[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Rules and Regulations]
[Pages 59408-59426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23820]



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Part VI





Department of the Interior





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Fish and Wildlife Service



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Emergency Rule To 
Establish Seven Additional Manatee Protection Areas in Florida; Final 
Rule

  Federal Register / Vol. 67, No. 183 / Friday, September 20, 2002 / 
Rules and Regulations  

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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; Emergency Rule To 
Establish Seven Additional Manatee Protection Areas in Florida

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), take emergency 
action to establish seven additional manatee protection areas in 
Florida.
    This action is authorized under the Endangered Species Act of 1973, 
as amended (ESA), and the Marine Mammal Protection Act of 1972, as 
amended (MMPA),base on our determination that there is now substantial 
evidence that imminent danger of taking one or more manatees at these 
sites and the emergency designation of refuges and sanctuaries is 
necessary to prevent taking. In evaluating the need for emergency 
designation of additional manatee protection areas, we considered the 
needs of the manatee, the current levels of mortality, and the 
likelihood of additional take of manatees due to human activity. We are 
establishing one manatee sanctuary in Citrus County, one manatee 
sanctuary and one manatee refuge in Pinellas County, and two manatee 
sanctuaries and two manatee refuges in Hillsborough County. All 
waterborne activities will be prohibited within the sanctuaries and 
watercraft will be required to proceed at ``idle speed'' or slow 
speed,'' as specified within the refuges on a seasonal basis.

EFFECTIVE DATE: September 20, 2002. This emergency rule will remain in 
effect through January 20, 2003. We anticipate making a final 
determination of these sites in a final rule for manatee refuges and 
sanctuaries on or before November 1, 2002.

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

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

SUPPLEMENTARY INFORMATION:

Background

    The West Indian manatee is federally listed as an endangered 
species under the ESA (16 U.S.C. 1531 et seq.) (32 FR 4001) and the 
population is further protected as a depleted stock under the MMPA (16 
U.S.C. 1361-1407). Manatees reside in freshwater, brackish, and marine 
habitats in coastal and inland waterways of the southeastern United 
States. The majority of the population can be found in waters of the 
State of Florida throughout the year, and nearly all manatees winter in 
peninsular Florida during the winter months. The manatee is a cold-
intolerant species and requires warm water temperatures generally above 
20 [deg]Celsius (68 [deg]Fahrenheit) to survive during periods of cold 
weather. During the winter months, most manatees rely on warm water 
from natural springs and industrial discharges for warmth. In warmer 
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 has been no 
confirmation that significant threats to the species, including human-
related mortality, injury, and harassment, have been reduced or 
eliminated to the extent that the Florida manatee may be reclassified 
from endangered to threatened status.
    Human activities, and particularly waterborne activities, can 
result in the take 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 
kills or injures wildlife (50 CFR 17.3). Such an act may include 
significant habitat modification or degradation that kills or injures 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering. Harass includes intentional 
or negligent acts or omissions that create 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 
take 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 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 human population growth and visitation is 
the increase in the number of watercraft that travel Florida waters. In 
2001, 943,611 vessels were registered in the State of Florida. This 
represents an increase of 42 percent since 1993. 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 manatee habitat has had direct 
and indirect impacts on this endangered

[[Page 59409]]

species. Direct impacts include injuries and deaths from watercraft 
collisions, deaths and injuries from water control structure 
operations, lethal and sublethal entanglements with commercial and 
recreational fishing gear, and alterations of behavior due to 
harassment. Indirect impacts include habitat destruction and 
alteration, including decreases in water quality throughout some 
aquatic habitats, decreases in the quantity of warm water in natural 
spring areas, the spread of marine debris, and general disturbance from 
human activities.
    Activities affecting manatees at warm water sites include boat 
operations, recreational fishing, directed interactions between humans 
and manatees (including pursuit by swimmers and boats), and other 
disturbances. Specifically, boats operating within manatee 
aggregations, anglers casting fishing lines into aggregations, boaters 
and/or swimmers pursuing manatees, and other disruptions cause animals 
to disperse and become displaced from warm water refuges. Displaced 
animals may be exposed to cold water temperatures below known 
physiological thresholds. Exposure to cold may cause hypothermia or 
cold stress, conditions known to kill manatees (Worthy 1999). In 
addition, prolonged, nonlethal exposure to cold may affect calving 
success and fecundity (Rommel 2002).
    Tyson (1998) documented boating and fishing activity in warm water 
discharges. Observations included anglers maneuvering boats within 
manatee aggregations, boat operators looking for and petting manatees, 
boaters attempting to swim with manatees, anglers wading and casting 
into manatee aggregations, manatees being hooked and maneuvered while 
entangled, a manatee struck with an anchor, manatees being provided 
with water, etc. These activities resulted in the displacement of 
animals, manatees hooked or entangled in fishing line, possible boat 
strikes, and other adverse interactions. Swimmer interactions were 
further documented by Wooding (1997) at Three Sisters Springs, Citrus 
County, Florida. Some manatees left the then unprotected spring area 
when boats with swimmers approached at the start of the day. Other 
manatees left when the first swimmers entered the water. Those that 
remained either ignored swimmers or turned and swam out of reach; a 
small number sought out physical contact with swimmers. Gorzelany 
observed manatees being ``crowded out'' (displaced) by large numbers of 
swimmers searching out encounters with wintering manatees (Mote Marine 
Laboratory, pers. comm. 2001).
    Anglers have been observed casting into manatee aggregations at 
warm water sites, hooking and entangling manatees. Discarded fishing 
line, at times caught on water bottoms, plants, and structures, is also 
known to entangle manatees and is occasionally ingested by manatees. 
Entangled monofilament fishing line may cut into the manatees' skin; 
manatees are frequently scarred by these cuts and flippers are 
occasionally amputated through the cutting effect of the line. There 
are records of manatees having died from entanglements due to infection 
and septicemia associated with these injuries. Manatees ingesting 
fishing line and hooks are known to die from intestinal obstructions, 
tears in the gut, and other complications.
    In 2001, fifteen manatees were rescued from fishing gear, including 
seven from monofilament line. The number of such incidents has been 
increasing over time; in the early phases of the program, no more than 
one or two incidents were documented per year. Recent annual totals 
have ranged between ten and fifteen reported incidents. Since 1973, a 
total of 124 gear-associated manatees has been rescued, including 50 
from monofilament entanglement and ingestion (U.S. Fish and Wildlife 
Service, unpubl. data). In addition to these rescues, at least 14 
deaths have been attributed to monofilament fishing line and others are 
suspected (Florida Fish and Wildlife Conservation Commission, unpubl. 
data.).
    Boats operating within and adjacent to warm water aggregations of 
manatees pose an additional threat to wintering manatees, since 
manatees are killed or injured as a result of collisions with 
watercraft. In 2001, at least 25 percent (82 of 325) of known manatee 
deaths were caused by watercraft. This was the second highest year on 
record (out of more than 27 years of monitoring) for total number of 
watercraft-related manatee deaths. Nonlethal injuries are also 
documented by researchers who monitor the accumulation of scars from 
boat strikes on individual manatees on an annual basis. As documented 
by the U.S. Geological Survey's database, most animals that are known 
to have been struck are struck multiple times. Such nonlethal injuries 
may reduce calf production and survival in wounded females (O'Shea et 
al. 2002). The likelihood of adverse manatee encounters with watercraft 
increases in the vicinity of wintering sites because of the greater 
concentration of animals within these confined areas.
    The State of Florida's manatee carcass salvage program has 
documented the presence of watercraft-killed manatees within the 
vicinity of warm water discharges. While the presence of a carcass does 
not necessarily indicate that a collision occurred at that site, there 
are a few cases where collisions have been documented at warm water 
sites. In one instance, a tug/barge maneuvering within the approach to 
a warm-water aggregation site ran over a manatee, crushing and killing 
the animal between the hull and the water bottom (Florida Fish and 
Wildlife Conservation Commission, unpubl. data.). In Lee County, two 
manatees using a secondary warm-water site located at the foot of a 
navigation lock were struck and killed by watercraft operating nearby 
(Florida Fish and Wildlife Conservation Commission, unpubl. data.). 
Researchers monitoring winter manatee aggregations have noted the 
frequent and regular occurrence of nonlethal, fresh cuts on animals 
using these sites, particularly at the outset of the winter season 
(Hartley, Florida Division of Parks and Recreation, pers. comm. 2001; 
Curtin, U.S. Geological Survey (USGS) Contractor, pers. comm. 2001).
    To minimize disturbance at both industrial and natural warm water 
sites, we and the State of Florida have implemented a series of Federal 
sanctuaries and State protection areas at and near these sites to 
ensure that wintering manatees are minimally disturbed during this 
critical time of year. To date, the majority of known warm water sites 
used by manatees in Florida have been protected. However, the sites 
designated in this rule provide additional protection or enhance 
existing protection areas.
    Federal 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 have discretion, by regulation, to establish 
manatee protection areas whenever there is substantial evidence showing 
such establishment is necessary to prevent the taking of one or more 
manatees. In accordance with 50 CFR 17.106, areas may be established on 
an emergency basis when such takings are imminent.
    We may establish two types of manatee protection areas--manatee 
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR 
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

[[Page 59410]]

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 dredge and fill activities.

Manatee Settlement Agreement

    A settlement agreement between the Service, the U.S. Army Corps of 
Engineers, and a coalition of conservation organizations and 
individuals (Save the Manatee Club v. Ballard, Civil No. 00-00076 EGS 
(D.D.C.), January 5, 2001) included a requirement that the we propose a 
rule for ``new manatee refuges and sanctuaries throughout peninsular 
Florida * * * to ensure that adequate protected areas are available * * 
* to satisfy the biological requirements of the species, with a view 
towards the manatee's recovery * * *.'' We further agreed to ``evaluate 
the propriety of invocation of [our] emergency sanctuary/refuge 
authority.''
    In a recent court ruling, dated August 16, 2002, related to the 
Settlement Agreement, the court directed that we conduct an evaluate 
sites for emergency designation. Based on that evaluation, we have now 
determined emergency designations of manatee refuges or manatee 
sanctuaries are warranted for seven sites.

Site Selection Process and Criteria

    In our initial evaluation of ``imminent'' threat of take at sites 
that may warrant protection through our emergency sanctuary/refuge 
designation authority, which we conducted in 2000-2001, we did not 
identify any sites where takings met this standard. In evaluating 
whether these sites required emergency protection, we had to determine 
whether take would occur in a specific amount of time. For example, 
large numbers of animals concentrated in a relatively small area are 
much more likely to become an attraction for humans or may be unable to 
avoid the passage of boats. We also evaluated whether or not there was 
a history of harassment or other forms of take at the site and the 
likelihood of future take, including the type of recent mortality. We 
further considered whether there were existing protective measures in 
place to prevent manatee mortality. Finally, we looked at whether the 
type of take that had occurred would likely be avoided by additional 
protective measures.
    In preparation for making a decision on sites to propose as manatee 
protection areas, we met with representatives from local, State, and 
Federal agencies and organizations involved in manatee research, 
management, and law enforcement. These meetings helped us develop a 
list of sites throughout Florida and southeast Georgia that manatee 
experts believed should be considered for possible designation as 
manatee protection areas.
    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); 28 participants 
specifically opposed and 8 specifically supported the areas. An 
additional 36 comments were not specific to the topic or discussed 
other items. Fifteen commentors 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.
    We selected sites to propose as manatee protection areas from the 
list of sites developed through the preliminary meetings and from 
information gathered at the public workshops and responses 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) 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 information, including 
aerial survey and mortality data and additional information from the 
Florida Marine Research Institute and the USGS Sirenia Project. These 
data were supplemented with information from manatee experts, the 
public, and our best professional judgment. In determining the 
potential effectiveness of our proposed actions, we considered the 
costs of managing and enforcing manatee protection areas and the 
benefits (or lack thereof) 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 
entail additional administrative burdens in terms of identifying and 
providing access to affected residents. Finally, we evaluated the 
effectiveness of our proposed actions against the likely effectiveness 
of anticipated similar actions by State and/or local governments. It 
was our goal to avoid sites that could be most effectively addressed by 
State or local government and we have made every effort to make our 
designations consistent with the existing adjacent State or local 
designations.

Previous Federal Action

    On August 10, 2001, we published in the Federal Register a proposed 
rule to establish 16 additional manatee protection areas (66 FR 42318), 
including the seven areas designated in this emergency rule. In the 
proposed rule, 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,

[[Page 59411]]

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. On January 7, 2002, we published a final rule that 
established two additional manatee protection areas located within the 
water bodies commonly known as the Barge Canal and Sykes Creek, in 
Brevard County (67 FR 680). We will publish in the Federal Register a 
final decision on the manatee protection areas included in this 
emergency rule and the seven remaining manatee protection areas from 
the August 10, 2001, proposed rule no later than November 1, 2002. In 
addition to publishing this rule in the Federal Register, we will post 
it on our website and publish notice in the following newspapers: 
Citrus County Chronicle, Orlando Sentinel, St. Petersburg Times, 
Sarasota Herald-Tribune, Tallahassee Democrat, and Tampa Tribune.

Reasons for Emergency Determination

    In deciding to implement this emergency rule, we have carefully 
assessed the best available information to evaluate manatee and human 
interactions at these seven sites. We now believe these 7 wintering 
sites, described in our August 10, 2001, proposed rule to establish 16 
additional manatee protection areas in Florida (66 FR 42318), meet the 
criteria for emergency designation. We believe that there is imminent 
danger of a take of one or more manatees in these warm-water wintering 
sites because manatees congregate in these locations seasonally, there 
is a history of harassment at these and/or similar sites, future take 
is likely, current regulatory measures are inadequate, and anticipated 
State or local actions will not have been finalized or implemented to 
be in effective for the winter season. Emergency designation is 
appropriate at this time because it will reduce the potential for take 
to occur before a final designation can be prepared, published and 
posted for these sites. The nature of taking manatees at these sites is 
through harassment and injury and/or mortality from human interactions, 
including boating and fishing within nearby manatee aggregation areas. 
This type of take has been documented in other warm-water wintering 
sites in Florida where people have access to congregated manatees 
without sufficient protective measures. Emergency designation of these 
warm water wintering sites is consistent with previous Service 
designations because all previous emergency designations have involved 
other winter aggregation sites.
    Manatee presence at these sites has been closely documented by 
manatee researchers in more than 30 years of assessing manatee use of 
these sites (Hartman 1979, Weigle et al. 2001, and Wright et al. 2002). 
Researchers have visited the sites to photo-document the individual 
identities of manatees using these areas (Florida Fish and Wildlife 
Conservation Commission, unpubl. data). Manatees have been tagged and 
monitored to better understand use patterns associated with the sites 
(Weigle et al. 2001). Flamm summarized tagged manatee behavior and 
plotted common use sites and travel corridors. These summaries 
characterize the Batrow and Big Bend power plant sites as extensively 
used areas and portray travel corridors adjacent to and between all 
three power plant sites (pers. Comm., 2002). Also, researchers have 
surveyed the sites with airplanes and helicopters in an effort to come 
up with a minimum population estimate of the animals known to use these 
sites (Ackerman et al. 1995, Edwards, pers. comm. 2002). These 
estimates reveal that these areas are used by significant numbers of 
manatees during the winter. Researchers have observed 123 manatees at 
Blue Waters. Researchers have seen as many as 102 manatees using the 
Bartow effluent and a maximum count of 316 manatees at the Tampa 
Electric Company's Big Bend power plant (Florida Fish and Wildlife 
Conservation Commission, unpublished data 2002). Between 25 and 100 
manatees have been observed at the Port Sutton site (U.S. Fish and 
Wildlife Service, 2001).
    Harassment has been documented at two of these four sites (Blue 
Waters and the Tampa Electric Company's Big Bend power plant). At Blue 
Waters, people and boats in the water have been observed pursuing 
manatees, and boat operations within the aggregation areas have 
disrupted resting manatees, causing them to flee (Wells, Mote Marine 
Laboratory, pers comm. 2000). Anglers have been seen at the Tampa 
Electric Company's Big Bend power plant, casting into and disrupting 
resting animals. Boat traffic within this area has also been observed 
to cause manatees to flee (Florida Fish and Wildlife Conservation 
Commission, unpubl. data). Researchers documented significant use of 
the Bartow power plant waters by boats (Flamm, pers. Comm. 2002). 
Harassment has been documented at other power plants (Tyson 1998). 
Given the similarities between the Big Bend power plant and the other 
two power plant sites at Bartow and Port Sutton, and other warm water 
discharges around the state, there it is highly likely that similar 
activities will take place at these sites as well.
    Observed harassment has taken place despite current protections at 
these warm water sites. The Blue Waters and surrounding areas are 
protected under the authority of the State's Florida Manatee Sanctuary 
Act. This designation requires boat operators to reduce their speeds in 
proximity to the aggregation site, yet fails to prevent the public from 
interacting with manatees within the aggregation area. The State 
similarly protects the Big Bend site--a ``No Entry'' area and slow/idle 
speed zones have been designated within the area of the power plant. 
The extent of these protections fails to prevent the public from 
interacting with manatees and the area of the speed restrictions fails 
to provide manatees with an adequate protective buffer. Anglers are 
able to get close enough to cast into manatee aggregations and boats 
continue to operate at high speeds within manatee travel approaches. A 
seasonal ``No Motorboat Entry'' zone, designated by Pinellas County, is 
in effect at the Bartow site. This designation allows public access to 
the warm-water aggregation area, an area similar to other discharges 
where manatees have been harassed by anglers, boaters, and swimmers. 
Port Sutton is currently unprotected and manatees are vulnerable to 
similar pressures at this site. The State of Florida and other 
government entities have proposed supplemental protective measures for 
some of these sites; the State has proposed to better protect the Blue 
Waters and has included the Port Sutton site in its list of sites in 
need of protection. Hillsborough County has similarly promised to 
supplement

[[Page 59412]]

protection at the Big Bend site. However, agency implementation of 
these measures is not scheduled to occur prior to this winter.
    Use of our emergency authority to designate manatee refuges and 
sanctuaries will allow us to expedite protection at these sites. We are 
working to finalize a rule on the August 10, 2001, proposed areas and 
we anticipate publication of our final determination on or before 
November 1, 2002. If we waited until the final rule announcing the 
agency's final determination were to be published on November 1 to 
designate the sites, the areas would not be posted until a significant 
part of the critical wintering period had passed. By using our 
emergency rulemaking authority, we will be able to expedite designation 
and posting of these areas. We have discretionary authority, 50 CFR 
17.106, to take emergency action when there is ``substantial evidence'' 
that take of one or more manatees is ``imminent'' and such action ``is 
necessary to prevent'' this take. The emergency designation is limited 
to 120 days. The effect of this authority is to allow us to implement 
manatee protection measures on an accelerated schedule. We interpret 
``imminent'' take to be that which would be reasonably certain to occur 
during the time it would take to propose and finalize a rule 
designating a site as a refuge or sanctuary. As winter approaches, we 
now believe the wintering sites in our August 10, 2001, Federal 
Register notice (proposed refuges and sanctuaries rule) qualify for 
emergency designation. We believe there is imminent danger of a take of 
one or more manatees in these warm-water wintering sites because 
manatees congregate in these locations; there is a history of 
harassment at these sites; future take is likely; there are no 
protective measures in place or the current protective measures are 
inadequate; and, the anticipated actions by the state or counties will 
not be implemented in time for this winter season. In addition higher 
manatee mortalities indicate that protecting these sites from 
activities that might affect productivity or survival is more critical 
than was believed in previous years. Emergency designation is 
appropriate at this time because it will reduce the potential for take 
to occur before a proposed and final designation can be prepared and 
published for these sites. The nature of the danger at these sites is 
taking of manatees through harassment and injury and/or mortality from 
human interaction. This interaction typically includes boating or 
fishing in areas used by the congregated manatees. Therefore, we are 
establishing these seven manatee protection areas on an emergency basis 
to prevent the imminent taking of one or more manatees by providing 
maximum protection for manatees until permanent sanctuaries and refuges 
are put in place.

Effective Date

    We are making this rule effective upon publication. In accordance 
with the Administrative Procedure Act, we find good cause as required 
by 5 U.S.C. 553 (d)(3) to make this rule effective immediately upon 
publication in the Federal Register. As discussed under ``Reasons For 
Emergency Determination,'' we need to establish these manatee 
protection areas prior to the time when manatees will be seeking warmer 
waters for the winter. A 30-day delay in making these sites effective 
would result in further risks of manatee mortality, injury and 
harassment during the period of delay. In view of the finding of 
substantial evidence that taking of manatees at these seven sites is 
imminent, we believe good cause exists to make this rule effective upon 
publication. For the same reasons, we also believe that we have good 
cause under 5 U.S.C. 553 (b)(3)(B) to issue this rule without notice 
and public procedure. In a proposed rule of August 10, 2001 (66 FR 
42318), we solicited public comment on the seven manatee protection 
areas established by this rule as required by 5 U.S.C. 553). The time 
required to complete the standard rule making process would be contrary 
to the public interest because of the imminent threat to manatees and 
the need to provide immediate protection through emergency action.

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, 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.

Exceptions

    Existing regulations provide regulatory relief for watercraft 
access to private residences, boat houses, and boat docks located in 
manatee sanctuaries (50 CFR 17.108). Sanctuaries described in this 
emergency rule are located in areas adjoining property owned by public 
and other private property owners. Public and private property owners 
will be permitted to access and maintain property within respective 
manatee sanctuaries. From October 1 through March 31, watercraft 
operations (conducted by appropriately identified vessels) will be 
restricted to idle speed. Maintenance activities necessary for 
maintaining property and waterways during this period of time are also 
allowed, subject to any applicable Federal, State, and/or local 
government permitting requirements. We believe that these exceptions 
will ensure that this rule has a minor impact on activities conducted 
by public and private property owners.

Areas Designated as Manatee Sanctuaries and Refuges by Emergency Rule

Blue Waters Manatee Sanctuary

    We are establishing a seasonal manatee sanctuary, containing 1.7 
hectares (ha) (4.1 acres) more or less, at the headwaters of the 
Homosassa River, adjacent to the Homosassa Springs State Wildlife Park, 
commonly referred to as the Blue Waters, in Citrus County. All 
waterborne activities will be prohibited from October 1 through March 
31, inclusive.
    The headwaters of the Homosassa River are an important wintering 
site for manatees (U.S. Fish and Wildlife

[[Page 59413]]

Service, unpublished data). The site is in close proximity to the 
Homosassa Spring, a Class 1 magnitude spring, which provides warm water 
from the Florida aquifer. This warm water is essential to the survival 
and well-being of a significant number of manatees during cold weather 
periods. In recent years, animals have been observed at this warm water 
site as early as October. As many as 123 manatees have been observed 
on-site during a single day (U.S. Fish and Wildlife Service, 
unpublished data). Homosassa Springs State Wildlife Park, located 
directly upstream from the site, is not accessible to the manatees 
wintering at Blue Waters because the spring head is used to confine and 
treat distressed manatees.
    The presence of manatees, coupled with the shallow clear nature of 
the water, has attracted an increasingly large number of swimmers and 
divers to the site. These visitors come to the site to swim with and 
otherwise engage manatees. The waters of the Homosassa River are 
currently regulated as an idle speed zone, and the State Park maintains 
a no-entry zone from a line approximately 61 meters (200 feet) upstream 
of the confluence of the spring run and the northeast fork of the 
river. The number of visitors has grown to the point where manatees are 
observed leaving the site and swimming downstream into colder waters 
(Gorzelany, Mote Marine Laboratory, pers. comm. 2001). The 
establishment of a manatee sanctuary at this location will provide 
wintering manatees with an undisturbed area free from harassment. The 
public will continue to have opportunities to interact with manatees 
outside of the proposed sanctuary.

Tampa Bay Manatee Sanctuaries and Refuges

    A significant number of manatees from the southwest Florida 
subpopulation rely on power plant discharges in the Tampa Bay area for 
warmth during the cold winter months (Florida Fish and Wildlife 
Conservation Commission, unpublished data). These sites include the 
Bartow Electric Generating Plant, and the Tampa Electric Company's Big 
Bend and Gannon electric generating stations. To prevent taking through 
mortality, injury, and harassment within the Tampa Bay region, we are 
designating a series of manatee sanctuaries and refuges at these warm 
water sites. The sanctuaries will minimize harassment within the warm 
water aggregation sites, specifically targeting adverse interactions 
between anglers and people wanting to interact with manatees. The 
designation of manatee refuges will reduce the likelihood of boat 
collisions with manatees in common areas used to enter and leave the 
warm water sites. Minimizing disturbance of manatees at these warm 
water sites during winter months is important to the well-being of 
these animals and consistent with efforts to recover the Florida 
manatee.

Bartow Electric Generating Plant Manatee Sanctuary

    We are establishing a seasonal manatee sanctuary, containing 
approximately 73.5 ha (181.5 acres), at the warm water discharge of the 
Bartow Electric Generating Plant in Tampa Bay, Pinellas County. This 
seasonal closure will prohibit all waterborne activity at this site 
from October 1 through March 31, inclusive. In addition, we are 
establishing a manatee refuge in the South Gandy Navigation Channel 
north of the site. We have designated this sanctuary based on observed 
manatee use patterns documented during cold weather periods (Hartman 
1979, Wright et al. 2002, Weigle et al. 2001) and on observations of 
takings known to occur at warm water sites (Tyson 1998, Wooding 1997).
    Warm water effluent from this plant attracts manatees during cold 
weather periods. The maximum manatee count at this site was 102 
manatees on February 25, 1999 (Florida Fish and Wildlife Conservation 
Commission, unpublished data). Similar to other warm water discharges, 
large numbers of fish are also attracted to the heated effluent at this 
site. As a result, both anglers and manatee enthusiasts are attracted 
to the site, leading to increased potential for cases of harm and 
harassment to manatees.
    Researchers have documented boat operators, anglers, and swimmers 
disrupting wintering manatees in outfall areas. Boat operators 
maneuvering within manatee aggregations, anglers hooking manatees, and 
people pursuing manatees, disturb and disperse these resting animals, 
at times forcing them into colder, life-threatening waters (Tyson 
1998). Lethal takes are also known to occur--manatees have died from 
entanglement with fishing line and are vulnerable to boat collisions, 
especially in high speed unregulated areas (Florida Fish and Wildlife 
Conservation Commission, unpubl. data).
    Pinellas County recently adopted, through a local ordinance, a no-
motor zone, in which only nonmotorized watercraft are permitted in the 
immediate area of the outflow. While we are encouraged by this initial 
action, we believe that this designation does not address all types of 
harassment at this important winter site. For example, anglers will 
continue to cast into manatee aggregations and people will continue to 
approach manatees. Establishing a sanctuary at this site will provide 
manatees with complete, undisturbed use of this warm water discharge 
site.

South Gandy Navigation Channel Manatee Refuge

    We are establishing a seasonal manatee refuge, containing 
approximately 30.3 ha (74.8 acres), in the South Gandy Navigation 
Channel north of the Bartow Electric Generating Plant in Pinellas 
County, with the purpose of regulating watercraft operation to slow 
speed from October 1 through March 31, inclusive.
    The likelihood of adverse manatee encounters with watercraft is 
increased in the vicinity of wintering sites, such as the discharge of 
the Bartow Electric Generating Plant, because of the greater 
concentration of animals within these confined areas. Regulating this 
area used by both manatees and boaters as a slow-speed zone rather than 
as a sanctuary will afford watercraft ingress and egress through the 
area with a minimum anticipated adverse impact to manatees.

Tampa Electric Company's Big Bend Manatee Sanctuary

    We are establishing a seasonal manatee sanctuary, containing 
approximately 30.8 ha (76.2 acres), at the warm water discharge of the 
Tampa Electric Company's Big Bend Electric Generating Station in Tampa 
Bay, Hillsborough County. This seasonal closure will prohibit all 
waterborne activity at this site from October 1 through March 31, 
inclusive. In addition, we are establishing a manatee refuge in the 
area south of this sanctuary (see Tampa Electric Company's Big Bend 
Manatee Refuge below). We have decided to establish this sanctuary 
based on observed manatee use patterns documented during cold weather 
periods (Wright et al. 2002, Weigle et al. 2001, Hartman 1979) and on 
observations of takings known to occur at this (Florida Fish and 
Wildlife Conservation Commission, unpubl. data.) and other warm water 
sites (Tyson 1998, Wooding 1997).
    Warm water effluent from this plant attracts manatees during cold 
weather periods. The maximum manatee count at this site was 316 
manatees on January 6, 2001 (Florida Fish and Wildlife Conservation 
Commission, unpublished data). Similar to other warm water discharges, 
large numbers of fish are also attracted to the heated effluent at

[[Page 59414]]

this site. As a result, both anglers and manatee enthusiasts are 
attracted to the site, leading to increased potential for cases of harm 
and harassment of manatees.
    Researchers have documented boat operators, anglers, and swimmers 
disrupting wintering manatees in outfall areas. Boat operators 
maneuvering within manatee aggregations, anglers hooking manatees, and 
people pursuing manatees, disturb and disperse these resting animals, 
at times forcing them into colder, life-threatening waters (Tyson 
1998). Lethal takes are also known to occur--manatees have died from 
entanglement with fishing line and are vulnerable to boat collisions, 
especially in high speed unregulated areas (Florida Fish and Wildlife 
Conservation Commission, unpubl. data).
    There is currently a seasonal no-entry zone in the immediate 
vicinity of the Big Bend discharge. The zone is too small, however, to 
prevent harassment of manatees by fishermen, who cast into the 
aggregation area. A sanctuary at this site will expand the existing 
protection area and should adequately protect manatees from harassing 
fishing activities during the winter months. We have selected this site 
based on manatee use patterns documented during the winter (Wright et 
al. 2002, Weigle et al. 2001, Hartman 1979, Florida Fish and Wildlife 
Conservation Commission, unpubl. data.).

Tampa Electric Company's Big Bend Manatee Refuge

    We are establishing a manatee refuge, encompassing approximately 
93.5 ha (231 acres), in the waters adjacent to and south of the manatee 
sanctuary at the Tampa Electric Company's Big Bend Electric Generating 
Station in Hillsborough County to provide watercraft ingress and egress 
to the lagoon and canals in North Apollo Beach. Watercraft activity 
within this refuge will be regulated to idle speed from October 1 
through March 31, inclusive.
    The likelihood of adverse manatee encounters with watercraft is 
increased in the vicinity of wintering sites, such as the warm water 
discharge of the Tampa Electric Company's Big Bend Electric Generating 
Station, because of the greater concentration of animals within these 
confined areas. Regulating this area as an idle-speed zone rather than 
as a sanctuary will afford watercraft ingress and egress through the 
area with a minimum anticipated adverse impact to manatees.

Port Sutton Manatee Sanctuary

    We are establishing a seasonal manatee sanctuary, encompassing 
approximately 1.1 ha (2.7 acres), at the warm water discharge of the 
Tampa Electric Company's Gannon Electric Generating Station in Tampa 
Bay, Hillsborough County. This seasonal closure will prohibit all 
waterborne activity at this site from October 1 through March 31, 
inclusive. We have decided to establish this sanctuary based on 
observed manatee use patterns documented during cold weather periods 
when the plant was discharging warm water (Wright et al. 2002, Weigle 
et al. 2001, Hartman 1979) and on observations of takings known to 
occur at other warm water sites (Tyson 1998, Wooding 1997).
    Warm water effluent from this plant has attracted manatees during 
cold weather periods. Between 25 and 100 manatees are known to use this 
site (Florida Fish and Wildlife Conservation Commission, unpublished 
data). Similar to other warm water discharges, large numbers of fish 
may be attracted to this heated effluent. As such, both anglers and 
manatee enthusiasts may be attracted to the site, leading to an 
increased potential for cases of harm and harassment to manatees.
    Researchers have documented boat operators, anglers, and swimmers 
to disrupting wintering manatees in outfall areas. Boat operators 
maneuvering within manatee aggregations, anglers hooking manatees, and 
people pursuing manatees, disturb and disperse these resting animals, 
at times forcing them into colder, life-threatening waters (Tyson 
1998). Lethal takes are also known to occur: manatees have died from 
entanglement with fishing line and are vulnerable to boat collisions, 
especially in high speed unregulated areas (Florida Fish and Wildlife 
Conservation Commission, unpubl. data).

Port Sutton Manatee Refuge

    We are designating the Port Sutton area surrounding the proposed 
manatee sanctuary at the Tampa Electric Company's Gannon Electric 
Generating Station, in Hillsborough County, as a manatee refuge. The 
refuge area includes approximately 39.2 ha (96.9 acres). Watercraft 
will be required to proceed at idle speed within this refuge from 
October 1 through March 31, inclusive.
    The likelihood of adverse manatee encounters with watercraft is 
increased in the vicinity of wintering sites, such as the warm water 
outfall of the Tampa Electric Company's Gannon Electric Generating 
Station, because of the greater concentration of animals within these 
confined areas. Regulating this area as an idle-speed zone rather than 
as a sanctuary will afford watercraft ingress and egress through the 
area with a minimum anticipated adverse impact to manatees.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this emergency rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
emergency rule clearly stated? (2) Does the emergency rule contain 
unnecessary technical language or jargon that interferes with the 
clarity? (3) Does the format of the emergency rule (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Is the description of the emergency rule in the 
``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? (5) What else could we do to make the 
emergency rule easier to understand?
    Send a copy of any comments that concern how we could make this 
emergency rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to the following address: 
[email protected].

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 four manatee sanctuaries (264.5 
acres) in Citrus, Pinellas, and Hillsborough counties and three manatee 
refuges (402.7 acres) in Pinellas and Hillsborough counties in the 
State of Florida. The public support for manatee protection is 
substantial in Florida. Using a contribution continuum method 
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

[[Page 59415]]

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 seven additional manatee 
protection areas in Florida. We are proposing to reduce the level of 
take of manatees by controlling human activity in these seven areas. 
Affected waterborne activities include, but are 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. Designated areas include four no-entry areas, two 
idle-speed areas, and one slow-speed area. In all seven areas, 
waterborne activities will be restricted on a seasonal basis. The 
economic effect of these designations will be measured by the number of 
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 includes 12,000 miles of rivers and streams and 3 
million acres of lakes and ponds; the designation of 264.5 acres of 
sanctuaries and 402.7 acres for refuges 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.
    For some watercraft users, the inconvenience and extra time 
required to cross slow- and idle-speed areas 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 943,611 registered boats, but only 
those boats and recreationists using the designated sites will 
potentially be affected. Because 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. 
Recreationists may be inconvenienced by having to travel to non-
designated areas. Currently, no data sources estimate the amount of 
recreational activity in and around the designated areas. The current 
designation of these sites will cause some inconvenience, but 
alternative sites within the proximity of the sites are available for 
all waterborne activities. 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 or similar protections are put in place in the future, we 
will consider removing those areas from Federal protection.
    c. This 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 public hearings and public notice and comment periods 
to determine activities that might be affected by the creation of these 
manatee protection areas. Based on the activities that we are aware of 
being conducted in these areas and the fact that some may be 
inconvenienced by the need to proceed at slower speeds or use alternate 
sites, 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 Citrus, Pinellas, and Hillsborough 
Counties. Table 1, below, depicts general economic characteristics, and 
Table 2 gives employment data. As can be seen in Table 1, the growth 
rate in per capita income is slower than the State average in Citrus 
County, but the rate of growth in total personal income is equal to or 
exceeds the State average except in Pinellas County, where it is 
slightly lower. Larger households account for the lower per capita 
income estimates in Citrus and Hillsborough Counties. The proportion of 
total industry earnings coming from the amusements and recreation 
sector ranges from 0.8 percent in Citrus and Pinellas Counties to 1.4 
percent in Hillsborough County. All of these counties had the service 
sector as the largest economic contributor followed by retail trade and 
the real estate sectors. Overall, the affected counties had only a 
small proportion of earnings coming 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 Three Affected Counties in Florida--1997
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                  Services
                                                                                                                                  industry
                                                                Per capita    10-year                   10-year       Total       earnings
                                                                 personal     rate of      Personal     rate of      industry       for      Percent  of
            Affected Florida counties              Employment     income       growth       income       growth      earnings    amusements     total
                                                                (dollars)    (percent)      ($000)     (percent)      ($000)        and
                                                                                                                                 recreation
                                                                                                                                   ($000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Citrus..........................................       35,663      $18,493          3.9  $2,060,1672          6.9     $793,347       $6,650          0.8
Pinellas........................................      506,946       28,367          4.9   24,770,929          5.5   13,876,518      114,826          0.8
Hillsborough....................................      644,694       23,719          5.2    1,558,783          6.6   18,847,236       67,676          1.4
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.


[[Page 59416]]


                                  Table 2.--Employment Characteristics of the Three Affected Counties in Florida--1997
                                               [includes sic codes 09, 44, 59, 79, services, and nec] \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of       Number of       Number of       Number of
                                                              Mid-March        Total      establishments  establishments  establishments  establishments
                 Affected Florida counties                    employment  establishments        (1-4            (5-9           (10-19       (20 and over
                                                                                            employees)      employees)      employees)      employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Citrus.....................................................        8,926          1,044             655             214              95              80
Pinellas...................................................      197,842         12,852           7,954           2,344           1,226           1,328
Hillsborough...............................................      232,128         12,363           7,316           2,261           1,308          1,478
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: http://govinfo.library.orst.edu/cgi-bin/reis-list.
\1\ sic09--Fishing, hunting, and trapping.
sic 44--Water transportation.
sic 59--Miscellaneous retail service divisions.
sic 79--amusement and recreation services non-classifiable establishments division.

    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.
    Since the bulk of the acreage proposed (402.7 acres) by this rule 
is for manatee refuges, which would only require a reduction in speed, 
we do not believe the minor inconvenience caused by going slower in 
designated areas will cause more than an insignificant economic effect. 
The inconvenience may cause some recreationists and charter boats to go 
to alternative sites, which may cause some loss of income to some small 
businesses. However, the inconvenience is small so we believe that this 
will not be a significant economic dislocation. For the four areas 
designated as sanctuaries (264.5 acres), the restriction on human 
activity from October 1 to March 31 may cause some recreationists and 
charter boats to go to alternative sites. However, three of the areas 
designated are in front of power plants, and the fourth (Blue Waters) 
is only 4.145 acres. The designated areas are relatively small and part 
of large water bodies having large areas with no restrictions on human 
activity. Recreationists and charter boats can pursue waterborne 
activities in close proximity to the manatee sanctuaries without 
entering the sanctuaries. For this reason, we believe that there will 
be an insignificant economic effect from the designation of the four 
areas as manatee sanctuaries. Without a significant change in 
recreationists' and charter boats' use patterns, there should be an 
equally insignificant change in business activity.

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 rule may cause some inconvenience to 
recreationists and charter boats, but this should not translate into 
any significant business reductions for the many small businesses in 
the potentially affected counties. Because the restrictions on 
recreational activity are believed to be no more than an inconvenience 
for recreationists and charter boats, 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. 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 and charter boats because of speed limits, 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 seven manatee protection areas are located over 
State- and privately-owned submerged bottoms. Any property owners in 
the vicinity will have navigational access and the opportunity to 
maintain 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

[[Page 59417]]

relationship between the Federal Government and the State, or on the 
distribution of power and responsibilities among the various levels of 
government. We coordinated with the State of Florida to the extent 
possible on the development of this rule.

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 regulation will not impose new record keeping or 
reporting requirements on State or local governments, individuals, and 
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), Executive Order 13175 and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a Government-to-Government basis. 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 seasonally avoid four areas (107.1 ha or 264.5 
acres) or proceed at slow or idle speeds along three small segments 
(163 ha or 402.7 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 Jim Valade (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 
record-keeping 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. Amend Sec.  17.108 as follows:
    a. Revise the introductory text of paragraph (a);
    b. Remove the Kings Bay map from the end of the section and 
reinsert it following paragraph (a)(7); and add a note to precede the 
map;
    c. Add paragraphs (a)(8) through (a)(11);
    d. Revise paragraph (b);
    e. Add paragraphs (c)(3) through (c)(5).
    The revised and added text reads as follows:


Sec.  17.108  List of designated manatee protection areas.

    (a) Manatee sanctuaries. The following areas are designated as 
manatee sanctuaries. For areas in paragraphs (a)(1) to (a)(7) of this 
section, all waterborne activities are prohibited during the period 
November 15 to March 31 of each year. For areas in paragraphs (a)(8) to 
(a)(11) of this section, all waterborne activities are prohibited 
during the period October 1 to March 31 of each year. The areas that 
will be posted as manatee sanctuaries are described as follows:
* * * * *
    (7) * * *

    Note: Map for paragraphs (a)(1)-(a)(7) follows:

* * * * *
    (8) That part of the Homosassa River, Homosassa, Citrus County, 
Florida, within Section 28, Township 19 South, Range 17 East, described 
as the headwaters of the Homosassa River (adjacent to the Homosassa 
Springs State Wildlife Park), including the main spring and spring run 
to the point where the run enters the northeast fork of the river along 
the southeastern shore; to be known as the Blue Waters Manatee 
Sanctuary, containing approximately 1.7 ha (4.1 acres). Map follows:
BILLING CODE 4310-55-P

[[Page 59418]]

[GRAPHIC] [TIFF OMITTED] TR20SE02.037

    (9) That part of Tampa Bay, St. Petersburg, Pinellas County, 
Florida, within Sections 16 and 21, Township 30 South, Range 17 East, 
described as the warm-water outflow of the Bartow Electric Generating 
Plant located on the

[[Page 59419]]

northern shore of Weedon Island, lying along a north-south axis line 
from the shoreline to, but not including, the South Gandy Navigation 
Channel on the western shore of Old Tampa Bay; to be known as the 
Bartow Electric Generating Plant Manatee Sanctuary, containing 
approximately 73.5 ha (181.5 acres). Map follows:
[GRAPHIC] [TIFF OMITTED] TR20SE02.038


[[Page 59420]]


    (10) That part of Tampa Bay, Tampa, Hillsborough County, Florida, 
within Sections 10 and 15, Township 31 South, Range 19 East, described 
as the waters in and around the warm-water outflow of the Tampa 
Electric Company Big Bend Electric Generating Station located west of 
Jackson Branch and including the Big Bend area of eastern Tampa Bay, to 
be known as the Tampa Electric Company Big Bend Manatee Sanctuary, 
containing approximately 30.8 ha (76.2 acres). Map follows:
[GRAPHIC] [TIFF OMITTED] TR20SE02.039


[[Page 59421]]


    (11) That part of Tampa Bay, Tampa, Hillsborough County, Florida, 
lying within Section 4, Township 30 South, Range 19 East, described as 
the warm-water outflow of the Tampa Electric Company Gannon Electric 
Generating Station, to be known as the Port Sutton Manatee Sanctuary, 
containing approximately 1.1 ha (2.7 acres). Map follows:
[GRAPHIC] [TIFF OMITTED] TR20SE02.040


[[Page 59422]]


    (b) Exceptions.
    (1) Exception for residents adjoining the areas described in 
paragraphs (a)(1) to (a)(7) of this section. Watercraft access to 
private residences, boat houses, and boat docks through these 
sanctuaries by the residents and their authorized guests is permitted. 
Any such authorized boating activity must be conducted by operating 
watercraft at idle speed/no wake. Residents' watercraft will be 
identified by the placement of a sticker provided by the Fish and 
Wildlife Service in a conspicuous location on each vessel. Use of the 
waters within the sanctuaries by watercraft will be only for the 
purpose of access to residences and the storage of such watercraft in 
waters adjacent to residences.
    (2) Exception for publicly and privately owned property adjoining 
the areas described in paragraphs (a)(8) to (a)(11) of this section. 
Watercraft access and property maintenance activities within 
sanctuaries by property owners, their employees, and designees are 
permitted. Any such authorized boating activity must be conducted by 
operating watercraft at idle speed. Watercraft will be identified by 
the placement of a sticker provided by the Fish and Wildlife Service in 
a conspicuous location on each boat or by other means. Maintenance 
activities include those actions necessary to maintain property and 
waterways, subject to any Federal, State, and local government 
permitting requirements.
    (c) * * *
* * * * *
    (3) The South Gandy Navigation Channel Manatee Refuge
    (i) The South Gandy Navigation Channel Manatee Refuge is described 
as that portion of the South Gandy Navigation Channel in Pinellas 
County, Florida, between channel marker ``1'' and the point of land 
southwest of channel marker ``5''; containing approximately 30.3 ha 
(74.8 acres).
    (ii) Watercraft are required to operate at slow speed from October 
1 through March 31 of each year, inclusive. Watercraft are prohibited 
from operating at speeds in excess of slow speed from October 1 through 
March 31 of each year, inclusive.
    (iii) Map of South Gandy Navigation Channel Manatee Refuge follows:

[[Page 59423]]

[GRAPHIC] [TIFF OMITTED] TR20SE02.041

    (4) The Tampa Electric Company's Big Bend Manatee Refuge
    (i) The Tampa Electric Company's Big Bend Manatee Refuge is 
described as the entrance channel and those waters south of the manatee 
sanctuary at the Tampa Electric Company's Big Bend Electric Generating 
Station within Hillsborough County, Florida; containing approximately 
93.5 ha (231 acres).

[[Page 59424]]

    (ii) Watercraft are required to operate at idle speed from October 
1 through March 31, inclusive. Watercraft are prohibited from operating 
at speeds greater than idle speed from October 1 through March 31, 
inclusive.
    (iii) Map of the Tampa Electric Company's Big Bend Manatee Refuge 
follows:
[GRAPHIC] [TIFF OMITTED] TR20SE02.042


[[Page 59425]]


    (5) The Port Sutton Manatee Refuge
    (i) The Port Sutton Manatee Refuge is described as those waters 
surrounding the Port Sutton Manatee Sanctuary, including all waters 
within Port Sutton, Hillsborough County, Florida; containing 
approximately 39.2 ha (96.9 acres).
    (ii) Watercraft are required to operate at idle speed from October 
1 through March 31, inclusive. Watercraft are prohibited from operating 
at speeds greater than idle speed from October 1 through March 31, 
inclusive.
    (iii) Map of Port Sutton Manatee Refuge follows:
    [GRAPHIC] [TIFF OMITTED] TR20SE02.043
    


[[Page 59426]]


    Dated: September 12, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-23820 Filed 9-17-02; 3:59 pm]
BILLING CODE 4310-55-C