection areas--manatee
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR

[[Page 682]]

17.102, is an area in which we have determined that certain waterborne
activities would result in the taking of one or more manatees, or that
certain waterborne activities must be restricted to prevent the taking
of one or more manatees, including but not limited to a taking by
harassment. A manatee sanctuary is an area in which we have determined
that any waterborne activity would result in the taking of one or more
manatees, including but not limited to a taking by harassment. A
waterborne activity is defined as including, but not limited to,
swimming, diving (including skin and SCUBA diving), snorkeling, water
skiing, surfing, fishing, the use of water vehicles, and dredging and
filling activities.
Throughout the development of this rule, many commenters cited the
increase in the overall size of the manatee population as evidence that
the establishment of additional manatee protection areas is not needed.
Recent data regarding the size of the manatee population are very
encouraging, and indicate that local, State, and Federal efforts to
recover the manatee are working. However, we remain concerned that
waterborne activities are resulting in take of manatees, which is not
allowed under the ESA and MMPA, and which may slow or even impede
further recovery. Our obligation under the ESA and MMPA is to further
manatee recovery, so that we may someday achieve our goal of removing
the species from the List of Endangered and Threatened Wildlife and
Plants. This includes using available tools, as practicable, to reduce
the level of human-related manatee mortality. The establishment of
manatee protection areas is one such tool. We are pursuing other
complementary tools simultaneously, as described in the next two
sections.

Synopsis of Manatee Lawsuit Settlement

In Save the Manatee Club, et al. v. Ballard, et al, Civil No. 00-
00076 EGS (D.D.C.), several organizations and individuals filed suit
against the Fish and Wildlife Service and the U.S. Army Corps of
Engineers (Corps) alleging violations of the Endangered Species Act
(ESA), Marine Mammal Protection Act (MMPA), National Environmental
Policy Act (NEPA), and Administrative Procedure Act (APA). Four groups
representing development and boating interests intervened. Following
extensive negotiations, a Settlement Agreement was approved by the
court on January 5, 2001. Under the terms of the settlement, we agreed
to the following:
Submit a proposed rule for new refuges and sanctuaries to
the Federal Register by April 2, 2001, and submit a final rule by
September 28, 2001. Subsequent to the Federal settlement, the FWC also
voted to settle Save the Manatee v. Egbert, Case No. 90-00-400CIV17-WS
(N.D.Fla) (the State case). That settlement, which was entered by the
court on November 7, 2001, calls for very similar protective measures
in many of the locations included in our proposed rule. As a result of
these simultaneous processes, the parties in the Federal lawsuit agreed
to extend the April 2 deadline in an attempt to negotiate a means to
avoid duplication of effort and better serve the public. Subsequent
negotiations resulted in additional extensions, which resulted in the
proposed rule being submitted to the Federal Register on August 3,
2001. We also agreed to evaluate the propriety of invocation of our
emergency sanctuary/refuge designation authority. We published an
advance notice of proposed rule-making in the Federal Register on
September 1, 2000, and held a series of six public workshops in
December 2000. We received 1,752 comments in response to the advance
notice, and 396 people attended the public workshops. The proposed rule
was published in the Federal Register on August 10, 2001 (66 FR 42318).
A 60-day comment period followed this publication. In addition, we held
four public hearings in September 2001, to provide the public an
opportunity to comment. We held these hearings in Crystal River,
Clearwater, Venice, and Melbourne, Florida. As a result of both the
public hearings and written submissions, we received approximately
3,500 comments. These comments are summarized and responded to in the
``Summary of Comments and Recommendations'' section of this rule.
Revise the Manatee Recovery Plan. We were required, by
December 1, 2000, to make a draft revised Recovery Plan available for
public review and comment, and to circulate our final revised Recovery
Plan for signature no later than February 28, 2001. We published a
draft revised Recovery Plan on November 30, 2000, and received over 500
comments. The Plaintiffs and Interveners agreed to new dates for
development of a second draft and finalization of the Recovery Plan. As
a result of the comments, we made substantial revisions to the Recovery
Plan and subsequently issued a second draft for public review and
comment on July 10, 2001. The Recovery Plan was finalized on October
30, 2001.
Pursue a rulemaking proceeding to adopt incidental take
regulations under the MMPA. By March 6, 2001, we were required to
submit to the Federal Register an advance notice of proposed
rulemaking; invite by letter the Corps and other entities that conduct
activities which may influence factors relating to effects of
watercraft on manatees to participate in the MMPA rulemaking process;
and promptly provide copies of the Federal Register notice and
invitation letters to the Plaintiffs and Interveners. The advance
notice was published in the Federal Register on March 12, 2001, and
copies of the advance notice and invitation letters were mailed to the
Plaintiffs and Interveners on March 6, 2001. We will determine if any
anticipated take by entities participating in the rulemaking process
meets the requirements set forth in section 101(a)(5) of the MMPA, 16
U.S.C. 1371(a)(5). The process should result in--(1) if the
requirements set forth in section 101(a)(5) of the MMPA are deemed
satisfied, a proposed and final MMPA incidental take regulation; (2)
preparation of appropriate NEPA documentation which will identify and
assess the direct, indirect, and cumulative effects of the overall MMPA
regulation (either an Environmental Assessment (EA) or an Environmental
Impact Statement (EIS)); (3) detailed assessments of agency programs,
including cumulative effects on manatees and their habitat, for any
activities covered under the regulation; and (4) consultation pursuant
to section 7 of the ESA. We have determined that we will prepare an EIS
in association with this action. Draft and final products are due on
November 5, 2002, and May 5, 2003, respectively. If the requirements of
the MMPA cannot be met, we must notify the Plaintiffs and Interveners
as soon as practicable, and publish a negative finding in the Federal
Register with the basis for denying the request. We must publish our
negative finding by May 5, 2003. We will conduct public hearings on
draft proposals as appropriate.
By March 6, 2001, furnish Plaintiffs and Interveners with
a letter describing how we will spend increased enforcement resources
in FY 2001. This letter was sent on March 6, 2001.
Revise, and make available for public review, our
``interim guidance'' for addressing potential manatee impacts
associated with development and permitting of new watercraft access
facilities. We were required to submit this document by March 6, 2001.
The revised document appeared in the Federal Register on March 14, 2001
(66 FR 14924-32). We agreed to provide at

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least thirty (30) days of public comment and actually provided sixty
(60) days comment on the revised draft guidance. The final decision on
the guidance was released to the public on August 13, 2001, and
published in the Federal Register on August 21, 2001 (66 FR 43885).
Provide written progress reports on the status of tasks
agreed upon in the settlement agreement every 6 months. The first
report was due and was provided to the parties on July 5, 2001.
Provide copies of concurrence and non-concurrence letters
to Plaintiffs and Interveners. Whenever we send a letter to the Corps
in response to the Corps' determination that a project ``may affect''
the manatee or ``may affect but is not likely to adversely affect'' the
manatee, we are required to concurrently make a copy of the
correspondence available to the Plaintiffs and Interveners. This
obligation may be satisfied by establishing a web-based system or by
transmitting a copy of the letter by U.S. mail or electronically. Until
such time as we establish a web-based system, we will forward copies by
U.S. mail. These letters have been provided accordingly.
Provide copies of Biological Opinions (BO). Whenever we
issue a final BO regarding the effect of a particular project on
manatees or manatee critical habitat, we are required to concurrently
make a copy of that opinion available to the Plaintiffs and
Interveners. This obligation may be satisfied by establishing a web-
based system or by transmitting a copy of the opinion by U.S. mail or
electronically. Until such time as we establish a web-based system, we
will forward copies by U.S. mail. These biological opinions have been
provided accordingly.

Coordination With State Actions

A network of manatee speed zones and sanctuaries has been
established throughout peninsular Florida by Federal, State, and local
governments. This existing structure works toward our goal of providing
adequate protected areas throughout peninsular Florida to satisfy the
biological requirements of the species. The purpose of our current
evaluation is to identify gaps in the existing network and to propose
appropriate measures for filling those gaps. We have focused the
current action on those sites in which we have determined that Federal
action can effectively address the needs in the particular area.
We recognize that the existing system of speed zones and
sanctuaries has been established primarily by State and local
governments. We also recognize the important role of our State and
local partners, and we continue to support and encourage State and
local measures to improve manatee protection.
The sites contained in the proposed rule were selected based on the
criteria described below, prior to the disclosure of terms of the
proposed settlement in the State case. That settlement contains a list
of sites that the FWC will be evaluating for potential State
designation of speed zones and sanctuaries. There is considerable
overlap in terms of sites identified in that settlement and the sites
discussed in our proposed rule. The fact that the State's list of sites
is more expansive than the list in our proposed rule does not indicate
a determination on our part that sites on the State's list, and not
proposed by us, do not warrant designation, but is rather a reflection
of our focusing on sites for which we believe we can provide the most
effective protection for manatees, given our staffing and funding
limitations.
We have been coordinating closely with the FWC, since the terms of
their proposed settlement were disclosed, to determine which sites are
most appropriate for State designation and which are better suited for
Federal designation. At the time our proposed rule was prepared, final
agreement had not been reached on the terms of the proposed State
settlement. Pursuant to the terms of our settlement agreement described
previously we were required to submit our proposed rule to the Federal
Register by April 2, 2001, which was prior to the time in which the FWC
made a final decision regarding sites they intend to evaluate. As
stated previously, the deadline was extended on several occasions by
agreement of the parties in an attempt to negotiate a means to avoid
duplication of effort and better serve the public. Alternatives to the
proposed rule were rejected by the Plaintiffs, as were requests for
further extensions; therefore, considerable overlap is possible between
our proposal and potential State action.
We strongly believe that the State should have leadership in
establishing additional manatee protection areas. However, we also must
meet our settlement obligations. Therefore, we will continue to
participate in the State's evaluation. If the State adopts identical or
comparable manatee protection measures to the ones we adopt, we will
assess whether withdrawing Federal designations is appropriate. We will
also continue to evaluate the other 14 proposed sites not currently
included in this final rule, and will consider foregoing Federal
designations if appropriate measures are adopted by the State or local
governments. Additionally, we will continue to monitor other sites that
may warrant additional protection. If we identify additional areas in
need of protection, we will work with the State to establish necessary
protection or may propose actions in the future, as appropriate.
Given that reducing watercraft-related manatee mortality is
important to the recovery of the species, and given continuing
watercraft-related mortality in Brevard County, we have decided to
proceed with final designation of the Barge Canal and Sykes Creek
sites. The remaining 14 sites in the proposed rule are somewhat less
urgently in need of regulation than the Barge Canal and Sykes Creek
sites. Therefore, we are deferring final rulemaking on these sites
until December 1, 2002. At that time, if we determine that designation
is warranted for the remaining 14 sites, and if the State has been
unable to complete rulemaking on those sites, we intend to proceed with
final rulemaking on those sites.

Site Selection Process and Criteria

In preparation for this action, we met with representatives from
local, State, and Federal agencies and organizations involved in
manatee research, management, and law enforcement. These meetings
helped us to develop a list of sites throughout Florida and southeast
Georgia that manatee experts believed should be considered for possible
designation as manatee protection areas.
As mentioned above, we published an advance notice of proposed
rulemaking in the Federal Register on September 1, 2000 (65 FR 53222).
The purpose of the advance notice was to inform the public that we were
initiating the process of investigating areas for possible designation
as manatee protection areas, and to solicit initial public input. We
received 1,752 responses to the advance notice. Of these, 1,737
supported our efforts to establish additional manatee protection areas,
and 13 opposed them. The remaining two comments did not state a
specific opinion.
We also conducted six public workshops throughout peninsular
Florida to present the list of potential sites and to solicit public
input. A total of 396 people attended the workshops, and 166 provided
either oral or written comments. Of these, 79 were general in nature,
either supporting our efforts to establish additional manatee
protection areas (40) or opposing them (39). An additional 36 comments
were not specific to the topic or discussed other

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items. Fifteen commenters provided specific information or comments,
including recommendations to increase enforcement, increase education,
use new technology including satellite tracking of manatees, and other
rule-related topics. Of the remaining comments, 28 specifically opposed
and 8 specifically supported the establishment of additional manatee
protection areas.
We selected sites for inclusion in the proposed rule from the list
of sites developed through the preliminary meetings and the information
gathered at the public workshops and in response to the advance notice.
We based site selection on four factors: (1) Evidence that the site is
used by manatees; (2) historic evidence of take (harm or harassment) of
manatees at the site due to waterborne human activities; (3) the
potential for additional take based on manatee and human use of the
site; and (4) a determination that we could implement effective
measures at the site to address the identified problem.
In documenting manatee use and historic manatee harm and
harassment, we relied on the best available data including aerial
survey data, manatee mortality data, and information from the Florida
Marine Research Institute, Pathobiology Laboratory, and other
information from State and Federal sources. These data were
supplemented with information from manatee experts and the public, and
our best professional judgment. In determining the potential
effectiveness of our proposed actions, we considered the costs of
managing and enforcing sites versus the benefits to manatee
conservation. Costs associated with site management include
installation and maintenance of appropriate signage, public education,
and enforcement. In addition, designation of sanctuaries in the waters
bordered by private property would entail additional administrative
burdens in terms of identifying and providing access to affected
residents. We considered these administrative burdens in selecting
sites. Finally, we evaluated the effectiveness of our actions against
the likely effectiveness of actions by State and/or local governments.
As stated previously, it was our goal to avoid sites that could be most
effectively addressed by State or local government. However, the
parallel suits against the State and Federal governments limited early
coordination in the development of this proposal and the proposed State
settlement. Therefore, duplication of effort may occur in the future.
To resolve this, as appropriate we will consider withdrawing any
actions where comparable State or local protection is established. We
did, however, make every effort to make our designations consistent
with the existing adjacent State or local designations.

Definitions

``Idle speed'' means the minimum speed needed to maintain
watercraft steerage.
``Planing'' means riding on or near the water's surface as a result
of the hydrodynamic forces on a watercraft's hull, sponsons
(projections from the side of a ship), foils, or other surfaces. A
watercraft is considered on plane when it is being operated at or above
the speed necessary to keep the vessel planing.
``Slow speed'' means the speed at which a watercraft proceeds when
it is fully off plane and completely settled in the water. Watercraft
must not be operated at a speed that creates an excessive wake. Due to
the different speeds at which watercraft of different sizes and
configurations may travel while in compliance with this definition, no
specific speed is assigned to slow speed. A watercraft is not
proceeding at slow speed if it is--(1) on a plane, (2) in the process
of coming up on or coming off of plane, or (3) creating an excessive
wake. A watercraft is proceeding at slow speed if it is fully off plane
and completely settled in the water, and not creating an excessive
wake.
``Slow speed (channel exempt)'' designates a larger area where slow
speed is required, through which a maintained, marked channel is exempt
from the slow speed requirement.
``Slow speed (channel included)'' means that the slow-speed
designation applies to the entire marked area, including within the
designated channel.
``Wake'' means all changes in the vertical height of the water's
surface caused by the passage of a watercraft, including a vessel's bow
wave, stern wave, and propeller wash, or a combination of these.
We have amended the definition of ``water vehicle'' to include the
terms watercraft and vessel. These terms are used interchangeably in
the rule and in 50 CFR subpart J.
We have also added personal watercraft to this definition.

Areas Designated as Manatee Refuges

Barge Canal

We are establishing a manatee refuge, containing approximately
276.3 hectares (ha) (682.7 acres), for the purpose of regulating
watercraft operation to slow speed (channel included) for the entire
length of the Barge Canal and extending eastward to the Canaveral
Locks, Brevard County. These regulations will be in effect all year.
The Barge Canal serves as a travel corridor between the Indian and
Banana Rivers for manatees and mariners alike. Aerial survey data
indicate significant use of the site by manatees. Currently there are
four areas within the Barge Canal that are regulated by the State as
40-kilometers-per-hour (25-miles per hour) zones with a 7.6-meters (25-
feet) slow-speed shoreline buffer, all year, while the remainder of the
Barge Canal is a slow-speed all-year zone. High-speed vessel operation
in a confined migration corridor has an enhanced likelihood of
resulting in take of manatees. There have been 16 watercraft-related
manatee mortalities in the Barge Canal and its vicinity (Florida Marine
Research Institute 2000). Requiring vessels to operate at slow speed
would minimize the potential for take of manatees.
The State recently approved new regulations for Brevard County that
would also designate the Barge Canal as a slow-speed zone; thereby
providing a comparable level of manatee protection as our designation.
A number of organizations and individuals have appealed the State's
rulemaking and it is uncertain at this time when, or whether, the
State's designation may take effect. Due to the urgent need to reduce
watercraft-related mortality in the Barge Canal, we are proceeding with
this designation at this time so that appropriate protective measures
will be in place should the State be unable to implement its rule.

Sykes Creek

We are establishing a manatee refuge, containing 342.3 ha (845.8
acres) more or less, in Sykes Creek in Brevard County for the purpose
of regulating watercraft operation to slow-speed (channel included) all
year.
Aerial survey data indicate a significant amount of manatee use of
Sykes Creek. Manatees consistently use this site for feeding, resting,
and breeding. Like the Barge Canal, it is a fairly narrow water body
and has been the site of 13 watercraft-related manatee mortalities
(Florida Marine Research Institute 2000). High-speed vessel operation
in this area has a high likelihood of resulting in take of manatees.
Regulating vessels to proceed at slow speed minimizes the likelihood of
a take incident.
The State recently approved new regulations for Brevard County that
would also designate Sykes Creek as a

[[Page 685]]

slow speed zone; thereby providing a comparable level of manatee
protection as our designation. A number of organizations and
individuals have appealed the State's rulemaking and it is uncertain at
this time when, or whether, the State's designation may take effect.
Due to the urgent need to reduce watercraft-related mortality in Sykes
Creek we are proceeding with this designation at this time so that
appropriate protective measures will be in place should the State be
unable to implement its rule.

Summary of Comments and Recommendations

In the August 10, 2001, proposed rule (66 FR 42318), we requested
all interested parties to submit factual reports or information that
might contribute to the development of a final rule. We sent direct
notification of the proposal and public hearings to 3,258 institutions
and individuals, including Federal and State agencies, county
governments, scientific organizations, and interested parties. We
published legal notices announcing the proposal, inviting public
comment, and announcing the schedule for public hearings, on August 30,
2001, in the Fort Myers News-Press, Citrus County Chronicle, Daytona
Beach News-Journal, and Naples Daily News, on August 31, 2001, in the
St. Petersburg Times, Miami Herald, Orlando Sentinel, Charlotte Sun-
Herald, and Tallahassee Democrat, and on September 4, 2001, in Florida
Today. The comment period closed on October 9, 2001. We held the public
hearings at the Plantation Inn and Conference Center in Crystal River,
Florida, on September 10, 2001; Harborview Convention Center in
Clearwater, Florida, on September 11, 2001; Holiday Inn in Venice,
Florida, on September 12, 2001; and the Radisson Hotel & Conference
Center in Melbourne, Florida, on September 13, 2001. Approximately 315
people were in attendance at the public hearings. We received oral
comments from 121 individuals.
During the comment period, we received approximately 3,500 written
and oral comments concerning the proposal. Most expressed opposition
to, or concern about, the proposed designation; however, a number of
individuals supported the proposed action. Opposition to the proposed
designation primarily centered on perceived economic effects and
potential inconvenience to boaters resulting from the action, and the
adequacy of current State conservation actions to protect the manatee.
We received comments from one State agency and the Governor of Florida.
The remaining comments were from individuals or representatives of
organizations or groups. The Governor of Florida stated support for the
proposed action. The following is a summary of the comments received.
Comments of a similar nature have been grouped together. Comments
related to specific sites in the proposed rule, other than the two
discussed in this final rule, will be addressed when final
determinations for those sites are published.
Comment 1: The FWC noted our intention to consider withdrawing
Federal designations should State or local governments enact comparable
protective measures, and recommended that we define the means by which
we will determine if actions by State or local governments provide a
comparable level of protection.
Response: With regard to the Barge Canal and Sykes Creek, we
believe that the pending State rule for Brevard County provides, on
balance, a greater level of manatee protection than our rule. While we
continue to have reservations regarding certain exemptions that have
been granted by the State (see response to Comment 21 below), it is
clear that the FWC's Brevard County rule, taken as a whole, provides
needed protection to a far greater area than our rule. The FWC rule
addresses the four areas identified in our proposed rule (Barge Canal,
Sykes Creek, Haulover Canal, and Cocoa Beach Municipal Park) with
similar or identical measures. Additionally, the FWC rule provides
additional protection for manatees throughout the Indian River and
Banana River within Brevard County by adding additional shoreline
buffers and by eliminating several high-speed access channels. As such,
should the State prevail in the challenge to their rulemaking, we
believe that the Federal designation of the Barge Canal and Sykes Creek
would likely be unnecessary. We view this as a prime example of how the
greater resources of the FWC can enable them to accomplish more through
State action than can be accomplished through Federal action.
With respect to the other 14 sites identified in our proposed rule,
we cannot, at this time, identify specific standards for what would
constitute comparable levels of protection. We recognize that there may
be alternative means of implementing effective protective measures at
many of these sites. These alternatives may be beyond our authority or
resources to implement through our rulemaking, but may be available to
State or local governments. Rather than limiting the options of State
and local governments by insisting that they enact regulations
identical to those we have proposed, we intend to participate fully in
the State and local rulemaking processes and to articulate our views
and recommendations regarding proposed protective measures as early as
possible in those processes, particularly with respect to whether we
consider potential protection measures to provide a comparable level of
protection.
Comment 2: The FWC noted that appropriate posting of designated
manatee protection areas is a critical element in the success of
manatee protection zones, and recommended that we incorporate meetings
with the FWC, appropriate Inland Navigation Districts, and local
governments, to develop a clear delineation of responsibilities for
posting signs for federally designated areas.
Response: We agree that appropriate signage is a critical element
to the effective implementation of manatee protection areas. We will
fully involve the FWC, appropriate Inland Navigation District and local
governments, as well as the U.S. Coast Guard, in the development of
sign plans for all Federal manatee protection areas.
Comment 3: The FWC expressed concern regarding enforcement of the
new manatee protection areas and recommended that we clarify that we
are responsible for enforcement of these areas. They also expressed
concern that establishment of Federal manatee protection areas in and
adjacent to State speed zones, which carry different penalties for
violation, may generate confusion among the boating public.
Response: Manatee protection areas are only effective to the extent
that boaters comply with posted regulations. As such, enforcement is an
essential component of our effort to establish additional manatee
protection areas. FWC officers are authorized to enforce Federal
manatee protection area regulations, just as our law enforcement
officers can and do enforce State manatee protection regulations. We
welcome any assistance that the FWC can provide in the enforcement of
these manatee protection areas, but we have made a commitment to ensure
that adequate enforcement is provided for these areas. As noted above,
the ability to adequately post and enforce designated sites was an
important factor in our site selection process.
Comment 4: The FWC noted that we have deferred action on the
remaining 14 sites identified in the proposed rule until December 2002
to give State and local governments the opportunity to enact comparable
protective measures.

[[Page 686]]

The FWC stated that they have no plans to consider rules in two of the
sites in the proposed rule (Little Sarasota Bay and Shell Island) and
that no final State action would be taken on sites in Tampa Bay by
December 2002.
Response: We note that, while State action on the sites in Tampa
Bay is not anticipated to occur prior to December 2002, local action is
likely within this timeframe. Pinellas County has recently adopted an
ordinance to provide increased manatee protection at the Bartow Power
Plant, and we are currently evaluating the effectiveness of this
action. Additionally, Hillsborough County is currently considering
measures to improve manatee protection in much of Tampa Bay, including
the Gannon and Tampa Electric Company power plant sites identified in
our proposed rule. We will monitor the progress of these initiatives
over the coming months to determine whether the proposed Federal
designations are warranted.
Information regarding the Shell Island and Little Sarasota Bay
sites was presented during the public comment period. We are continuing
to evaluate the information and have made no decisions regarding final
designation of these sites.
Comment 5: The FWC concurred with our determination that the data
strongly support the decision to designate the Barge Canal and Sykes
Creek as manatee protection areas. The FWC indicated they support our
proposed designations for these areas, but recommended that the Federal
rules be repealed if the FWC is successful in defending their recently
adopted rules.
Response: We agree that, should the State prevail in the challenge
to their Brevard County rule, the Federal designations would likely be
unnecessary.
Comment 6: Several commenters recommended establishing manatee
protection areas at several sites in addition to, or in lieu of, the 16
sites identified in the proposed rule. Other sites recommended for
considerations included--the downtown Jacksonville portion of the St.
John's River, Duval County; Goodby's Creek, Duval County; the Tomoka
River, Volusia County; the Canaveral sewer outfall, Brevard County; the
Indian River southeast of the railroad bridge causeway, Brevard County;
the Haulover Canal observation area, Brevard County; the Riviera Beach
power plant outfall, Palm Beach County; the Weeki Wachee River,
Hernando County; the Little Manatee River, Hillsborough County; the
Manatee and Braden Rivers, Manatee County; Charlotte Harbor, Charlotte
County; Bokeelia Point, Lee County; San Carlos Bay, Lee County; the
Caloosahatchee River, Lee County; Mullock Creek/Ten Mile Canal, Lee
County; Estero Bay, Lee County; Everglades National Park, Collier and
Monroe Counties; Faka Union Canal/Port of the Islands, Collier County;
and Ten Thousand Islands/Chokoloskee Bay, Collier County.
Response: In designating manatee protection areas, we considered
the needs of the species on an ecosystem level in an attempt to address
life requirements of the manatee and to progress toward recovery of the
species. Tempering this evaluation was the limited resources available
to us, in terms of both staffing and funding, for accomplishing the
establishment, maintenance, and regulation and enforcement of
designated areas.
All of the above-mentioned sites, and many others, were considered
at some point in the evaluation process. Some (such as the Weeki Wachee
River, Goodby's Creek, and the Canaveral sewer outfall) did not meet
our criteria for further consideration because adequate protective
measures are currently in place at these sites and the likelihood of
future take at these sites is limited, provided the existing
regulations are appropriately enforced. Others (such as Caloosahatchee
River, Everglades National Park, and Ten Thousand Islands/Chokoloskee
Bay) did not meet our criteria for designation at this time because it
is as yet unclear, based on current information, what additional
protective measures could be implemented to effectively reduce on-going
watercraft-related manatee mortality in these areas; however, we agree
that these areas warrant further study. We note that even the commenter
who recommended we take immediate action in the Ten Thousand Islands/
Chokoloskee Bay area could offer no specific recommendation as to what
to do in this area. We agree that the remaining sites mentioned above
(the St. John's River in downtown Jacksonville, the Tomoka River, the
Haulover Canal observation area, the Indian River southeast of the
railroad bridge causeway, the Riviera Beach power plant outfall, the
Little Manatee River, the Manatee and Braden Rivers, Charlotte Harbor,
Bokeelia Point, Estero Bay, San Carlos Bay, Mullock Creek/Ten Mile
Canal, and Faka Union Canal/Port of the Islands) do, or may, warrant
further consideration, particularly if State or local efforts to
improve manatee protection at these sites are unsuccessful, and if
manatees do not make satisfactory progress toward recovery. However, we
do not agree with the commenters that action at any of these sites is
any more urgent than the actions identified in our proposed rule. As
previously stated, we believe the sites included in this final rule are
areas where federal action could be most effective for manatee
conservation and is most urgently needed.
We are committed to continuing the protection of the manatee
through a cooperative effort with our management partners at the
Federal, State, and local levels, as well as efforts involving private
entities and members of the public. We encourage State and local
measures to improve manatee protection. Additionally, we have indicated
that future actions could establish additional manatee protection areas
if the need becomes apparent.
Comment 7: In recommending action at the sites identified in
Comment 6, some commenters noted that several of the sites identified
in our proposed rule were under consideration for designation by the
FWC and/or local governments, and questioned our decision to include
such sites in our proposed rule, given the likelihood that these sites
would be appropriately regulated without Federal designation.
Response: Many of the sites in our proposed rule and the two sites
in this final rule are currently under consideration for State action.
We first became aware of this overlap when the Plaintiffs in the State
lawsuit made the terms of the draft settlement agreement public. Due to
our inability to discuss pending legal actions with the FWC, only the
Plaintiffs were in a position to recognize the overlap and conflicts
between the two settlement agreements. The Plaintiffs did not raise
these conflicts to our attention. In fact we requested and received
several extensions of the deadline for publishing the proposed rule,
and during these extensions several options for resolving the situation
were presented to the Plaintiffs. All were rejected along with our
request for further extensions. As such, in order to meet our
settlement obligations, we published the proposed rule. We are
publishing this final rule at this time because we have determined that
the actions are urgently needed at these sites and because these
actions will fulfill our settlement obligations. We have deferred
action on the remaining 14 sites because they are somewhat less
urgently in need of action, and in order to allow for additional
coordination with State and local governments.
Comment 8: One commenter stated that we excluded areas from the
proposed rule that are, in their view, of extremely high priority,
while including in our proposed rule a number of sites

[[Page 687]]

that are, in their view, of much lower concern and/or are being
addressed in other ways.
Response: We have concluded that the sites recommended by this
commenter either do not warrant additional protection, or are of no
higher priority than the sites identified in our proposed rule. We note
that this commenter agreed that the Barge Canal and Sykes Creek are in
need of improved manatee protection.
Comment 9: Many commenters recommended that we take action on sites
identified in the proposed rule sooner than we have proposed. Many
recommended that we make emergency designations on the Barge Canal,
Sykes Creek, and the Blue Waters on the Homosassa River, and make final
designations on other sites sooner than December 2002.
Response: We are firmly committed to establishing appropriate
manatee protection in concert with State and local agencies and
authorities. We believe that the State should have a lead role in
establishing additional manatee protection areas. As such, we are
providing latitude to the State and local governments to establish
protection at 14 of the proposed manatee protection areas prior to
finalizing Federal action. Such protection must be the same or
comparable to that described in our proposed rule. We decided to
expeditiously enact protection at the Barge Canal and Sykes Creek sites
after evaluation of the significant amount of manatee use at these
sites and the high probability of take, especially lethal take, at
these sites, and after we determined that we could implement effective
measures to reduce take at these sites. We determined that enacting
emergency designations at any of the sites identified in our proposed
rule was not prudent given the high level of public use of these waters
and the high level of public interest/concern regarding this
rulemaking. While we have determined that effective actions to reduce
take over the long term can be implemented at the remaining 14 sites
identified in the proposed rule, immediate action at these sites is not
necessary to prevent take, nor is it necessary for the recovery of the
species.
Comment 10: One commenter implied that we were violating the terms
of the settlement agreement in the Federal case by failing to propose
actions at sites identified by the Plaintiffs in the Federal case to be
of high priority.
Response: The plain language of the settlement states (paragraph
11): ``The parties recognize that, in evaluating the need for refuges
and sanctuaries the Service anticipates considering the needs of the
manatee at an ecosystem level in order to ensure that adequate
protected areas are available throughout peninsular Florida to satisfy
the biological requirements of the species, with a view towards the
manatees' recovery within the meaning of section 4 of the ESA.'' The
settlement agreement does not require designation of any specific sites
as manatee protection areas, and nowhere in the settlement is there a
requirement that all protected areas established to meet the needs of
the manatee be Federal. Clearly, in ``evaluating the need'' we must
consider the existing condition of the ecosystem of which the manatee
is a part, which includes an extensive network of protected areas
designed specifically to meet the ``needs of the manatee.'' As long as
appropriate protective measures are enacted, whether those actions are
taken by State or Federal agencies does not matter.
The recovery plan for the Florida manatee makes clear that
achieving the goal of recovery will necessarily require the cooperation
and efforts of all stakeholders. Our proposed rule for manatee
protection areas was also clear on this point when it stated:

We acknowledge that there exists a network of manatee speed
zones and sanctuaries, which have been established throughout
peninsular Florida by Federal, State, and local governments. This
existing structure works toward the above-stated goal of providing
adequate protected areas throughout peninsular Florida to satisfy
the biological requirements of the species. The purpose of our
evaluation is to identify gaps in the existing network and to
propose appropriate measures for filling those gaps.

As such, we have clearly met the letter and spirit of the
settlement with respect to designation of manatee protection areas. As
stated previously, we have concluded that many of the sites recommended
by this commenter do not warrant Federal designation at this time, and
we do not agree that the other sites recommended by the commenter are
of any higher priority than the sites identified in the proposed rule.
Comment 11: One commenter noted that the sites identified in our
proposed rule differ in some respects from the ``areas with inadequate
protection'' identified in our Final Interim Strategy on Section 7
Consultations for Watercraft Access Projects that may Indirectly Affect
the Florida Manatee (Final Interim Strategy) (66 FR 14924).
Response: The areas we have proposed for designation as Federal
manatee protection areas are in some cases different from the
waterbodies we identified as ``areas with inadequate protection'' for
the purposes of the Final Interim Strategy. Specifically, of the 13
sites for which we proposed 16 manatee protection areas, only 6 are
also identified as ``areas with inadequate protection'' in the Final
Interim Strategy.
The standard for manatee protection areas is that such
establishment is ``necessary to prevent the taking of one or more
manatees'' (50 CFR 17.103). Because ``take'' is very broadly defined,
action of some form could be justified for many coastal waters in the
State of Florida. In order to focus our efforts in the current
rulemaking, we defined four criteria for selecting sites as follows--
(1) evidence that the site is used by manatees; (2) historic evidence
of take (harm or harassment) of manatees at the site due to waterborne
human activities; (3) the potential for additional take based on
manatee and human use of the site; and (4) a determination that we
could implement effective measures at the site to address the
identified problem. Again, many sites throughout Florida could be
argued to satisfy the first three criteria to some extent; however, the
vast majority of sites do not satisfy criterion four because of
limitations we face in terms of personnel and budget and because many
areas present manatee protection problems due to circumstances that are
difficult or impossible to correct within our manatee protection area
authority.
On the other hand, ``areas with inadequate protection'' were
identified in the context of conducting ESA section 7 consultations
regarding U.S. Army Corps of Engineers authorization of boat access
facilities. In this context, watercraft-related ``take'' of manatees is
a distant indirect effect of the authorization of a boat access
facility. While we agree that construction of boat access facilities is
a potential contributing factor to watercraft-related take of manatees,
in the vast majority of cases a direct cause and effect relationship
does not exist between the construction of a marina, dock, or boat
ramp, and watercraft-related take of manatees. As such, in order to be
considered an ``area with inadequate protection'' in this context, the
existing protection measures on a given waterbody must be such that the
likely result of adding additional boat access to the area is a
foreseeable increase in watercraft-related take. This could be because
current protection measures are either totally lacking or woefully
inadequate in areas with chronic watercraft-related take, or because of
issues peculiar to the waterbody such that incidental take of manatees
is

[[Page 688]]

inevitable regardless of protective measures implemented.
As such, the standard for identifying a waterbody as an ``area with
inadequate protection'' is generally higher than that for establishing
a manatee protection area. This is why 7 of the 13 areas proposed as
manatee protection areas are not also ``areas with inadequate
protection.'' Conversely, 11 sites identified as ``areas with
inadequate protection'' were not proposed as manatee protection areas.
This is because either we determined that we could take no action at
this time to effectively address the identified problem at a given
site, or we decided that action at a particular site was not as high a
priority as action at the sites contained in the proposed rule, and was
therefore not included in the proposed rule due to limitations of staff
and/or budget. Designation as manatee protection areas could be
proposed for this latter group of sites in the future, if staffing and
funding permit, and if such actions are determined to be necessary for
the recovery of the species. Our list of ``areas with inadequate
protection'' will continue to be updated as new information becomes
available.
Comment 12: Some commenters expressed concern that requiring boats
to travel at slow speed throughout the entire length of the Barge Canal
and Sykes Creek would add an unreasonable amount of time to boat trips
through this area. One commenter estimated that the designations would
add 3 hours and 12 minutes to a round trip.
Response: In response to this concern we tested the amount of time
required to travel from the southernmost end of the slow speed zone on
Sykes Creek, through Sykes Creek and the Barge Canal to the Canaveral
Locks. This represents the longest possible distance that would need to
be traveled at slow speed under this final rule. Under the existing
speed zones this trip currently takes approximately 50 minutes. Under
the conditions established in this final rule, the same trip will take
approximately 1 hour and 25 minutes; an increase in travel time of 35
minutes.
Comment 13: Several commenters requested that we hold additional
public hearings.
Response: One public hearing was announced with the proposed rule.
We scheduled an additional three hearings in order to provide ample
opportunity for public comment. All hearings were well attended, and
everyone in attendance was afforded the opportunity to express their
comments and concerns. Additionally, we afforded a 60-day public
comment period to allow for the submission of written comments.
Finally, additional information regarding the proposed rule, including
the material presented at the public hearings has been available on our
website. We have also responded, in timely fashion, to requests for
information from specific stakeholders throughout the rulemaking
process. We believe that we have provided sufficient opportunity for
public comment on this rulemaking.
Comment 14: Some commenters expressed concern that human safety
could be compromised by forcing all boaters into narrow channels,
bottlenecks, and other confined circumstances.
Response: We were very cognizant of human safety issues during the
design phase of the manatee protection area planning process. Human
safety while boating has always been and will continue to be the
responsibility of the vessel operator. The two manatee protection areas
in this final rule require vessels to proceed at slow speed and, as
such, enhance boater safety while in these areas. At no site does the
designation of these manatee protection areas place mariners in a
position of encountering high-speed vessel traffic with no alternative
safe route.
Comment 15: Some commenters expressed concern that human safety
will be compromised by requiring vessel operators to proceed at slow
speeds in the face of emergency situations, like rapidly approaching
thunderstorms or medical emergencies.
Response: Federal regulations allow for an exemption to manatee
protection area regulations in the event of emergency. Specifically,
our regulations (50 CFR 17.105(c)) state that ``any person may engage
in any activity otherwise prohibited by this subsection if such
activity is reasonably necessary to prevent the loss of life or
property due to weather conditions or other reasonably unforeseen
circumstances, or to render necessary assistance to persons or
property.''
Comment 16: Several commenters noted that the size of the manatee
population appears to have increased over time, and questioned the need
for additional protective measures.
Response: A discussion of the current status of the manatee
population is provided in the ``Background'' section. Two of the
criteria for determining whether species are endangered or threatened
under the ESA are ``(D) the inadequacy of existing regulatory
mechanisms and (E) other natural or manmade factors affecting its
continued existence'' (16 USC 1533(a). Furthermore, the MMPA sets a
general moratorium for the taking of marine mammals. Regardless of the
size or status of the manatee population, we are required to ensure
that take of manatees is minimized to the extent possible, and all take
is prohibited unless authorized under the MMPA.
Minimizing, to the extent practical, the taking of manatees as a
result of watercraft collisions is a top priority in manatee recovery
and management programs. Currently, the areas addressed in this rule
have a significant potential for ``take'' based on the amount of
manatee use and are characterized by limited current protective
regulations.
Comment 17: Several commenters stated that we should focus on
better enforcement of existing regulations before imposing additional
restrictions on boaters.
Response: This issue was identified as one of the alternatives
addressed within the Manatee Protection Area Environmental Assessment.
While improvements in both the enforcement and education arenas are
laudable in enhancing manatee protection, such improvements may be of
little effect when applied to areas without regulations or with
inadequate protection to minimize the take of manatees. The State has
placed an increased emphasis on enforcement, and we have made a
substantial commitment to enforcing manatee protection areas over the
past few years. We anticipate that these efforts will continue.
Comment 18: Some commenters recommended that we abstain from
designation of Federal manatee protection areas and allow the State and
local authorities to provide for manatee protection.
Response: We are the Federal agency responsible for manatee
management and protection activities under both the ESA and the MMPA.
As such, we must take an active role in regulatory activities involving
the manatee. This in no way diminishes the important role that State
and local agencies play, or the role of the private sector. Recognition
is given to both State and local efforts to establish manatee
protection, and we are committed to supporting these efforts. We have
stated that the State should have leadership in establishing additional
manatee protection areas. With this final rule, we have focused on
sites where watercraft-related manatee mortality is highest, and where
we determined that Federal action can effectively address the needs in
the particular area. If the State is successful in implementing their
pending rules for Brevard County, we will consider

[[Page 689]]

withdrawing Federal designation of these sites.
Comment 19: Some commenters stated that the definition of ``Slow
Speed'' is arbitrary and unenforceable, and recommended that we
consider using some other standard, such as a ``miles per hour'' limit
to regulate vessel speed.
Response: The definition of ``slow speed'' used in this rule is
essentially the same as that used by the State in the Florida Manatee
Sanctuary Act (F.A.C. 68C-22). This definition is generally understood
by mariners and has proven to be enforceable. It is important to use a
definition of ``slow speed'' that complements that used by the State.
The sites included in this final rule are located in direct proximity
to areas regulated by the State. The use of the same definition will
ensure consistency and lessen confusion among the boating public.
The establishment of another definition of ``slow speed'' or the
use of a ``miles per hour'' speed zone poses many problems.
Establishment of a ``miles per hour'' standard would necessitate all
boats operating in these zones to be equipped with accurate
speedometers. This standard would also require enforcement officers to
procure equipment and attend periodic training to enforce these
conditions. Of more importance is that boats operating at speeds in
excess of what is allowed under the current definition of ``slow
speed'' pose increased threats to manatees. Boats proceeding while
``plowing the water'' with elevated bows, such as occurs when a vessel
is operating at greater than ``slow speed,'' both obscure the forward
vision of the operator and place the propulsion systems of the
watercraft lower in the water. Both of these conditions increase the
likelihood of a vessel collision with a manatee. With a subsequent
increase of speed, the configuration of the vessel changes to one of
planing. While this condition places the hull and outdrives of vessels
higher in the water, it also decreases the reaction time needed by both
the operator and the manatee to detect one another and take action to
avoid collision.
Comment 20: Many commenters stated that we have not adequately
evaluated the economic impact of these designations.
Response: The economic analysis conducted as part of this
rulemaking determined that these actions would not have a significant
economic impact. The two sites identified in this final rule will
remain open for public access, albeit at ``slow speed'' travel. Through
public hearings and public comment periods we sought information and
comment on the activities occurring in these two sites. To our
knowledge of the activities in these areas, and the fact that no
activities will be prohibited although some may be inconvenienced by
the need to proceed at slower speeds, we believe that this rule will
not result in a significant economic dislocation.
Comment 21: One commenter noted that the commenter operates boat
manufacturing facilities on the Barge Canal, and stated that the
proposed designation would adversely affect their ability to
economically continue boat testing operations resulting in a
substantial economic loss to the commenter's company. The commenter
requested that we provide an exemption to our rule, similar to the
exemption granted by the State, to allow the commenter to continue to
conduct up to 40 tests per month at speeds up to 35 miles per hour in a
portion of the Barge Canal.
Response: Federal regulations provide exceptions to manatee
protection area regulations only in limited circumstances (50 CFR
17.105(c)). We have assessed the information and recommendations
presented by this commenter and have concluded that we do not have the
authority under our existing regulations to grant an exception for this
type of activity based on economic hardship.
The MMPA prohibits the take of marine mammals, including manatees.
As such, we cannot authorize, or exempt from regulation, any activities
that may cause the take of manatees, other than those necessary for
protecting life and property. Nonetheless, we recognize that certain
existing uses of some waterbodies could be adversely affected or
eliminated by designation of manatee protection areas. We do not oppose
continuation of these uses, provided it can be demonstrated that such
uses will not cause take of manatees. Flexibility exists under the MMPA
to except certain waterborne activities in refuges from the speed zone
restrictions if it can be shown that such activities will be carried
out under stringent conditions that prevent the take of manatees. At
this time we intend to propose amendments to our regulations to
incorporate a process by which we may evaluate and authorize specific
activities within designated manatee protection areas, provided parties
requesting such authorization can demonstrate that their activities
will not cause the take of manatees.
Comment 22: One commenter suggested that our proposed rule was
contrary to the spirit and intent of Executive Order 12866, because we
did not contact the commenter directly regarding the impact the
proposed rule may have upon the individual's operations.
Response: As part of the rulemaking process, we published an
advance notice of proposed rulemaking in which we solicited information
from the public regarding issues that should be addressed through the
rulemaking. We also held six public workshops that provided additional
opportunities for the public to provide input and voice concerns. With
publication of the proposed rule, we afforded a 60-day period for
submitting written comments, and held four public hearings. Through the
commenter's participation in this process, we are aware of their
concerns. We have responded to those concerns to the best of our
ability with this final rule and our stated intent to pursue amendments
to our regulations. We have also updated the information regarding the
economic effects of the rule, as appropriate, to reflect information
submitted by the commenter. These actions meet the requirements of
Executive Order 12866.
Comment 23: Many commenters suggested that technological advances
may now make it possible for boaters and manatees to better detect the
presence of one another and thereby avoid collisions, and recommended
that these technologies be employed instead of restricting boat speeds.
Response: Ongoing research is evaluating the sensory abilities of
the manatee and the environmental factors that may affect these
abilities. Potential technologies may enable boaters to better detect
the presence of manatees. However, no technology is currently available
that is proven to be effective in avoiding collisions between manatees
and boats. For the foreseeable future, detection and avoidance
technology will likely be used to supplement, rather than replace,
traditional management strategies.
Comment 24: Some commenters recommended that we selectively
regulate watercraft and provide exemptions for those not responsible
for take of manatees. These commenters stated that most watercraft-
related manatee mortality is caused by large vessels and/or barges, and
that boats without propellers do not harm manatees.
Response: The manatee mortality database contains information on
the necropsy results of over 4,000 manatees. From this large
information source, several interesting aspects of watercraft-related
manatee mortality may be surmised. It is impossible to determine, in
most cases, the size of the boat which

[[Page 690]]

struck a manatee. The exception to this is the very few cases where a
responsible boater has reported a collision and researchers are able to
compare the actual vessel to the observed injuries. In a few documented
cases, manatees were obviously killed by a large vessel, the symptoms
of which include massive crushing and or bifurcation (slicing into
pieces) of the animal. The vast majority of cases involving watercraft-
related mortality involve less dramatic injuries. Investigations
comparing blade diameter and pitch indicate that the majority of
manatees killed from watercraft-related collision are struck by
smaller, fast-moving vessels.
As stated above, injuries to manatees from vessel impacts can be
characterized as either lacerations or blunt trauma. Percentages
generated by the mortality data-base indicate that 55 percent of the
watercraft-related mortalities are the result of blunt trauma. Such
trauma can result from impacts from vessel hulls, lower units, or other
vessel components. Vessels without propellers (e.g., personal
watercraft) still have the potential to ``take'' manatees.
Comment 25: Some commenters recommended that we consider factors
such as water depth and the presence of aquatic vegetation when
deciding the boundaries of manatee protection areas rather than base
boundaries on unnatural features such as navigation channels or bank-
to-bank designation of waterbodies.
Response: We considered such environmental features in evaluating
potential manatee protection sites, because these factors influence
manatee use of areas. There have been instances where habitat features
(such as water depth) have been used to delineate boundaries of
protection areas. The disadvantage of the use of such features for the
purpose of this rule is the complexity and costs associated with such
designs, and the potential for causing confusion among the regulated
public resulting in poor compliance. Protection areas designed around
environmental factors tend to be irregular and complex. This, in turn,
results in significant increases in costs of implementation in terms of
posting and the subsequent costs of maintenance. The limited resources
available for this program required a less complex strategy for
providing adequate protection for manatees and reasonable use of these
areas by the public.
Comment 26: Some commenters recommended that we allow the challenge
to the State rule for Brevard County to be adjudicated prior to taking
action at the Barge Canal and Sykes Creek.
Response: Information regarding these sites indicates a clear need
to establish protective measures to prevent, to the extent possible,
take of manatees. The process of finalizing this rule is occurring
simultaneously with the aforementioned challenge to the State rule. We
concluded that we must move forward with designation of these sites at
this time in order to ensure that appropriate protective measures are
in place at these sites as soon as possible.
Comment 27: Some commenters noted that the Barge Canal and Sykes
Creek provide ideal training sites for competitive rowers from around
the Nation and the world, particularly during winter months. These
waterbodies are ideally suited for training due to the fact that,
regardless of wind direction, crews can find protected areas with flat
water that prevents the rowing shells from being swamped. These
commenters further noted that crews are accompanied by chase boats that
carry the coaches, and that a primary function of these chase boats is
to render aid to the crews in the event of an emergency. The chase
boats are typically small john boats with 10 to 15 horsepower engines.
The commenters stated that designating the Barge Canal and Sykes Creek
as slow speed zones would deprive them of use of these waters as
training facilities, and that no other suitable locales for such
training are available in the area.
Response: We place a high priority on human safety. As such, we
will allow chase boats operating in the Barge Canal and Sykes Creek
manatee protection areas to travel in excess of ``slow speed'' for the
purpose of safety during training of sculling/crewing athletes. The
purpose of the chase boats is, in part, to render necessary assistance
to persons or property, which is excepted under our existing
regulations (50 CFR 17.105). Chase boats must remain in close proximity
to rowing shells to provide safety equipment (such as personal
flotation devices) and other needed assistance. Persons engaged in such
activity must remain vigilant for manatees and must take appropriate
action, including termination of training if necessary, to avoid take
of manatees. These vessels will be required to comply with all posted
speed zones when not actively engaged in training, including during
transit to and from training areas.

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action. The Office of Management and
Budget makes the final determination under Executive Order 12866.
a. This rule will not have an annual economic impact of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit analysis is
not required. We do not expect that any significant economic impacts
would result from the establishment of 2 manatee refuges (1,528.5
acres) in Brevard County in the State of Florida. The public support
for manatee protection is substantial in Florida. Using a contribution
continuum method and reinforced by other empirical techniques, a study
by Bendle and Bell in 1993 estimated that Floridians placed an asset
value of $3.2 billion (2001 dollars) on the protection of the manatee
population. This amounts to a per-household value of $18.12. The $3.2
billion is an estimate of the benefit derived by Floridians from the
existence of the manatee population.
The purpose of this rule is to establish two additional manatee
protection areas in Florida. We are proposing to reduce the level of
take of manatees by controlling human activity in these two areas.
Affected waterborne activities include the use of water vehicles. The
two areas designated would be slow-speed zones. The economic effect of
these designations will be measured by the number of watercraft users
who use alternative sites for their activity or have a reduced quality
of the waterborne activity experience at the designated sites. The
State of Florida has 12,000 miles of rivers and streams and 3 million
acres of lakes and ponds so the designation of 1,528 acres for lower
speed operation is unlikely to prevent any waterborne activity because
of this rule, although some individuals may need to modify slightly
when, where, or how they pursue certain waterborne activities.
One watercraft manufacturer is known to use one of the designated
sites as a boat testing area. While alternative sites without speed
zones are available nearby that allow for continuation of boat testing,
use of these sites would entail costs to the manufacturer due to
additional travel time needed to conduct testing. This rule will affect
the company's boat testing program. We are intending to propose
amendments to our regulations (50 CFR 17.105) to allow for otherwise
prohibited activities to

[[Page 691]]

continue provided those engaging in such activities can demonstrate
that the activities will not result in take of manatees.
For some watercraft users, the inconvenience and extra time
required to cross a slow-speed zone will reduce the quality of the
waterborne activity. The extra time required for commercial charter
boats to reach fishing grounds will reduce on-site fishing time and
could result in lower consumer surplus for the trip. The number of
recreationists and charter boats using the designated sites is not
known. The State of Florida has nearly 800,000 registered boats, but
only those boats and recreationists using the designated sites will
potentially be affected. However, since Florida has 12 thousand miles
of rivers and streams and 3 million acres of lakes and ponds, only a
small percentage of boat users will likely be affected by this rule.
The current designation of these two protection areas will cause some
inconvenience in travel time, but alternative sites within the
proximity of the sites are available for all waterborne activities.
Recreationists may be inconvenienced by having to travel to an
undesignated area, but they are not prohibited from participating in
any waterborne activity. Currently, no data sources estimate the amount
of recreational activity in and around the two designated areas. For
these reasons, we believe some inconvenience to the public may occur
because of reduced travel speeds but that the economic impact will not
be significant.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This rule
is consistent with the approach used by State and local governments to
protect manatees in Florida. We recognize the important role of State
and local partners, and we continue to support and encourage State and
local measures to improve manatee protection. We have focused the
current action on those sites in which we have determined that Federal
action can effectively address the needs in the particular area. If
comparable protections are put in place in the future, we will consider
removing those areas from Federal protection.
c. This final rule will not materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients. Minimal restrictions to existing human uses of the sites
will result from this rule, and no entitlements, grants, user fees,
loan programs or the rights and obligations of their recipients will be
affected.
d. This rule will not raise novel legal or policy issues. We have
previously established manatee protection areas.

Regulatory Flexibility Act

I certify that this rule will not have a significant economic
effect on a substantial number of small entities as defined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial/final
Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
We conducted both public hearings and public notice and comment
periods to determine the activities occurring in Barge Canal and Sykes
Creek that might be affected by the creation of these manatee refuges.
Based on the activities that we are aware of being conducted in these
areas, and the fact that no activities will be prohibited although some
may be inconvenienced by the need to proceed at slower speeds, we
believe that this rule will not result in a significant economic
dislocation.
To determine the potential effects of this rule on small entities,
we looked at economic data from Brevard County. Table 1, below, depicts
general economic characteristics, and Table 2 gives employment data. As
can be seen in Table 1, the growth rate is slightly lower than the
State average. Larger households account for the lower per capita
income estimate. The proportion of total industry earnings coming from
the amusements and recreation sector is 0.5 percent. The service sector
is the largest economic contributor followed by retail trade and the
real estate sectors. Overall, only a small proportion of earnings come
from the amusement and recreation sector. As a result, a small impact
to the recreation sector would not result in a significant effect on
county-level income.

Table 1.--Economic Characteristics of the Seven Affected Counties in Florida--1997
--------------------------------------------------------------------------------------------------------------------------------------------------------
Services
Per industry
capita 10 year Personal 10 year Total earnings for
Selected Florida Counties Employment personal rate of Income rate of industry amusements Percent
income growth ($000) growth earnings and of total
(Dollars) (Percent) (Percent) ($000) recreation
($000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Establishing Sanctuaries:
Citrus........................................ 35,663 $18,493 3.9 $2,060,167 6.9 $793,347 $6,650 0.8
Hillsborough.................................. 644,694 23,719 5.2 21,558,783 6.6 18,847,236 67,676 1.4
Pinellas...................................... 506,946 28,367 4.9 24,770,929 5.5 13,876,518 114,826 0.8
Establishing Refuges:
Brevard....................................... 223,815 22,205 3.7 10,342,080 6.3 6,255,354 34,237 0.5
Charlotte..................................... 47,091 21,861 3.7 2,894,781 7.6 995,159 10,336 1.0
Lee........................................... 196,448 25,568 4.4 9,862,900 7.3 4,848,936 61,103 1.3
Saralota...................................... 169,984 35,654 5.2 10,706,931 6.8 4,239,034 114,742 2.7
State of Florida.................................. 8,032,538 24,799 4.5 363,979,647 6.6 220,985,959 4,255,304 1.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: http://govinfo.library.orst.edu/cgi-bin/reis-list.

Table 2 provides employment data using Standard Industrial
Classification (SIC) codes. The latest available published data
pertained to 1997 for the total number of establishments in the SIC
codes for fishing, hunting, trapping (SIC code 9), water transportation
(SIC code 44), miscellaneous retail and services (SIC code 59),
amusement and recreation services (SIC code 79), and nonclassifiable
establishments. These are the establishments most likely to be directly
associated with recreationists pursuing waterborne activities where
manatees may be involved. As can be seen on Table 2, of the total
number of establishments in these SIC codes, a large proportion employ
fewer than 9 employees with the largest number of establishments
employing fewer than 4 employees. If any economic impacts are
associated with this rule, they will affect some proportion of these
small entities.

[[Page 692]]

Table 2.--Employment Characteristics of Brevard County, Florida--1997
[Includes sic codes 09, 44, 59, 79, services, and nec]\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Mid-March Total Number of Number of Number of establishments
employment establishments establishments (1- establishments (5- establishments (10- (20 and over
4 employees) 9 employees) 19 employees) employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Brevard County........................... 65,049 5,292 3,145 1,075 581 591
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: http://fisher.lib.virginia.edu/cig-local/cbpbin/go.cgi.
\1\ sic 09--Fishing, hunting, and trapping.
sic 44--water transportation.
sic 59--miscellaneous retail services division.
sic 79--amusement and recreation services nonclassifiable establishments division.

All of the acreage designated (1,528.5 acres) by this rule is for
manatee refuges, which would only require a reduction in speed. We
acknowledge that watercraft operating in barge canal will be required
to go slower in designated areas and will required approximately 35
additional minutes to traverse the canal. We believe the additional
time necessary will cause more than an insignificant economic effect.
The additional time required may cause some recreationists to go to
alternative sites, which may cause some loss of income to some small
businesses. However, the additional time required is minimal and we
believe that this will not be a significant economic dislocation.
The only known direct effect will be on a boat manufacturer which
tests boats in the Barge Canal. Testing boats require the manufacturer
to operate boats at speeds of up to 35 mph, and the costs of relocating
the test site have not been specifically estimated. However, based on
information provided by the company, designation of the Barge Canal as
a manatee protection area may have a more than minimal impact on the
boat testing operations of this business. Substitute sites are
available within a reasonable distance; however, the costs of operating
at these sites will be substantially greater than the costs of using
the current test site in the Barge Canal.
As mentioned above, we intend to propose amendments to our
regulations (50 CFR 17.105) to incorporate a process by which we may
evaluate and authorize specific activities within designated manatee
protection areas, provided parties requesting such authorization can
demonstrate that their activities will not cause the take of manatees.
If the manufacturer is able to meet this standard, we anticipate that
this rule will result in at most a temporary impact on their boat
testing program.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2). This rule:
a. Does not have an annual effect on the economy of $100 million or
more. As shown above, this final rule may cause some inconvenience to
recreationists because of the speed restriction on manatee refuge
areas, but this should not translate into any significant business
reductions for the many small businesses in the seven potentially
affected counties, aside from the above-mentioned boat manufacturer. An
unknown portion of the establishments shown on Table 2 could be
affected by this rule. Because the restrictions on recreational
activity are believed to be no more than an inconvenience for
recreationists, we believe that any economic effect on small entities
resulting from changes in recreational use patterns will be
insignificant also.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Aside from the above-mentioned effects
of this rule on the testing of boats in the Barge Canal, which have not
been specifically quantified and which are anticipated to be temporary,
unforeseen changes in costs or prices for consumers stemming from this
rule are unlikely. The charter boat industry may be affected by lower
speed limits for some areas when traveling to and from fishing grounds.
No specific information regarding potential costs to the charter boat
industry was provided during the rulemaking process. We do not believe
that reduced speed limits will result in a significant economic effect.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. As
stated above, this rule may generate some level of inconvenience to
recreationists because of speed limits, and a temporary interruption in
the testing of boats in the Barge Canal, but these effects are believed
to be minor and will not interfere with the normal operation of other
businesses in the affected counties. The added travel time to traverse
some areas is not expected to be a major factor that will impact
business activity.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. The
designation of manatee refuges and sanctuaries imposes no new
obligations on State or local governments.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. As such, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.

Takings

In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. The final manatee protection areas are located over
State-owned submerged bottoms. Any property owners in the vicinity will
have navigational access to their property.

Federalism

In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on the
State, in the relationship between the Federal Government and the
State, or on the distribution of power and responsibilities among the
various levels of government. As discussed earlier, we coordinated with
the State of Florida to the extent possible on the development of this
rule.

[[Page 693]]

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.

Paperwork Reduction Act

This regulation does not contain collections of information that
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et seq. The final regulation will not impose new record keeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act. This rule does not constitute a
major Federal action significantly affecting the quality of the human
environment. An environmental assessment has been prepared and is
available for review upon request by writing to the Jacksonville Field
Office (see ADDRESSES section).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175 and 512 DM 2, we have evaluated
possible effects on federally recognized Indian tribes and have
determined that there are no effects.

Energy Supply, Distribution or Use (Executive Order 13211)

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this rule is
not a significant regulatory action under Executive Order 12866 and it
only requires vessels to proceed at slow speed along two small segments
(600.6 ha or 1528.5 acres) of waterways in Florida, it is not expected
to significantly affect energy supplies, distribution, and use.
Therefore, this action is a not a significant energy action and no
Statement of Energy Effects is required.

References Cited

A complete list of all references cited in this final rule is
available upon request from the Jacksonville Field Office (see
ADDRESSES section).

Author

The primary author of this document is Cameron Shaw (see ADDRESSES
section).

Authority

The authority to establish manatee protection areas is provided by
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.), and the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-
1407), as amended.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub.L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. In Sec. 17.102, remove the definition for ``water vehicle'' and
add definitions, in the alphabetical order, as follows:

Sec. 17.102 Definitions.

* * * * *
Idle speed is defined as the minimum speed needed to maintain
steerage (direction) of the vessel.
* * * * *
Planing means riding on or near the water's surface as a result of
the hydrodynamic forces on a water vehicle's hull, sponsons, foils, or
other surfaces. A water vehicle is considered on plane when it is being
operated at or above the speed necessary to keep the vessel planing.
Slow speed is defined as the speed at which a water vehicle
proceeds when it is fully off plane and completely settled in the
water. Due to the different speeds at which water vehicles of different
sizes and configurations may travel while in compliance with this
definition, no specific speed is assigned to slow speed. A water
vehicle is not proceeding at slow speed if it is: on a plane; in the
process of coming up on or coming off of plane; or creating an
excessive wake. A water vehicle is proceeding at slow speed if it is
fully off plane and completely settled in the water, not creating an
excessive wake.
Slow speed (channel exempt) means that the slow-speed designation
does not apply to those waters within the maintained, marked channel.
Slow speed (channel included) means that the slow-speed designation
applies both within and outside the designated channel.
Wake means all changes in the vertical height of the water's
surface caused by the passage of a water vehicle, including a vessel's
bow wave, stern wave, and propeller wash, or a combination thereof.
* * * * *
Water vehicle, watercraft, and vessel include, but are not limited
to, boats (whether powered by engine, wind, or other means), ships
(whether powered by engine, wind, or other means), barges, surfboards,
personal watercraft, water skis, or any other device or mechanism the
primary or an incidental purpose of which is locomotion on, or across,
or underneath the surface of the water.

3. Amend Sec. 17.108 as follows:
a. Remove the note following paragraph (b) and;
b. Add paragraph (c) as set forth below.

Sec. 17.108 List of designated manatee protection areas.

* * * * *
(c) Manatee refuges. The following areas are designated as manatee
refuges. For each manatee refuge, we will state on appropriate signs
which, if any, waterborne activities are prohibited, and state the
applicable restrictions, if any, on permitted waterborne activities.
The areas that will be posted are described as follows:
(1) The Barge Canal Manatee Protection Area
(i) The Barge Canal Manatee Protection Area is described as all
waters lying within the banks of the Barge Canal, Brevard County,
including all waters lying within the marked channel in the Banana
River that lie between the east entrance of the Barge Canal and the
Canaveral Locks; containing approximately 276.3 ha (682.7 acres).
(ii) Watercraft are required to proceed at slow speed (channel
included) all year. The use of watercraft at speeds greater than slow
speed is prohibited throughout the Barge Canal Manatee Protection Area.
BILLING CODE 4310-55-P

[[Page 694]]

[GRAPHIC]
[TIFF OMITTED] TR07JA02.000

[[Page 695]]

(2) The Sykes Creek Manatee Protection Area.
(i) The Sykes Creek Manatee Protection Area is described as all
waters, including the marked channel in Sykes Creek, Brevard County. In
particular, the portion of Sykes Creek southerly of the southern
boundary of that portion of the creek commonly known as the ``S'' curve
(said boundary being a line bearing East from a point on the western
shoreline of Sykes Creek at approximate latitude 28 degrees 23'24" N,
approximate longitude 80 degrees 41'27" W) and northerly of the Sykes
Creek Parkway; containing approximately 342.3 ha (845.8 acres).
(ii) Watercraft are required to proceed at slow speed (channel
included) all year. The use of watercraft at speeds greater than slow
speed is prohibited throughout the Sykes Creek Manatee Protection Area.

[[Page 696]]

[GRAPHIC]
[TIFF OMITTED] TR07JA02.001

Dated: December 28, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-265 Filed 1-4-02; 8:45 am]
BILLING CODE 4310-55-C

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