[Federal Register Volume 67, Number 217 (Friday, November 8, 2002)]
[Rules and Regulations]
[Pages 68450-68489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28278]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 67, No. 217 / Friday, November 8, 2002 / 
Rules and Regulations  

[[Page 68450]]


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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; Final Rule To 
Establish Thirteen Additional 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 action to 
establish 13 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), to further recovery of the Florida manatee (Trichechus manatus 
latirostris) by reducing the number of takings. 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 designating manatee protection areas in 
Brevard, Charlotte, Citrus, De Soto, Hillsborough, Lee, Pinellas, and 
Sarasota Counties. Four of the sites are manatee sanctuaries, where all 
waterborne activities are prohibited throughout all or part of the 
year, with exceptions for adjoining property owners. The remaining nine 
sites are manatee refuges, in which certain waterborne activities are 
prohibited or regulated for all or some portion of the year. The 
previously proposed and emergency-designated South Gandy Navigation 
Channel Manatee Refuge in Pinellas County has been withdrawn. We also 
announce the availability of an environmental assessment for this 
action.

DATES: This rule is effective November 8, 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, or Jim 
Valade (see ADDRESSES section), telephone (904) 232-2580; or visit our 
Web site 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 
species is further protected as a depleted stock under the MMPA (16 
U.S.C. 1361-1407). Florida manatees, a subspecies of the West Indian 
manatee (Domning and Hayek, 1986), live 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 Florida 
waters 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 industrial discharges and natural springs for warmth. In warmer 
months, they expand their range and occasionally are seen as far north 
as Rhode Island on the Atlantic Coast and as far west as Texas on the 
Gulf Coast.

Status of the Florida Manatee

    Long-term studies, as described below, suggest four relatively 
distinct regional populations of manatees in Florida--(a) The Northwest 
Region, consisting of the counties along the Gulf of Mexico from 
Escambia County east and south to Hernando County, Lafayette and 
Gilchrist Counties, and Marion County adjacent to the Withlacoochee 
River; (b) the Upper St. Johns River Region, consisting of Putnam 
County from Palatka south; Volusia, Flagler, and Marion Counties 
adjacent to the St. Johns River or its tributaries; and Lake and 
Seminole Counties; (c) the Atlantic Region, consisting of counties 
along the Atlantic coast from Nassau County south to Miami-Dade County; 
the portion of Monroe County adjacent to the Florida Bay and the 
Florida Keys; Okeechobee County; and counties along the lower portion 
of the St. Johns River north of Palatka, which includes Putnam, St. 
Johns, Clay and Duval Counties; and (d) the Southwest Region, 
consisting of the counties along the Gulf of Mexico from Pasco County 
south to Whitewater Bay in Monroe County and DeSoto, Glades, and Hendry 
Counties.
    Despite considerable effort in the early 1980s, scientists have 
been unable to develop a useful means of estimating or monitoring 
trends in the size of the overall manatee population in the 
southeastern United States (O'Shea 1988, O'Shea et al. 1992, Lefebvre 
et al. 1995). Even though many manatees aggregate at warm-water refuges 
in winter and most if not all such refuges are known, direct counting 
methods (i.e., by aerial and ground surveys) have been unable to 
account for uncertainty in the number of animals that may be away from 
these refuges at any given time, the number of animals which are not 
seen because of turbid water, and other factors. The use of mark-
resighting techniques to estimate manatee population size based on 
known animals in the manatee photo-identification database also has 
been impractical, as the proportion of unmarked manatees cannot be 
estimated.
    The only data on population size have been uncalibrated indices 
based on maximum counts of animals at winter refuges made within one or 
two days of each other. Based on such information in the late 1980s, 
the total number of manatees throughout Florida was known to be at 
least 1,200 animals (Service 2001). Because aerial and ground counts at 
winter refuges are highly variable depending on the weather, water 
clarity, manatee behavior, and other factors (Packard et al. 1985, 
Lefebvre et al. 1995), interpretation of analyses for short-term trends 
is difficult (Packard and Mulholland 1983, Garrott et al. 1994). Strip-
transect aerial surveys are used routinely to estimate dugong (Dugong 
dugon) population size and trends (Service 2001); however, they are 
difficult to adapt to manatees because of the species' much more linear 
(i.e., coastal and riverine) distribution. This survey method was 
tested in the Banana River, Brevard County, and recommended for use in 
that area to monitor manatee population trends (Miller et al. 1998). 
This approach may also have utility in the Ten Thousand Islands-
Everglades area, where manatee population size and distribution is 
poorly understood.
    Beginning in 1991, the former Florida Department of Natural 
Resources initiated a statewide aerial survey program to count manatees 
in potential winter habitat during periods of severe cold weather 
(Ackerman 1995). These surveys are much more comprehensive than those 
used to estimate a minimum population during the 1980s. The highest 
two-day minimum count of manatees from these winter synoptic aerial 
surveys and ground counts is 3,276 manatees in January 2001; the 
highest count on the east coast of Florida is 1,756 and the highest on 
the

[[Page 68451]]

west coast is 1,520, both in 2001. However, the manatee counts of March 
2002, when weather conditions were less favorable, resulted in a total 
count of 1,796. The Florida Fish and Wildlife Conservation Commission 
(FWCC) stated in their March 6, 2002, press release that the ``low 
count merely reflects the poor visibility during the count, not a 
dramatic change in the manatee population.'' Due to the nearly ideal 
conditions for the 2001 synoptic survey, the results of that survey are 
considered the best available estimate of the current minimum 
population size (i.e., 3,276).
    It remains unknown what proportions of the total manatee population 
were counted in these surveys. No statewide surveys were done during 
the winters of 1992-93 or 1993-94 because of the lack of strong mid-
winter cold fronts. These uncorrected counts do not provide a basis for 
assessing population trends. However, trend analyses of temperature-
adjusted aerial survey counts show promise for providing insight to 
general patterns of population growth in some regions (Garrott et al. 
1994, 1995; Craig et al. 1997; Eberhardt et al. 1999).
    It has been possible to monitor the number of manatees using the 
Blue Spring (Volusia County) and Crystal River (Citrus County) warm-
water refuges. At Blue Spring, with its unique combination of clear 
water and a confined spring area, it has been possible to count the 
number of resident animals by identifying individual manatees from scar 
patterns. The data indicate that this group of animals has increased 
steadily since the early 1970s when it was first studied. During the 
1970s the number of manatees using the spring increased from 11 to 25 
(Bengtson 1981). In the mid-1980s about 50 manatees used the spring 
(Service 2001), and by the winter of 1999-2000, the number had 
increased to 147 (Hartley 2001).
    On the northwest coast of Florida, the clear, shallow waters of 
Kings Bay (Citrus County) have made it possible to monitor the number 
of manatees using the warm-water refuge in Kings Bay at the head of the 
Crystal River. Large aggregations of manatees apparently did not exist 
there until recent times (Service 2001). The first careful counts were 
made in the late 1960s. Since then manatee numbers have increased 
significantly. In 1967 to 1968, Hartman (1979) counted 38 animals in 
Kings Bay. By 1981 to 1982, the maximum winter count had increased to 
114 manatees (Powell and Rathbun 1984), and in December 1997, the 
maximum count was 284 (Buckingham et al. 1999). Both births and 
immigration of animals from other areas have contributed to the 
increases in manatee numbers at Crystal River and Blue Spring. Three 
manatee sanctuaries (areas in which waterborne activities are 
restricted) in Kings Bay were established in 1980; an additional three 
were added in 1994, and a seventh in 1998. The increases in counts at 
Blue Spring and Crystal River are accompanied by estimates of adult 
survival and population growth that are higher than those determined 
for the Atlantic coast (Eberhardt and O'Shea 1995, Langtimm et al. 
1998, Eberhardt et al. 1999).
    While aircraft synoptic surveys provide a ``best estimate'' of the 
minimum manatee population size, there are no estimates or confidence 
intervals for the size of the Florida manatee population that have been 
derived by reliable, statistically based, population-estimation 
techniques. A census is a complete count of individuals within a 
specified area and time period. A survey, in contrast, is an incomplete 
count. With the exception of a few places where manatees may aggregate 
in clear, shallow water, not all manatees can be seen from aircraft 
because of water turbidity, depth, surface conditions, variable times 
spent submerged, and other considerations. Thus, results obtained 
during typical manatee synoptic surveys yield unadjusted partial 
counts. While these results are of value in providing information on 
where manatees occur, likely relative abundance in various areas, and 
seasonal shifts in manatee abundance, they do not provide good 
population estimates, nor can they reliably measure trends in the 
manatee population. Consequently, the Florida Manatee Recovery Plan 
(Third Version) concludes that ``Despite considerable effort in the 
early 1980s, scientists have been unable to develop a useful means of 
estimating or monitoring trends in size of the overall manatee 
populations in the southeastern United States'' (Service 2001).
    Population models employ mathematical relationships based on 
survival and reproduction rates to estimate population growth and 
trends in growth. A deterministic model (a model in which there are no 
random events) using classical mathematical approaches and various 
computational procedures with data on reproduction and survival of 
living, identifiable manatees suggests a maximum population growth rate 
of about 7 percent per year, excluding emigration or immigration 
(Eberhardt and O'Shea 1995). This maximum was based on studies 
conducted between the late 1970s and early 1990s in the well protected 
winter aggregation area at Crystal River and did not require estimates 
of population size. The analysis showed that the chief factor affecting 
the potential for population growth is survival of adults.
    Estimated adult survival in the Atlantic Region (a larger region 
with less protection) has suggested a slower rate or no population 
growth over a similar period. This modeling shows the value of using 
survival and reproduction data obtained from photo-identification 
studies of living manatees to compute population growth rates with 
confidence intervals, providing information which can be used to infer 
long-term trends in the absence of reliable population size estimates. 
However, collection of similar data has been initiated only recently 
for other areas of Florida (notably from Tampa Bay to the 
Caloosahatchee River beginning in the mid-1990s), and none is available 
over much of the remaining areas used by manatees in southwestern 
Florida.
    A population viability analysis (PVA) (a model in which random 
events, such as red tide and extremely cold winters, are incorporated) 
was carried out for manatees based on age-specific mortality rates 
estimated from the age distribution of manatees found dead throughout 
Florida from 1979 through 1992 (Marmontel et al. 1997). This method of 
estimating survival relies on certain assumptions that were not fully 
testable; yet, results again point out the importance of adult survival 
to population persistence.
    Given population sizes that may reflect current abundance, the PVA 
showed that if adult mortality as estimated for the study period were 
reduced by a modest amount (for example, from 11 percent down to 9 
percent), the Florida manatee population would likely remain viable for 
many years. However, the PVA also showed that slight increases in adult 
mortality would result in extinction of manatees over the long term.
    The above review demonstrates that the basis for statewide 
population size ``estimates'' of any kind is scientifically weak for 
estimating population trends in manatees. The weight of scientific 
evidence suggests that the potential for population increases over the 
last 2 decades is strong for two protected aggregation areas. New 
population analyses, based on more recent (since 1992) information, are 
not yet available in the peer-reviewed literature. These analyses will 
be fundamental to management decisions that are more relevant to the 
contemporary situation.

[[Page 68452]]

    In 2001, the Manatee Population Status Working Group (MPSWG) 
provided a statement summarizing what they believed to be the status of 
the Florida manatee at that time (Wildlife Trust 2001). The MPSWG 
stated that for the Northwest and Upper St. Johns River regions, 
available evidence indicated that there had been a steady increase in 
animals over the last 25 years. Such growth was consistent with the 
conditions of these regions--low numbers of human-related deaths, high 
estimates of adult survival, and good habitat. The statement was less 
optimistic for the Atlantic Region due to an adult survival rate that 
was lower than the rate necessary to sustain population growth. The 
MPSWG believed that this region had likely been growing slowly in the 
1980s but may then have leveled off or even possibly declined. They 
considered the status of the Atlantic Region to be ``too close to 
call.'' Such finding was consistent with high levels of human-related 
and, in some years, cold-related deaths in this region. Regarding the 
Southwest Region, the MPSWG acknowledged that further data collection 
and analysis would be necessary to provide an assessment of the 
manatee's status in this region. Preliminary estimates of adult 
survival available to the MPSWG at that time indicated that the 
Southwest Region was similar to the Atlantic Region and ``substantially 
lower than [the adult survival estimates] for the Northwest and Upper 
St. Johns Regions.'' The Southwest Region was cited as having had high 
levels of watercraft-related deaths and injuries and natural mortality 
events (i.e., red tide and severe cold).
    Recent information suggests that the overall manatee population has 
grown since the species was listed in 1967 (50 CFR 17.11). Based on 
data provided at the April 2002 Manatee Population Ecology and 
Management Workshop, we believe that the Northwest and Upper St. Johns 
River regions are doing well and are approaching demographic benchmarks 
(also referred to as population benchmarks) established in the Florida 
Manatee Recovery Plan for reclassification to threatened. We also 
believe that the Atlantic Region is close to meeting the downlisting 
benchmark for adult survival, at a minimum, and is close to meeting or 
exceeding other demographic criteria. We are less optimistic, however, 
regarding the Southwest Region. Although data are still insufficient or 
lacking to compare the Southwest Region's status to the downlisting/
delisting criteria, preliminary data for adult survival indicate that 
this Region is below the benchmarks established in the recovery plan.
    Although we are optimistic about the potential for recovery in 
three out of the four regions, it is important to clarify that in order 
to downlist or delist the manatee pursuant to the ESA, all four regions 
must simultaneously meet the appropriate criteria as described in the 
Florida Manatee Recovery Plan (Service 2001). Additionally, either 
action would be based on a status assessment for the species throughout 
its range (United States and Carribean) that will consider the factors, 
as described in section 4(a)(1) of the ESA, that determine whether any 
species is categorized as endangered or threatened.
    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 must be reduced or eliminated such that 
the species no longer fits the definitions of threatened or endangered. 
While suggestions 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, and habitat 
alteration, have been reduced or eliminated to the extent that the 
Florida manatee may be reclassified from endangered to threatened 
status. Pursuant to our mission, we continue to assess this information 
with the goal of meeting our manatee recovery objectives.

Threats to the Species

    Human activities, and 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 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 
[section 101(a)] 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 human population of Florida has grown by 124 
percent since 1970, from 6.8 million to 15.2 million residents (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 waterways. In 2001, 943,611 vessels were 
registered in the State of Florida (FWCC 2002). 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.
    Increases in the human population and the concomitant increase in 
human activities in manatee habitat compound the effect of such 
activities on manatees. Human activities in manatee habitat include 
direct and indirect effects. Direct impacts include injuries and deaths 
from watercraft collisions, deaths

[[Page 68453]]

from water control structure operations, lethal and sublethal 
entanglements with commercial and recreational fishing gear, and 
alterations of behavior due to harassment. Indirect effects include 
habitat alteration and destruction, and include such activities as the 
creation of artificial warm water refuges, decreases in the quantity 
and quality of warm water in natural spring areas, changes in water 
quality in various parts of the State, the introduction of marine 
debris, and other, more general disturbances.
    Manatee mortality has continued to climb steadily. Average annual 
total mortality in the 1990s (227.9) was nearly twice that of the 1980s 
(118.2). In 2001, a total of 336 manatee deaths were documented. Total 
deaths over the past 5 years are about two and a half times greater 
than they were in the first half of the 1980s. Although a large part of 
this increase may be due to an increase in manatee abundance, rapid 
growth in human activities and development may also be significant 
factors. Over the past 5 years, human-related manatee mortality has 
accounted for 33 percent of all manatee deaths, with watercraft-related 
deaths accounting for nearly 27 percent. These rates are about 5 to 6 
percent higher than the early 1980s, when about 28 percent of all 
deaths were human-related and 21 percent were due to watercraft (Marine 
Mammal Commission Annual Report to Congress 2002).
    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 (Service 2002). 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 1,050 manatees (from a 
total carcass count of 4,240) are confirmed victims of collisions with 
watercraft (1978 to 2001). This number may underestimate 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 25 percent 
of all manatee mortalities since 1978. Approximately 75 percent of all 
watercraft-related manatee mortality has taken place in 11 Florida 
counties (Brevard, Lee, Collier, Duval, Volusia, Broward, Palm Beach, 
Charlotte, Hillsborough, Citrus, and Sarasota) (Florida Marine Research 
Institute Manatee Mortality Database 2002). The last 5 years have been 
record years for the number of watercraft-related mortalities (Marine 
Mammal Commission Annual Report to Congress 2002).
    The second largest cause of human-related manatee mortality is 
entrapment in water control structures and navigation locks (Florida 
Marine Research Institute Manatee Mortality Database 2002). 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 1978 and 2001, or 
approximately 4 percent. 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. We have been 
working, through an interagency task force, with various Federal and 
State agencies to retrofit these structures with reversing mechanisms 
that prevent manatee crushings.
    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 115 manatee deaths since 1978, an 
average of more than 4 deaths per year. As with watercraft-related 
mortalities, these deaths also appear to be increasing, with 40 of 
these deaths occurring between 1997 and 2001. This is an average of 8 
deaths per year over the last 5 years attributable to this cause.
    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 away 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 (Tyson 1998). 
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 (USFWS unpublished data). 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 (Florida Marine Research Institute Manatee Mortality 
Database 2002).

[[Page 68454]]

    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 our manatee rescue, 
rehabilitation, and release 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 have been rescued, including 50 from monofilament 
entanglement and ingestion (Service, unpubl. data). In addition to 
these rescues, at least 14 deaths have been attributed to monofilament 
fishing line and others are suspected (Florida Marine Research 
Institute Manatee Mortality Database 2002).
    Boats operating within and adjacent to warm water aggregations of 
manatees pose a particularly serious threat to wintering manatees, 
since manatees are often killed or injured as a result of collisions 
with watercraft. The likelihood of adverse manatee encounters with 
watercraft increases in the vicinity of and within unprotected 
wintering sites because of the greater concentration of manatees and 
manatee activity in these areas. In 2001, at least 25 percent (82 of 
325) of known manatee deaths were caused by watercraft, as was 
discussed above. 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 in the U.S. 
Geological Survey's (USGS) 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 FWCC'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 Marine Research 
Institute Manatee Mortality Database 2002). 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 
Marine Research Institute Manatee Mortality Database 2002). 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, 
USGS Contractor, pers. comm. 2001).

Manatee Protection Areas

    To minimize disturbance to wintering manatees at both industrial 
and natural warm water sites during this critical time of year, we and 
the State of Florida have implemented a series of Federal sanctuaries 
and State protection areas at and near these sites. To date, the 
majority of known warm water sites used by manatees in Florida have 
been protected. Manatee protection areas have also been established at 
other sites throughout coastal Florida where conflicts between boats 
and manatees have been well documented and where manatees are known to 
frequently occur. We are providing additional protection or enhancing 
existing protection areas by establishing additional manatee 
sanctuaries and/or manatee refuges at thirteen locations in Florida.
    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 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.

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 ESA, MMPA, National 
Environmental Policy Act (NEPA), and the Administrative Procedure Act. 
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:
    [sbull] 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 FWCC 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 rulemaking 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.

[[Page 68455]]

On January 7, 2002, we published a final rule designating two sites in 
Brevard County, the Barge Canal and Sykes Creek, as Federal manatee 
refuges (67 FR 680).
    [sbull] 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.
    [sbull] 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 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 
proposed rules as appropriate.
    [sbull] 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.
    [sbull] 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 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).
    [sbull] Provide written progress reports on the status of tasks 
agreed upon in the Settlement Agreement every 6 months. The first 
report was provided to the parties on July 5, 2001 and subsequent 
reports have been provided accordingly.
    [sbull] 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.
    [sbull] 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.
    [sbull] On July 9, 2002, the United States District Court for the 
District of Columbia ruled that the Federal Government violated the 
Settlement Agreement by failing to designate a sufficient number of 
refuges and sanctuaries throughout peninsular Florida. The Court ruled 
that we must complete the rulemaking with respect to the 16 proposed 
areas contained in the August 10, 2001, proposal. On July 31, 2002, the 
Court subsequently determined that this must be completed by November 
1, 2002. The Court also determined that the sites in this final rule, 
in conjunction with the two sites established previously, ``would 
satisfy the general distribution requirement'' of the Settlement 
Agreement. On September 20, 2002, we published an emergency rule 
designating seven sites as manatee refuges and sanctuaries on Florida's 
west coast for a period of 120 days (67 FR 59408).

Coordination With State Actions

    An extensive 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 
recent evaluation was to identify gaps in the existing network and to 
establish 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 this rule were selected based on the 
criteria described below (see ``Site Selection Process and Criteria'' 
section), prior to the disclosure of terms of the proposed settlement 
in the State case, Save the Manatee v. Egbert, Case No. 90-00-400CIV17-
WS (N.D.Fla), entered on November 7, 2001. That settlement contains a 
list of sites that the FWCC has and 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

[[Page 68456]]

State's list of sites is more expansive than the list in our rule does 
not indicate a determination on our part that sites on the State's 
list, and not considered by us, do not warrant protection, 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 FWCC, 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 previously described 
Settlement Agreement, 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 FWCC made a final decision regarding sites they intend to 
evaluate. 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. However, eventually, we were 
required to proceed with publication in advance of finalization of the 
State's settlement agreement. Therefore, there are overlaps between our 
rule and State actions.
    We strongly believe that the State should have leadership in 
establishing additional manatee protection areas. The State has taken a 
leading role in this initiative. Pursuant to a meeting of the Florida 
Fish and Wildlife Conservation Commissioners on September 12, 2002, the 
State established a manatee protection area at Blue Waters and 
described other sites to be designated as protection areas. Local 
governments have also enacted protective measures at some of these 
sites. We, however, must also meet our settlement obligations. In the 
future, if the State or counties implement measures at these sites 
that, in our view, provide comparable protection for manatees, we will 
consider withdrawing or modifying established designations through the 
rulemaking process. In addition to acknowledging State and county roles 
in this process and our legal obligations, we recognize the importance 
of their actions and the role that they play in manatee recovery. These 
actions are a priority for us and we will continue to promote these and 
other actions to fulfill our recovery responsibilities. In furtherance 
of this, we are publishing a Federal Register notice seeking public 
input on additional manatee protection measures. The public's input 
will be used to help determine the extent of additional protections 
necessary for manatee recovery.

Site Selection Process and Criteria

    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 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.
    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 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.
    We selected sites for inclusion in this 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 or similar sites due to waterborne 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 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 manatee 
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 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, where we felt we must act in addition, we have made 
every effort to make our designations consistent with the existing 
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 areas designated in this 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,

[[Page 68457]]

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 of these 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 concerns regarding potential economic 
effects and inconvenience to boaters resulting from the action, and the 
adequacy of current State conservation actions to protect the manatee. 
We received comments from the State of Florida. The remaining comments 
were from individuals or representatives of organizations or groups. 
The State supported the proposed action. On January 7, 2002, we 
published a final rule that established two of the 16 proposed areas as 
manatee protection areas located within the water bodies commonly known 
as the Barge Canal and Sykes Creek, in Brevard County (67 FR 680). On 
September 20, 2002, we published an emergency rule designating four of 
the remaining areas proposed in August, 2001, as manatee sanctuaries 
and three as manatee refuges in Citrus, Pinellas, and Hillsborough 
Counties for a period of 120 days (67 FR 59408).
    The September 20, 2002, emergency rule stated that the emergency 
rule would remain in effect through January 20, 2003. However, this 
final rule replaces the emergency rule. Therefore, the manatee 
protection areas set forth in the September 20, 2002, rule are no 
longer in effect. From the emergency rule to this final rule, we have 
implemented changes, both in the sizes of many of the protection areas 
and in the timeframes for restrictions. Details of these changes are 
described later in this document in a section called ``Summary of 
Changes From the Proposed Rule.''

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 in ``Areas Designated 
as Manatee Sanctuaries and Refuges,'' we need to establish the manatee 
protection areas in and adjacent to the warm water sites prior to the 
time when manatees will be seeking warmer waters for the winter and 
need to ensure that manatees will be protected from waterborne 
activities at non-winter sites. 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 13 sites is 
imminent, we believe good cause exists to make this rule effective upon 
publication. In a proposed rule of August 10, 2001 (66 FR 42318), we 
solicited public comment on the 13 manatee protection areas established 
by this rule as required by 5 U.S.C. 553(c). The 30-day delay would be 
contrary to the public interest because of the imminent threat to 
manatees and the need to provide immediate protection.

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 
final 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. During the restricted period (either seasonal or year-
round) 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.
Summary of Comments and Recommendations
    Written comments and oral statements presented at the public 
hearings and received during the comment period are addressed in the 
following summary. Comments of a similar nature or point are grouped 
into a number of general issues. Comments and our response to each are 
discussed below.
    Comment 1: The FWCC 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: The 13 manatee refuges and sanctuaries covered in this 
rulemaking were originally proposed in our August 10, 2001, proposed 
rule. While these sites are important for manatee conservation and meet 
the criteria for Federal protection, when we established the Barge 
Canal and Sykes Creek manatee refuges on January 7, 2002 (67 FR 680), 
we believed the remaining sites were of lesser urgency. We were also 
not convinced at the time of final rule publication that these 
protection measures were necessary for recovery of the species. 
Therefore, in our January 7, 2002, final rule, we postponed decision-
making on these

[[Page 68458]]

sites until December 2002 and stated that we would consider withdrawing 
our proposals should State or local government implement suitable 
protection.
    However, on July 9, 2002, the Court ruled that this approach did 
not comply with our Settlement Agreement requiring that we designate 
additional refuges and sanctuaries throughout peninsular Florida within 
a certain time frame. On July 31, 2002, the Court further ordered us to 
complete our rulemaking process on these sites by November 1, 2002.
    Subsequent to our August 2001 proposal, State and local governments 
have adopted and, in some cases, implemented manatee protection 
measures at several of the manatee refuges and sanctuaries established 
in this rule. In some cases the State or local measures are more 
restrictive than our original proposals, while in others they are less 
restrictive. Based upon new information resulting from these activities 
and comments received, we have made several modifications to our 
original proposals in order to ensure, when possible, that Federal, 
State, and local measures are consistent and clear to the public and 
can be consistently enforced by all entities (see ``Summary of Changes 
from the Proposed Rule'' section). We do not believe that any of these 
changes will result in reduced manatee protection from our original 
proposal. In cases where we have increased our restrictions beyond 
those originally proposed, we have concluded that this action will have 
negligible effects on the regulated public beyond the actions already 
promulgated by State or local governments.
    In the future, we may withdraw or revise our designations if, in 
our view, State and local government(s) provide a comparable level of 
protection. Since it is not currently possible to measure the precise 
level of effectiveness of any particular manatee protection program, we 
must rely upon the best professional judgment of our biologists to 
determine whether alternative State or local measures are comparable to 
ours. We acknowledge that there may be more than one way to provide 
adequate manatee protection at any given location. In making our 
determination, we will consider factors such as areal extent of the 
measures, duration of measures, and types of restrictions (e.g., no 
entry, motorboat prohibited, idle speed, slow speed, etc.). Our final 
determination will be based on our judgment of whether a State or local 
management plan provides comparable protection by reducing or 
eliminating take to the same or greater extent as our actions.
    Comment 2: The FWCC noted that appropriate posting of designated 
manatee protection areas is a critical element in the success of 
manatee protection zones, and recommended that we schedule meetings 
with the FWCC, Navigation Districts, local governments, and others to 
develop a clear delineation of responsibilities for posting signs for 
federally designated areas.
    Response: We agree that appropriate signage is critical to the safe 
and effective implementation of manatee protection areas. We will 
continue to involve the FWCC, Inland Navigation Districts, local 
governments, and the U.S. Coast Guard, as appropriate, in the 
development of sign plans for these Federal manatee protection areas. 
By coordinating with these agencies, we will minimize any discrepancies 
and/or disparities between signs, sign placement, and legal 
authorities. These actions will minimize inconsistencies and confusion 
amongst the boating public.
    Comment 3: The FWCC 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. FWCC 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 FWCC and other enforcement entities 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. The ability to adequately post and enforce designated 
sites was a factor in our site selection process.
    Comment 4: The FWCC noted that we delayed action on 14 sites 
identified in the proposed rule until December 2002 to give State and 
local governments the opportunity to enact comparable protective 
measures. The FWCC 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: While we had originally delayed action on these sites 
until December 2002, to give other agencies an opportunity to enact 
comparable measures, we are promulgating a rule at this time to ensure 
compliance with the Court's orders of July 9, 2002, and July 31, 2002, 
and to ensure compliance with the terms of the Settlement Agreement. 
Included in our rule are measures to protect Little Sarasota Bay and 
Shell Island and to designate protection at sites in Tampa Bay.
    Comment 5: 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 
consideration 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 throughout 
peninsular Florida, we considered the needs of the species on an 
ecosystem level in order to address life requirements of the manatee 
and to progress toward recovery of the species. 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

[[Page 68459]]

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. 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) may warrant further consideration, particularly 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 
appropriate and/or feasible than the actions identified in our August 
10, 2001, proposed rule.
    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 are publishing 
a Federal Register notice seeking public input on additional manatee 
protection needs. This information will be used to help determine the 
extent of additional protection needed for recovery.
    Comment 6: In recommending action at the sites identified in 
Comment 5, some commenters noted that several of the sites identified 
in our proposed rule were under consideration for designation by the 
FWCC 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: Several of the sites in our proposed rule overlapped with 
recent State or local actions (see our response to ``Comment 1''). We 
first became aware of this overlap when the Plaintiffs in the State 
lawsuit made the terms of their draft Settlement Agreement public. Due 
to our inability to discuss pending legal actions with the FWCC, and 
our need to meet our settlement obligations, we published the proposed 
rule. We are publishing this final rule at this time because these 
actions will reduce the take of manatees and are necessary to fulfill 
our settlement obligations.
    Comment 7: One commenter noted that the sites identified in our 
proposed rule differed 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 proposed for designation as Federal manatee 
protection areas were in some cases different from the waterbodies we 
identified as ``areas with inadequate protection'' for the purposes of 
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 Part 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 or similar sites 
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 because many areas present manatee 
protection problems due to circumstances that are difficult or 
impossible to correct within our manatee protection area authority and 
in terms of personnel and budget.
    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 
an indirect effect of the authorization of a boat access facility. 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 
are inadequate in areas with chronic watercraft-related take, because 
of a lack of adequate law enforcement, or because of issues peculiar to 
the waterbody such that incidental take of manatees is inevitable 
regardless of protective measures implemented.
    As such, the standard for identifying a waterbody as an ``area with 
inadequate protection'' is different than that for establishing a 
manatee protection area. This is why several areas proposed as manatee 
protection areas are not also ``areas with inadequate protection.''
    Comment 8: 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 when we 
designed these manatee protection areas. While human safety is the 
responsibility of all vessel operators, we made sure that zone 
designations were consistent with accepted safe-designation practices 
and will ensure that all sign plans and signs meet Federal and State 
signage requirements to eliminate human safety concerns. Furthermore, 
most manatee refuge measures described in this final rule require 
vessels to proceed at slow speed and, as such, should enhance boater 
safety in these areas.
    Comment 9: 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 part 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 10: 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 section 4(a) of the ESA are ``(D) the inadequacy of existing 
regulatory mechanisms; and (E) other natural or manmade factors 
affecting its continued existence.'' (16 U.S.C. 1533(a)) There has been 
no confirmation

[[Page 68460]]

that significant threats to the species, including human-related 
mortality, injury, and harassment, and habitat alteration, have been 
reduced or eliminated. Furthermore, the MMPA sets a general moratorium 
for the taking of marine mammals. Regardless of the size or status of 
the manatee population, all takings are prohibited unless authorized 
under the MMPA.
    Minimizing, to the extent practical, the taking of manatees as a 
result of watercraft collisions is a high priority in manatee recovery 
and management programs. Currently, the areas addressed in this rule 
have a significant potential for ``take'' and/or are characterized by 
limited current protective regulations.
    Comment 11: 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 
important to 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 12: 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, including designating manatee refuges and sanctuaries. 
Furthermore, we must complete this rulemaking process, pursuant to our 
settlement agreement. This in no way diminishes the important role that 
State, local, and other Federal 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 we determined that Federal action can 
effectively address the needs in the particular area.
    Comment 13: 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 
very similar to 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. 
Ten of the sites included in this final rule are located in direct 
proximity to areas regulated by the State. The use of a similar 
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 available for 
both the operator and the manatee to detect one another and take action 
to avoid collision.
    Comment 14: 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. Through the regulation promulgation process, including 
public hearings and comment periods, we sought comments and information 
on activities known to occur at these sites. Based on these comments 
and sources of information, it is apparent that some users may be 
inconvenienced by the need to proceed at slower speeds or the need to 
use alternative sites. To address the concerns of adjoining property 
owners, we have provided exceptions to ensure that they are not 
adversely affected by these designations. As such, we believe that this 
rule will not result in a significant economic dislocation.
    Comment 15: 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 the 
commenter's concerns. We have responded to those concerns to the best 
of our ability with this final rule and our 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 16: 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.

[[Page 68461]]

    Comment 17: 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 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.
    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 18: 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 19: Commenters pointed out that a year-round, slow speed 
manatee refuge in the area of Pansy Bayou would preclude a local water 
ski program that practices and performs in the area and urged that we 
consider measures that would allow them to continue their activities.
    Response: We are unable to adopt measures that would allow program 
participants to continue their activities in the context of this rule. 
We will address this request in a subsequent rulemaking that will re-
describe the restricted activities or propose other means of resolving 
this issue while providing sufficient protection for manatees.
Summary of Changes From the Proposed Rule
    Pursuant to comments from the FWCC, various counties, and the 
public at large, we have made changes to the individual proposed 
manatee sanctuary and refuge designations to better coordinate with 
site-specific seasonal and areal limits, to improve consistency with 
local regulations, and to improve boater safety. In our proposed and 
emergency rules, we described the winter season to include that period 
from October 1 through March 31. Upon re-evaluation, it has become 
apparent that the modified November 15 through March 31 period better 
captures the time when manatees first appear and are most abundant at 
these sites; this period of time is also consistent with State and 
local regulations. As such, we have adopted this season for 
consistency, to reduce confusion potentially caused by the different 
timeframes, and at the same time, provide for adequate protection for 
manatees. Site-specific changes are described below, and summarized in 
Table 1. As can be seen in that table, the total of the areas 
designated as manatee protection areas by this rule is 2,562.84 
hectares (6,333.10 acres).
    We have also made some editorial changes to the regulations that 
set forth the Barge Canal and Sykes Creek Manatee Refuges. These two 
refuges were established by the final rule of January 7, 2002 (67 FR 
680). We are making nonsubstantive changes to the text that sets forth 
these refuges simply to make subparagraphs (c)(1) and (c)(2) of 50 CFR 
17.108 consistent with the new subparagraphs being added through this 
final rule--(c)(3) through (c)(11).
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[[Page 68464]]

Blue Waters Manatee Sanctuary

    In order to minimize confusion with a recently adopted FWCC 
protection area in Blue Waters and to promote boater safety, we have 
revised the area of our originally designated sanctuary to conform with 
the FWCC's designation. This reduction, from 1.7 hectares (ha) (4.1 
acres), as originally proposed, to 0.67 ha (1.66 acres), entails 
removing protection from the spring boil to the northern limit of the 
newly described protection area and adding a shoreline buffer to the 
south of the re-configured northern sanctuary. These changes will not 
compromise manatee protection inasmuch as the public will be precluded 
in the areas upstream of the site through the site's ``no entry'' 
designation. We have also changed the period of protection from October 
1 through March 31 to November 15 through March 31. This conforms with 
the period of highest manatee use, known manatee use areas on-site, is 
consistent with local seasonal measures, and minimizes confusion, 
thereby improving compliance with this measure.

Bartow Electric Generating Plant Manatee Sanctuary

    Our manatee sanctuary has been reduced in size from 73.5 ha (181.5 
acres), as originally proposed, to 12.07 ha (29.82 acres), and the 
boundaries and seasonal limits have been changed to provide consistency 
with local county measures. That portion of the sanctuary within the 
gated area of the Bartow outfall, where there is no access for manatees 
or the boating public, has been removed. Other areas included in our 
proposed rule were also dropped, in view of broader, existing Pinellas 
County protections in these areas, specifically, the county 
``combustion motor exclusion zone,'' in effect from November 15 through 
March 31. The manatee sanctuary was further focused to address 
harassment within the immediate area of the discharge. The boundary 
lines were re-drawn to promote consistency with the local ordinance and 
to minimize confusion to the public. Furthermore, the water bottoms are 
privately owned and we were advised by the property owner that they 
would have problems allowing us to place signs in the area if the signs 
did not support local ordinances, ordinances that they have strongly 
supported. The period of protection was changed from October 1 through 
March 31 to November 15 through March 31. This conforms to that period 
when manatees first appear in the area, periods of highest manatee use, 
is consistent with local seasonal measures, and minimizes confusion, 
thereby improving compliance with this measure.

South Gandy Navigation Channel Manatee Refuge

    Pinellas County adopted a regulatory zone within the South Gandy 
Navigation Channel that is more restrictive than ours. The county has 
designated the entire length of the channel as a ``slow speed'' area 
from its upper most reaches out into Tampa Bay. The measure protects 
manatees throughout the year from watercraft collisions in this high 
boat traffic area. The only exemptions to these regulations are for law 
enforcement officers and county officials who may exceed posted 
measures when conducting official business or for human safety and 
property concerns. There are no exemptions to these restrictions for 
the general public. The county has posted this area and is actively 
enforcing the zone. We have been advised by the county that their law 
enforcement officers have issued 43 citations and 82 warnings to 
violators since posting in March 2002. The county is also conducting a 
study, in conjunction with the State, to ensure the effectiveness of 
these conservation measures.
    Our manatee refuge designation in this area, as described in the 
proposed and emergency rules, includes only a portion of the county's 
protection area and conflicts with the county's year-round designation. 
We have been advised by the FWCC Division of Law Enforcement that the 
adoption of a Federal sign plan that is inconsistent with local 
measures would preclude us from posting a Federal zone in this area and 
that they will not issue a permit that contradicts or confuses existing 
measures. Furthermore, the water bottoms are privately owned and we 
were advised by the property owner that they would have problems 
allowing us to place signs in the area if they did not support local 
ordinances, ordinances that they have strongly supported. Because of 
these issues and because the local ordinance is larger in area, is of 
longer duration (year-round instead of seasonal), provides the same 
type of protection (i.e., slow speed), does not allow exceptions, and 
because we believe that the area will be adequately enforced, we are 
withdrawing our proposal and emergency designation at this site. We 
will, however, continue to monitor manatee take in this area. In the 
event that additional conservation measures are determined to be needed 
in Pinellas County, we will work with the county to address these 
needs. If the existing conservation measures or any additional 
necessary conservation measures are not implemented, the Service will 
reconsider Federal designation again in the future.

Tampa Electric Company Big Bend Manatee Sanctuary

    On Sept. 20th, 2002, we emergency-designated a manatee sanctuary in 
the Tampa Electric Company's Big Bend power plant discharge, in the 
approaches to the west, and in an area to the southeast of the 
discharge. We also emergency-designated a manatee refuge to the south 
of the discharge simultaneously. These measures were designed to 
enhance and improve consistency with new and existing protection 
measures in the area. Specifically, the FWCC designated the eastern end 
of the discharge canal as a no entry area, the approaches as a slow 
speed area, and the area to the south as a caution area. The county 
further designated year-round idle speed zones in the canals adjacent 
to our manatee refuge, a year-round idle speed zone at the point where 
the manatee refuge enters Tampa Bay, and year-round slow speed zones to 
the north and south of the manatee refuge entrance.
    To accommodate these measures, we have modified our seasonal no 
entry zone (manatee sanctuary) to include that area inside the 
discharge canal. We have modified the manatee sanctuary at its western 
end because of the conflicting State and local regulations, which 
designate idle speed and slow speed measures in this area (such 
designations already minimize the likelihood of boat collisions with 
manatees using the approaches to these sites) during different times of 
the year. The manatee sanctuary is further modified at the southeast 
corner to ensure consistency with the State's actions; this site is 
occasionally used by foraging manatees and is now included in our 
manatee refuge designation. We have further been advised by the FWCC 
Division of Law Enforcement that the adoption of a Federal sign plan 
that is inconsistent with local measures would preclude us from posting 
a Federal zone in this area and that they will not issue a permit that 
contradicts or confuses existing measures.
    These modifications have changed the area of this manatee sanctuary 
as originally proposed. The area of the original site included 30.8 ha 
(76.2 acres). Subsequent to the changes, the site now includes 12.08 ha 
(29.85 acres).

[[Page 68465]]

Tampa Electric Company Big Bend Manatee Refuge

    Our manatee refuge has been modified to include the aforementioned 
portion of the proposed Tampa Electric Company Big Bend Manatee 
Sanctuary. While the addition of this portion of the manatee sanctuary 
will increase the effective area of our manatee refuge, the total area 
of the refuge appears to be decreasing. The original acreage 
inadvertently included portions of uplands in the southwest corner of 
the refuge. The original acreage should have been 76.05 ha (187.89 
acres), a decrease of 17.45 ha (or 43.11 acres) from the originally 
proposed and emergency designated 93.5 ha (230.9 acres). We have added 
the acreage from the sanctuary and subtracted the upland acreage. As 
such, the area of this manatee refuge is now 89.35 ha (220.79 acres). 
We believe this modification provides equal, if not greater, protection 
for manatees.
    Additionally, we have been advised by the FWCC Division of Law 
Enforcement that the adoption of a Federal sign plan that is 
inconsistent with local measures would preclude us from posting a 
Federal zone in this area and that they will not issue a permit that 
contradicts or confuses existing measures. As such, we have modified 
this area to conform to State and local measures to promote consistency 
with signage and regulations and to minimize confusion to the boating 
public.

Little Sarasota Bay Manatee Refuge

    We have modified our original proposal, which designated this area 
as ``slow speed, channel exempt,'' to require that watercraft not 
exceed 40 kilometers (km) per hour (25 miles per hour) in the channel 
so that we are consistent with more restrictive FWCC regulations in 
adjacent waters, to avoid confusion among boaters, and to promote 
boater safety. The FWCC designated sites to the north and south as 
``slow speed, 25 miles per hour in the channel'' areas. Because this 
measure is more restrictive than our original ``channel exempt'' 
designation, we believe this modification will increase manatee 
protection at this site over our original proposal.

Lemon Bay Refuge

    The FWCC has adopted a ``slow speed, 25 miles per hour in the 
channel'' manatee protection measure at this site. As such, we have 
modified our original proposal which designated this area as ``slow 
speed, channel exempt'' to require that watercraft not exceed 40 km per 
hour (25 miles per hour) in the channel in order to be consistent with 
the more restrictive FWCC regulations, to avoid confusion among 
boaters, and to promote boater safety. We believe that this 
modification, which is more restrictive than our original proposal, 
will increase manatee protection at this site over our original 
proposal.

Peace River Manatee Refuge

    The FWCC has adopted manatee protection measures that overlap and 
conflict with our original proposal. We have modified our designation 
to conform to the FWCC's manatee protection measures where we believe 
these changes do not reduce manatee protection. However, differences 
between our regulations and FWCC regulations remain.
    The changes from our original proposal are as follows. We have 
reduced the extent of our slow speed zone between the U.S. Highway 41 
and I-75 bridges to conform with the FWCC's 300-meters (1,000-feet) 
shoreline buffer zones. The area between the buffer zones has been 
designated to require boat operators to operate watercraft at speeds 
not to exceed 40 km per hour (25 miles per hour). We are changing the 
designation upstream of red channel marker 14, in Charlotte County just 
south of the DeSoto County line, from slow speed channel exempt to 40 
km per hour (25 miles per hour) bank to bank; and, should the U.S. 
Coast Guard or the State mark a navigation channel or approve a marked 
navigation channel in an area approximately 1.6 km (1 mile) downstream 
of the railroad trestles in Shell Creek, we will allow watercraft to 
travel up to 40 km per hour (25 miles per hour) in the channel in this 
area as well.
    We believe our final designation, modified from our original 
proposal, will provide adequate protection for manatees in the Peace 
River. This conclusion is based on a combination of manatee carcass 
recovery sites and sighting locations. This designation is very similar 
to the plan which was originally proposed for public review by the FWCC 
in May 2002, and is more protective than the plan which was ultimately 
approved. For example, the final FWCC action provides for an additional 
boat travel corridor in the lower portions of the river and reduced 
manatee protection in portions of Hunter Creek where there is 
significant manatee use. At this time, we are unable to accommodate all 
aspects of the FWCC's plan without reducing overall levels of manatee 
protection or making significant changes from our original proposal, 
changes that would require additional public reviews. However, we will 
coordinate signage and posting plans with FWCC personnel to minimize 
confusion to the regulated public.
    We have reduced the size of the original area from 4,892.00 ha 
(12,088.10 acres) to 1,698.11 ha (4,196.11 acres) because of a mapping 
error. This error included calculating the area of uplands within the 
Peace River flood plain and including this area in the size calculation 
for total area of the manatee refuge.

Haulover Canal Manatee Refuge

    In our original proposal, we designated the canal and approaches 
(out to 0.8 km or 0.5 mile) as a slow speed manatee refuge. Subsequent 
to the proposal, the FWCC adopted manatee protection measures that 
overlap the approaches immediately east and west of the canal. We 
believe that the State measures in the approaches provide adequate 
protection for manatees. However, the FWCC did not include the canal 
proper in their rule. The canal proper, located on the Merritt Island 
National Wildlife Refuge, is currently designated as a slow speed area, 
pursuant to an existing national wildlife refuge designation, 
authorized under the National Wildlife Refuge Administration Act. This 
Act consolidated the authorities for areas administered by us, 
established the National Fish and Wildlife Refuge System, and provided 
that all property in the system shall be administered by us for the 
conservation, management, and, where appropriate, restoration of the 
fish, wildlife, and plant resources and their habitats within the 
United States for the benefit of present and future generations of 
Americans. We believe that our decision to protect this site through 
our ESA and MMPA authority increases manatee protection beyond that 
provided by the State and the National Wildlife Refuge designation, and 
improves the enforcement of the existing slow speed zones by making the 
legal restrictions consistent with those in other manatee protection 
areas (i.e., protected under the ESA and MMPA). We believe the changes 
will not reduce protection of manatees from the measures originally 
proposed.

Areas Designated as Manatee Sanctuaries and Refuges

Blue Waters Manatee Sanctuary

    We are establishing a seasonal manatee sanctuary, containing 
approximately 0.67 ha (1.66 acres), at the headwaters of the Homosassa 
River,

[[Page 68466]]

adjacent to the Homosassa Springs State Wildlife Park, commonly 
referred to as the Blue Waters, in Citrus County. All waterborne 
activities will be prohibited in this area from November 15 through 
March 31. 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 headwaters of the Homosassa River are an important wintering 
site for manatees (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.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. These studies, begun in the late 1960s, have 
documented historical manatee use of the area (Hartman 1979). 
Initially, use was primarily associated with the springs during the 
winter. In recent years, however, manatees have become more common 
during the summer months, as documented through surveys and field 
observations (Joyce Kleen, Chassahowitzka National Wildlife Refuge, 
pers. comm. 2002). During the course of aerial surveys, a peak count of 
123 manatees were sighted here on a single winter day (Joyce Kleen, 
pers. comm. 2002). Manatee deaths have been recorded in the area since 
1974. Eight carcasses were recovered within 0.8 km (0.5 mile) of the 
site, including one from within the manatee sanctuary. Four of these 
were attributed to watercraft collision, including three watercraft-
related deaths in the past five years. These deaths occurred between 
the months of November and March, that period when manatees are most 
abundant (Florida Marine Research Institute Manatee Mortality 
Database).
    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 
manatees. The waters of the Homosassa River are currently regulated as 
a State-designated 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. 
These measures were recently enhanced by the FWCC, which adopted a rule 
designating this area as a seasonal no entry area. The State will post 
this area prior to November 15, 2002 (Kipp Frohlich, pers comm. 2002). 
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 and 
will continue to provide the public with opportunities to interact with 
manatees outside of the protected area.

Bartow Electric Generating Plant Manatee Sanctuary

    We are establishing a seasonal manatee sanctuary, containing 
approximately 12.07 ha (29.82 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 November 15 through March 31, inclusive. 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 (FWCC, 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 Marine Research 
Institute Manatee Mortality Database 2002).

Tampa Electric Company's Big Bend Manatee Sanctuary

    We are establishing a manatee sanctuary, containing approximately 
12.08 ha (29.85 acres), at the Tampa Electric Company's Big Bend 
Electric Generating Station's discharge canal in Tampa Bay, 
Hillsborough County. This closure will prohibit all waterborne activity 
at this site from November 15 through March 31. We are also 
establishing a manatee refuge in the area south of this sanctuary (see 
``Tampa Electric Company's Big Bend Manatee Refuge'' below).
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Two types of surveys have been used to document 
manatee use of this site. Synoptic surveys, conducted during the winter 
to provide minimum counts, have been conducted here since 1989. Per 
these surveys, the most manatees counted at this site was 316 on 
January 6, 2001 (FWCC, unpublished data). Distribution and abundance 
surveys, conducted in the area between November 1987 and June 1997, 
have documented 2,470 manatees using the site and its immediate 
surroundings throughout the year. Per these survey parameters, there 
were 510 sightings (a sighting may include multiple manatees) observed 
during the survey period. Observed activities primarily included 
resting manatees, followed by observations of traveling animals 
(Florida Marine Research Institute Aerial Survey Database). Fifteen 
carcasses were recovered from this area, including three carcasses 
recovered within the manatee sanctuary and 12 recovered within 0.8 km 
(0.5 mile) of the manatee sanctuary. These deaths, recorded since 1974, 
included five watercraft-related deaths, including two that occurred 
within the past five years. Deaths occurred between November and April 
(Florida Marine Research Institute Manatee Mortality Database).
    We decided to establish this sanctuary based on observed manatee 
use patterns documented at this site (Wright et al. 2002, Weigle et al. 
2001, Hartman 1979) and on observations of takings known to occur at 
this (FWCC, unpubl. data.) and other similar sites (Tyson 1998, Wooding 
1997). Similar to other discharges, large numbers of fish and manatees 
are attracted to this heated effluent. 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 manatees in outfall areas. Boat operators maneuvering within 
manatee aggregations, anglers hooking manatees, and people pursuing

[[Page 68467]]

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 Marine Research Institute Manatee 
Mortality Database 2002).
    There is currently a State-designated, seasonal, no-entry zone in 
the immediate vicinity of the Big Bend discharge. We believe that the 
zone is too small, however, to prevent harassment of manatees by 
fishermen, who cast into the aggregation area; therefore, we have 
designated a larger area. A larger manatee sanctuary at this site will 
improve the protection area and should adequately protect manatees from 
harassment from fishing and waterborne activities.

Tampa Electric Company's Big Bend Manatee Refuge

    We are establishing a manatee refuge, encompassing approximately 
89.35 ha (220.79 areas), in the waters adjacent to and south of the 
manatee sanctuary at the Tampa Electric Company's Big Bend Electric 
Generating Station on Tampa Bay 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 November 15 through March 31.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between November 1987 and June 1997, have documented 2,516 
manatees using the site and its immediate surroundings throughout the 
year. Per these survey parameters, there were 538 sightings (a sighting 
may include multiple manatees) observed during the survey period. 
Observed activities primarily included resting manatees, followed by 
observations of traveling animals (Florida Marine Research Institute 
Aerial Survey Database). Eighteen manatee carcasses were recovered from 
this area, including five from within the manatee refuge and 13 within 
a 0.8 km (0.5 mile) radius of the site. These deaths, recorded since 
1974, include six watercraft-related deaths, including two that 
occurred within the past five years. Deaths occurred throughout the 
year (Florida Marine Research Institute Manatee Mortality Database).
    The likelihood of adverse manatee encounters with watercraft is 
increased in the vicinity of aggregation 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 November 15 through March 31, 
inclusive. In addition, we are designating a manatee refuge in the area 
surrounding the sanctuary (see ``Port Sutton Manatee Refuge'' below). 
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 previously attracted 
manatees during cold weather periods. Similar to other warm water 
discharges, large numbers of fish are attracted to this heated 
effluent. As such, both anglers and manatee enthusiasts could be 
attracted to the site, leading to an increased potential for cases of 
harm and harassment to manatees. The area is presently closed to public 
access because of security concerns. However, the sanctuary designation 
will ensure adequate manatee protection should the area reopen in the 
future.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Two types of surveys have been used to document 
manatee use of this site. Synoptic surveys, conducted during the winter 
to provide minimum counts, have been conducted here since 1989. Per 
these surveys, between 25 and 50 manatees have been counted in this 
area (FWCC, unpublished data). Distribution and abundance surveys, 
conducted in the area between November 1987 and June 1997, have 
documented 106 manatees using the site and its immediate surroundings 
on a sporadic basis throughout the year. Per these survey parameters, 
there were 44 sightings (a sighting may include multiple manatees) 
observed during the survey period. Observed activities primarily 
included resting manatees, followed by observations of traveling 
animals (Florida Marine Research Institute Aerial Survey Database). 
Four manatee carcasses were recovered within a 0.8 km (0.5 mile) radius 
of the site. These deaths, recorded since 1974, included a single 
watercraft-related death and a death associated with cold. Deaths 
occurred in December, January, and May (Florida Marine Research 
Institute Manatee Mortality Database).
    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 (FWCC, unpubl. data).
    Hillsborough County has adopted a local ordinance designating this 
site as a seasonal slow speed manatee protection area from November 15 
through March 31. The site has yet to be posted (Chuck Coleman, 
Hillsborough County, pers. comm. 2002).

Port Sutton Manatee Refuge

    We are designating the Port Sutton area surrounding the manatee 
sanctuary at the Tampa Electric Company's Port Sutton (Gannon) Electric 
Generating Station, on Tampa Bay 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 November 15 through March 31, inclusive.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between November 1987 and June 1997, have documented 148 manatees 
using the site and its immediate surroundings on a sporadic basis 
throughout the year. Per these survey parameters, there were 55 
sightings (a sighting may include multiple manatees) observed during 
the survey period. Observed activities primarily included resting 
manatees, followed by observations of traveling animals (Florida Marine 
Research Institute Aerial Survey Database). Five manatee carcasses were 
recovered in

[[Page 68468]]

this area, including one within the manatee refuge. These deaths, 
recorded since 1974, included two watercraft-related deaths and a death 
associated with cold. Deaths occurred in December, January, March, and 
May (Florida Marine Research Institute Manatee Mortality Database).
    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 Port Sutton (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. 
The area is presently closed to public access because of security 
concerns related to potential terrorist activities. However, the 
sanctuary designation will ensure adequate manatee protection should 
the area reopen in the future.
    Hillsborough County has adopted a local ordinance designating a 
small portion of this site as a seasonal slow speed manatee protection 
area (November 15 through March 31). The site has yet to be posted 
(Chuck Coleman, Hillsborough County, pers. comm. 2002).

Pansy Bayou Manatee Refuge

    We are establishing a manatee refuge, containing approximately 47 
ha (116.1 acres) in the northern Pansy Bayou area between City Island 
and the John Ringling Parkway Bridge on Sarasota Bay in Sarasota 
County, to regulate vessel traffic to slow speed year-round.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between 1985 and 1999, have documented 1,211 manatees using the 
site and its immediate surroundings throughout the year. Per these 
survey parameters, there were 533 sightings (a sighting may include 
multiple manatees) observed during the survey period. Observed 
activities primarily included traveling and resting manatees, followed 
by observations of feeding animals (Florida Marine Research Institute 
Aerial Survey Database). Shallow inshore waters in this area are 
typified by stands of sea grass. Seven manatee carcasses were recovered 
within a 0.8 km (0.5 mile) radius of the site; no carcasses were 
recovered on-site. These deaths, recorded since 1974, included a single 
watercraft-related death. Deaths occurred in January, April, May, June, 
July, and August (Florida Marine Research Institute Manatee Mortality 
Database).
    Pansy Bayou proper is currently closed under State law to all 
vessel traffic except residents, and serves as a manatee sanctuary. The 
site is currently used as a water-ski area, although recent action has 
been taken by the FWCC to designate the site as a slow speed area. This 
action has not yet been implemented. The remaining waters around the 
manatee refuge are currently designated by the State as slow speed 
(channel included) zones (F.A.C. 62N-22.026(2)(a)(4)). High-speed 
watercraft operation in this area poses a continuing threat to a 
substantial number of manatees. Establishment of a slow-speed zone will 
minimize the risk of manatee take due to disturbance and/or watercraft 
collisions.

Little Sarasota Bay Manatee Refuge

    We are designating a manatee refuge, containing approximately 
214.20 ha (529.40 acres), to control vessel speeds in the little 
Sarasota Bay area between the Blackburn Point Bridge and Intracoastal 
Waterway Channel Marker ``40'' in Sarasota County. The speed 
designation for this area will be slow speed, 40 km per hour (25 miles 
per hour) in the channel, year-round.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between November 1985 and June 1999, have documented 243 manatees 
using the site and its immediate surroundings on a sporadic basis 
throughout the year. Per these survey parameters, there were 122 
sightings (a sighting may include multiple manatees) observed during 
the survey period. Observed activities primarily included traveling 
manatees, followed by observations of resting animals (Florida Marine 
Research Institute Aerial Survey Database). Two manatee carcasses were 
recovered within 0.8 km (0.5 mile) of the site boundaries. These 
deaths, recorded since 1974, include a watercraft-related death and a 
death involving a perinatal-class animal. Deaths occurred in July and 
November (Florida Marine Research Institute Manatee Mortality 
Database).
    There are currently no speed zones in this portion of Sarasota 
County, although the State regulates the areas to the north and south 
of the site. The State designations include marked channels that allow 
for a maximum travel speed of 40 km per hour (25 miles per hour) within 
the channels. The current unregulated nature of vessel operation at 
this site has high potential for resulting in manatee take. 
Establishing a slow-speed zone outside of the main navigation channel 
will reduce the potential for take by limiting vessel speeds in those 
waters where manatees are most likely to occur.

Lemon Bay Manatee Refuge

    We are establishing a manatee refuge, containing approximately 
383.61 ha (948.06 acres), in Lemon Bay, Charlotte County, from the 
Charlotte County/Sarasota County boundary to a line approximately 1.6 
km (1 mile) south of the Bay Road Bridge, for the purpose of regulating 
vessel speeds. Speeds will be restricted to slow speed, 40 km per hour 
(25 miles per hour) in the channel, year-round.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between 1987 and 1999, have documented 626 manatees using the site 
and its immediate surroundings throughout the year. Per these survey 
parameters, there were 356 sightings (a sighting may include multiple 
manatees) observed during the survey period. A high count of 13 animals 
was documented on November 4, 1994. Observed activities primarily 
included resting and feeding manatees, followed by observations of 
traveling animals (Florida Marine Research Institute Aerial Survey 
Database). Eleven carcasses were recovered from this area; six were 
recovered within the refuge and the remaining five were recovered 
within 0.8 km (0.5 mile) of the refuge boundaries. These deaths, 
recorded since 1974, include five watercraft-related deaths (two of 
these deaths occurred during the last five years). Deaths occurred 
between March and October (Florida Marine Research Institute Manatee 
Mortality Database).
    There are currently no speed zones for manatee protection in this 
portion of Charlotte County, although the FWCC has recently adopted 
regulations to provide similar protection in this area. The State 
agency does not believe that the site will be posted until 2003 (Kipp 
Frohlich, pers. comm. 2002). The unregulated nature of this water body 
makes the taking of manatees very likely, due to the high speed at 
which watercraft currently travel through areas frequented by manatees. 
Establishing a slow-speed zone outside of the main navigation channel 
will reduce the likelihood of manatee take occurring.

[[Page 68469]]

Peace River Manatee Refuge

    We are establishing a manatee refuge, containing 1,698.11 ha 
(4,196.11 acres) more or less, in the Peace River (located on the 
northeast corner of Charlotte Harbor) in Charlotte and De Soto 
Counties. This refuge will include the river and specific associated 
waters northeast of U.S. Highway 41. Waters within described areas will 
be regulated to allow watercraft to travel at a maximum speed of 40 km 
per hour (25 miles per hour), while other waters will be regulated to 
provide for slow-speed vessel operation. These regulations will be in 
effect year-round.
    Described Areas Include
    (a) Slow speed 300 meter (1,000 feet) shoreline buffers between the 
U.S. Highway 41 and I-75 bridges;
    (b) slow speed outside of the marked navigation channel, 40 km per 
hour (25 miles per hour) in the marked channel, between the I-75 bridge 
and red channel marker ``14'';
    (c) 40 km per hour (25 miles per hour), upstream of red channel 
marker ``14'';
    (d) slow speed in Jim Long Lake, Hunter Creek, and Deep Creek; and
    (e) slow speed in Shell Creek (if the U.S. Coast Guard or the State 
of Florida approve and designate a marked channel in this area, the 
channel may be designated as 40 km per hour (25 miles per hour) within 
the channel.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between 1987 and 1999, have documented 1,020 manatees using the 
site and its immediate surroundings throughout the year. Per these 
survey parameters, there were 504 sightings (a sighting may include 
multiple manatees) observed during the survey period. A high count of 
15 animals was documented on July 2, 1998. Observed activities 
primarily included traveling and resting manatees, followed by 
observations of feeding animals. Animals were observed every month of 
the year (Florida Marine Research Institute Aerial Survey Database). 
Forty-nine manatee carcasses have been recovered in this area and 47 of 
these were recovered from within the refuge area. These deaths, 
recorded since 1974, include eleven watercraft-related deaths; three of 
these deaths occurred during the last five years. Deaths occurred in 
all months (Florida Marine Research Institute Manatee Mortality 
Database).
    Manatee protection areas have recently been adopted by the FWCC 
throughout much of this area. There are also local ordinances in effect 
in a small portion of this area. The State protection areas have yet to 
be posted and enforced. As a result, watercraft continue to travel at 
high speeds throughout many areas of the Peace River frequented by 
manatees. This refuge will slow vessel traffic in those portions of the 
Peace River where watercraft are most likely to encounter manatees, 
thereby reducing the likelihood of take.

Shell Island Manatee Refuge

    We are establishing a manatee refuge, containing approximately 
32.60 ha (80.50 acres), for the purpose of regulating vessel speeds at 
slow speed within the navigation channel that is located just north of 
Shell Island at the mouth of the Caloosahatchee River, Lee County. This 
regulation will be in effect year-round.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between 1984 and 1999, have documented 65 manatees using the site 
and its immediate surroundings. Per these survey parameters, there were 
31 sightings (a sighting may include multiple manatees) observed during 
the survey period. A high count of 9 animals was documented on June 25, 
1997. Observed activities primarily included traveling and resting 
manatees. Animals were observed sporadically throughout the year 
(Florida Marine Research Institute Aerial Survey Database). Sixteen 
manatee carcasses have been recovered in this area; three were 
recovered in the refuge and remaining 13 were recovered within 0.8 km 
(0.5 mile) of the refuge. These deaths, recorded since 1974, include 
five watercraft-related deaths. Two of these deaths occurred during the 
last five years. Deaths occurred in January, February, March, April, 
July, September, and November (Florida Marine Research Institute 
Manatee Mortality Database).
    The site is located at the mouth of the Caloosahatchee River, which 
supports a large number of manatees. The Florida Power and Light 
electrical generating station, located on this river, is a major 
wintering refuge for manatees. On January 6, 2001, 434 manatees were 
observed there (Florida Marine Research Institute Aerial Survey 
Database). Most manatees using the Caloosahatchee River must pass 
through the Intracoastal Waterway navigation channel north of Shell 
Island when entering or exiting the river. Similarly, the Shell Island 
channel is a significant travel corridor for vessels entering and 
leaving the Gulf and nearshore waters. This funneling of both 
watercraft traveling at high speed and manatees through a narrow 
channel has a high probability for take of manatees. A slow-speed zone 
will minimize the likelihood of manatee take occurring at this site.
    The FWCC is currently promulgating a boating safety rule for this 
site. This rule would require boat operators to operate a slow speeds 
during the day time on week ends for boating safety purposes. Dates for 
completion of rule promulgation and sign posting are unknown at this 
time (Kipp Frohlich, pers. comm. 2002).

Haulover Canal Manatee Refuge

    We are establishing a manatee refuge, containing approximately 8.95 
ha (22.11 acres), within the confines of Haulover Canal, located at the 
north end of Merritt Island between the Indian River and Mosquito 
Lagoon, in Brevard County. Waters will be designated as slow speed, 
channel included, year-round.
    Manatees moving between Mosquito Lagoon and the Indian River travel 
through Haulover Canal. These animals include a portion of the Atlantic 
coast sub population that uses northeast Florida and coastal Georgia, a 
sub population estimated to include as many as 300 individuals (Valade, 
Service, unpubl. data). Manatee presence has been documented in this 
area through aerial surveys, photo-identification studies, telemetry 
studies, and a carcass salvage program. Distribution and abundance 
surveys, conducted in the area between 1986 and 1999, have documented 
209 manatees using the site and its immediate surroundings. Per these 
survey parameters, there were 73 sightings (a sighting may include 
multiple manatees) during the survey period. A high count of 13 animals 
was documented on October 16, 1997. Observed activities primarily 
included traveling and resting manatees, followed by observations of 
animals cavorting. Animals were observed throughout the year (Florida 
Marine Research Institute Aerial Survey Database). Nine carcasses were 
recovered in this area, including three from within the manatee refuge. 
The remaining six carcasses were collected within 0.8 km (0.5 mile) of 
the site. These deaths, recorded since 1974, include six watercraft-
related deaths, including one that occurred this year. Deaths occurred 
in January, February, March, May, September, and December

[[Page 68470]]

(Florida Marine Research Institute Manatee Mortality Database).
    The canal proper, located on the Merritt Island National Wildlife 
Refuge, is currently designated as a slow speed area, pursuant to an 
existing national wildlife refuge designation, authorized under the 
National Wildlife Refuge Administration Act. This Act consolidated the 
authorities for areas administered by us, established the National Fish 
and Wildlife Refuge System, and provided that all property in the 
System shall be administered by us for the conservation, management, 
and, where appropriate, restoration of the fish, wildlife, and plant 
resources and their habitats within the United States for the benefit 
of present and future generations of Americans. The canal approaches 
were recently designated as slow speed areas by the FWCC. The 
approaches have yet to be posted. Our adoption of the canal zone as a 
manatee refuge, pursuant to the ESA and MMPA, will improve enforcement 
capabilities and enhance the Merritt Island National Wildlife Refuge's 
efforts to protect manatees in this area. This final rule eliminates 
the protection areas from the approaches in deference to more extensive 
State measures. As a result, the proposed refuge has been reduced in 
size from 276.30 ha (682.70 acres) to 8.95 ha (22.11 acres).

Cocoa Beach Manatee Refuge

    We are establishing a manatee refuge, containing approximately 23.9 
ha (59.1 acres), to regulate vessel operation at slow speed year-round 
in the area adjacent to Municipal Park, just west of Cocoa Beach in the 
Banana River, in Brevard County.
    Manatee presence has been documented in this area through aerial 
surveys, photo-identification studies, telemetry studies, and a carcass 
salvage program. Distribution and abundance surveys, conducted in the 
area between 1986 and 1999, have documented 99 manatees using the site 
and its immediate surroundings. Per these survey parameters, there were 
47 sightings (a sighting may include multiple manatees) during the 
survey period. A high count of nine animals was documented on May 22, 
1998. Observed activities primarily included traveling and feeding 
manatees, followed by observations of animals resting. The area 
contains significant sea grass beds and is consistently used as a 
foraging area by manatees. Animals were observed throughout the year 
(Florida Marine Research Institute Aerial Survey Database). Three 
carcasses were recovered from this area, including one from the refuge 
proper. These deaths, recorded since 1974, include one watercraft-
related death. Deaths occurred in April, July, and November (Florida 
Marine Research Institute Manatee Mortality Database).
    The site was recently designated as a slow speed zone by the State; 
however, the site has yet to be posted. Given the use of the area by 
manatees, current high-speed vessel operation at this location has a 
high probability of resulting in the take of manatees. Requiring 
vessels to proceed at slow speed will minimize potential manatee 
takings.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. OMB 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. It is not expected that any significant economic impacts 
would result from the establishment of four manatee sanctuaries (64.03 
acres) and nine manatee refuges (6,269.07 acres) in eight counties in 
the State of Florida.
    The purpose of this rule is to establish 13 additional manatee 
protection areas in Florida. We are proposing to reduce the level of 
take of manatees by controlling human activity in four areas designated 
as manatee sanctuaries and nine areas designated as manatee refuges. 
Affected waterborne activities include swimming, diving, snorkeling, 
water skiing, surfing, fishing, the use of water vehicles, and dredge 
and fill activities. For the four areas designated as manatee 
sanctuaries, all waterborne activities will be prohibited from November 
15 to March 31. For the nine areas designated as manatee refuges, the 
areas will be slow or idle speed zones with certain site-specific 
exceptions, including 40 km per hour (25 miles per hour) in some 
channels. The economic effect of these designations will be measured by 
the number of recreationists 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 3 million acres of lakes so the designation of less 
than seven thousand acres, most of which is for lower speed zones, is 
unlikely to curtail any waterborne activity.
    For boating recreationists, the inconvenience and extra time 
required to cross a slow speed zone will reduce the quality of the 
waterborne activity for some participants. The extra time required for 
commercial charter boats to reach fishing grounds could 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. However, since Florida has 12 thousand miles 
of rivers and streams and 3 million acres of lakes and ponds it is 
likely that only a small percentage of boat users will be affected by 
this rule. The current designation will cause some inconvenience in 
travel time over these areas but alternative sites within the proximity 
of the sanctuaries and refuges are available for all waterborne 
activities. Furthermore, none of the areas designated is the entire 
surface area of a water body. The un-designated parts of the water 
bodies are available for waterborne activities. Recreationists and 
commercial boaters may be inconvenienced by having to travel to an un-
designated area but they are not prohibited from participating in any 
of the waterborne activities. Currently, there are no data sources 
identified that estimate the amount of recreational activity in and 
around the areas to be designated as either manatee sanctuaries or 
refuges. However, the majority (6,269.07 acres) of the areas being 
designated are for manatee refuges, which only require reduced speed. 
The 64.03 acres designated as manatee sanctuaries are part of larger 
water bodies where unrestricted waterborne recreational activity can 
take place. For these reasons, we believe that, although some 
inconvenience to the public may occur because of reduced travel speeds, 
the economic impact will not be significant.
    b. This rule will not create inconsistencies with other agencies' 
actions. The precedent to establish manatee protection areas has been 
established primarily by State and local governments in Florida. We 
recognize the important role of State and local partners and continue 
to support and encourage State and local measures to improve manatee 
protection. We are designating areas where State and local governments 
have been unable to implement what we consider to be adequate measures. 
We have also focused the designation on those sites in which we have 
determined that Federal

[[Page 68471]]

action can effectively address the needs in the particular area, 
recognizing that we face certain resource limitations. We are eager to 
work with State and local agencies to develop and implement their own 
measures in the areas described in this final rule that would be 
equally protective of manatees and equally consistent with other 
measures, and thus would allow us to remove Federal designations and 
protections.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
There are minimal restrictions to existing human uses of the proposed 
sites as a result of this rule, but the restriction is believed to 
enhance manatee viewing opportunities. No entitlements, grants, user 
fees, loan programs or the rights and obligations of their recipients 
are expected to occur.
    d. This rule will not raise novel legal or policy issues. We have 
previously established other manatee protection areas.

Regulatory Flexibility Act

    We 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.
    Selected economic characteristics of the affected counties are 
shown in Table 2. As can be seen in the table, the growth rate in per 
capita income is slower than the State average in Citrus, Brevard, 
Charlotte, and Lee Counties but the rate of growth in total personal 
income exceeds the State average except in Brevard, De Soto, and 
Pinellas Counties where it is lower. Larger households account for the 
lower per capita income estimates in these counties. The proportion of 
total industry earnings coming from the amusements and recreation 
sector ranges from 0.5 percent in Brevard County to 2.7 percent in 
Sarasota County. All of these counties had the service sector as the 
largest economic contributor followed by retail trade and the real 
estate sectors, with the exception of De Soto County where retail trade 
is the largest economic contributor. 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 2.--Economic Characteristics of the Eight Affected Counties in Florida--1997
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                    Services
                                                                                                                                    industry
                                                               Per capita    10 year                      10 year       Total       earnings
                                                                personal     rate of       Personal       rate of      industry       for       Percent
           Affected Florida counties              Employment     income       growth     income ($000)     growth      earnings    amusements   of total
                                                               (dollars)    (dollars)                    (dollars)      ($000)        and
                                                                                                                                   recreation
                                                                                                                                     ($000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 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       1,558,783          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
 Refuges:
    Brevard....................................      223,815      $22,205          3.7     $10,342,080          6.3   $6,225.354      $34,237        0.5
    Charlotte..................................       47,091       21,861          3.7       2,894,781          7.6      995,159       10,336        1.0
    De Soto....................................       11,977       18,968          5.2         469,998          6.3      251,421        1,644        0.7
    Lee........................................      196,448       25,568          4.4       9,862,900          7.3    4,848,936       61,103        1.3
    Sarasota...................................      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.

    The employment characteristics of the eight affected counties are 
shown on Table 3. The latest available published data for the total 
number of establishments in SIC (Standard Industrial Classification) 
codes 09, 44, 59, 79, services, and not classified is 1997. These SIC 
codes represent establishments providing products associated with 
fishing, hunting, trapping, water transportation, miscellaneous retail, 
services, amusement and recreation services 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 3, of the total 
number of establishments in these SIC codes, a large proportion employ 
less than nine employees with the largest number of establishments 
employing less than four employees. If there are any economic impacts 
associated with this rule, they will affect some proportion of these 
small entities. Since the bulk of the acreage designated (6,269.07 
acres) by this rule is for manatee refuges, which 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 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 manatee sanctuaries (64.03 acres), the restriction on 
human activity from November 15 to March 31 may cause some 
recreationists to go to alternative sites. The designated areas are 
relatively small and are part of large water bodies where there are 
large areas which do not restrict human activity. Recreationists 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 areas as manatee sanctuaries. Without a significant 
change in recreationist use patterns there should be an equally 
insignificant change in business activity.

[[Page 68472]]



      Table 3.--Employment Characteristics of the Eight Affected Counties in Florida--1997 (includes SIC codes 09, 44,59,79, services, and NCE) \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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sanctuaries:
    Citrus.................................................        8,926          1,281             807             244             120             110
    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
Refuges:
    Brevard................................................       65,049          5,292           3,145           1,075             581             491
    Charlotte..............................................       13,759          1,044             655             214              95              80
    De Soto................................................        4,648            186             121              38              18              10
    Lee....................................................       63,411          4,977           3,061             930             494             492
    Sarasota...............................................       73,819          5,125           3,231             936             473            485
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: http://govinfo.library.orst.edu/cgi-bin/reis-list.
\1\ SIC 09--Fishing, hunting, and trapping.
 SIC 44--Water transportation.
 SIC 59--Miscellaneous retail service divisions.
 SIC 79--Amusement and recreation services.
 NCE=non-classifiable establishments division.

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 because of speed restrictions in manatee refuge areas 
and seasonal or year-round closures in manatee sanctuaries, but this 
should not translate into any significant business reductions for the 
many small businesses in the eight affected counties. An unknown 
portion of the establishments shown on Table 3 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. It is unlikely that there are 
unforeseen changes in costs or prices for consumers stemming from this 
rule. The charter boat industry may be affected with lower speed limits 
for some areas when traveling to and from fishing grounds. Based on an 
analysis of public comment, further refinement of the impact on this 
industry may be possible. We believe that it is unlikely that reduced 
speed limits and seasonal closures 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 seasonal closures, but it is 
believed to be minor and will not interfere with the normal operation 
of businesses in the affected counties. 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, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

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

Federalism

    In accordance with Executive Order 13132, the 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.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the 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 recordkeeping 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

[[Page 68473]]

upon request by writing to the Field Supervisor (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 of this rule 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 either seasonally or completely avoid four 
areas (64.03 acres) or proceed at slow or idle speeds in 6,269.07 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 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 
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. Amend Sec.  17.108 as follows:
    a. Revise the introductory text of paragraph (a);
    b. Permanently designate the Kings Bay map at its current location 
following paragraph (a)(7) and revise the note to precede the map;
    c. Revise paragraphs (a)(8) through (a)(11);
    d. Revise paragraphs (b) and (c)(1) through (c)(5);
    e. Add paragraphs (c)(6) through (c)(11).
    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. All waterborne activities are prohibited in these 
areas during the period November 15-March 31 of each year. The areas 
which will be posted are described as follows:
* * * * *
    (7) * * *

    Note: Map for paragraphs (a)(1) through (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 spring run at the point 
where the run enters the northeast fork of the river along the 
southeastern shore and an area opposite this site along the southern 
shoreline; containing approximately 0.67 ha (1.66 acres). Map follows 
(see Blue Waters Manatee Sanctuary):
BILLING CODE 4310-55-P

[[Page 68474]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.020

    (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 northern shore of Weedon Island, encircling that 
point where the discharge enters receiving waters along the western 
shore of Old Tampa Bay; to be known as the Bartow Electric Generating 
Plant Manatee Sanctuary, containing approximately 12.07 ha (29.82 
acres). Map follows (see Bartow Electric Generating Plant Manatee 
Sanctuary):

[[Page 68475]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.021

    (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 12.08 ha (29.85 acres). Map follows (See TECO 
Big Bend Manatee Sanctuary):

[[Page 68476]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.022

    (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 (see Port 
Sutton Manatee Sanctuary):

[[Page 68477]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.023

    (b) Exceptions--(1) Exception for residents adjoining the areas 
described in paragraphs (a)(1) through (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) through (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) * * *
    (1) The Barge Canal Manatee Refuge. (i) The Barge Canal Manatee 
Refuge is described as all waters lying within the banks of the Barge 
Canal, Brevard County, Florida, 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 Refuge.
    (iii) Map of the Barge Canal Manatee Refuge follows:

[[Page 68478]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.024

    (2) The Sykes Creek Manatee Refuge. (i) The Sykes Creek Manatee 
Refuge is described as all waters, including the marked channel in 
Sykes Creek, Brevard County, Florida. 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 Refuge.
    (iii) Map of the Sykes Creek Manatee Refuge follows:

[[Page 68479]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.025

    (3) 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 89.35 ha (220.79 
acres).
    (ii) Watercraft are required to operate at idle speed from November 
15 through March 31. Watercraft are prohibited from operating at speeds 
greater than idle speed from November 15 through March 31, inclusive.
    (iii) Map of the Tampa Electric Company's Big Bend Manatee Refuge 
follows (see TECO Big Bend Manatee Refuge):

[[Page 68480]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.026

    (4) 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 November 
15 through March 31, inclusive. Watercraft are prohibited from 
operating at speeds greater than idle speed from November 15 through 
March 31, inclusive.
    (iii) Map of Port Sutton Manatee Refuge follows (see Port Sutton 
Manatee Refuge):

[[Page 68481]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.027

    (iv) Map showing the relative locations of the Bartow, TECO Big 
Bend, and Port Sutton areas of Tampa Bay follows (see Tampa Bay Manatee 
Sanctuaries and Refuges):

[[Page 68482]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.028

    (5) The Pansy Bayou Manatee Refuge. (i) The Pansy Bayou Manatee 
Refuge is described as that portion of Sarasota Bay, Sarasota County, 
Florida, lying northwesterly of a line 45.7 meters (150 feet) 
northwesterly of and parallel with a line perpendicular to the John 
Ringling Parkway Bridge connecting St. Armands Key to City Island from 
the northwesterly end of said bridge, southwesterly of a line 228.6 
meters (750 feet) northeasterly of and parallel with the centerline of 
the John Ringling Parkway (running northwesterly from St. Armands Key), 
northwesterly of a line 320 meters (1,050 feet) northwesterly of and 
parallel with a line perpendicular to the aforementioned John Ringling 
Parkway Bridge connecting St. Armands Key to City Island from the 
northwesterly end of said bridge, and southwesterly of a line 990.6 
meters (3,250 feet) northeasterly of and parallel with the centerline 
of the aforementioned John Ringling Parkway (running Northwesterly from 
St. Armands Key); containing approximately 47 ha (116.1 acres).
    (ii) Watercraft are required to proceed at slow speed year-round. 
Watercraft are prohibited from operating in excess of slow speed 
throughout the year in this area.
    (iii) Map of the Pansy Bayou Manatee Refuge follows (See Pansy 
Bayou Manatee Refuge):

[[Page 68483]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.029

    (6) The Little Sarasota Bay Manatee Refuge. (i) The Little Sarasota 
Bay Manatee Refuge is described as those waters lying southerly of a 
line that bears north 90 degrees 00'00'' E (true) and runs through the 
southerly tip of the first unnamed island south of Red Intracoastal 
Waterway Channel Marker ``40'' (latitude 27 degrees 10' 07'' N, 
longitude 82 degrees 30' 05'' W) and those waters lying northerly of 
the Blackburn Point Bridge, Sarasota County, Florida; containing 
approximately 214.2 ha (529.40 acres).
    (ii) Watercraft are required to proceed at slow speed, 40 
kilometers per hour (25 miles per hour) within the channel, year-round. 
Watercraft are prohibited from operating in excess of slow speed 
outside of the channel and operating at speeds in excess of 40 
kilometers per hour (25 miles per hour) within the channel, year-round.
    (iii) Map of the Little Sarasota Bay Manatee Refuge follows (see 
Little Sarasota Bay Manatee Refuge):

[[Page 68484]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.030

    (7) The Lemon Bay Manatee Refuge. (i) The Lemon Bay Manatee Refuge 
is described as those waters of Lemon Bay lying south of the Sarasota/
Charlotte County, Florida, boundary and north of a line north 60 
degrees 14'00'' E (true) parallel with a series of small islands 
approximately 1.6 kilometer (1 mile) south of the Bay Road Bridge; 
containing approximately 383.61 ha (948.06 acres).
    (ii) Watercraft are required to proceed at slow speed, 40 
kilometers per hour (25 miles per hour) within the channel, year-round. 
Watercraft are prohibited from operating in excess of slow speed 
outside of the channel and operating at speeds in excess of 40 
kilometers per hour (25 miles per hour) within the channel, year-round.
    (iii) Map of the Lemon Bay Manatee Refuge follows (see Lemon Bay 
Manatee Refuge):

[[Page 68485]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.031

    (8) The Peace River Manatee Refuge. (i) The Peace River Manatee 
Refuge is described as all waters of the Peace River and certain 
associated water bodies north and east of the U.S. Highway 41, 
Charlotte and De Soto Counties, Florida; containing approximately 
1.698.11 ha (4,196.11 acres).
    (ii) In the Peace River in Charlotte County, watercraft are 
required to travel at slow speed within a posted shoreline buffer 
between the US Highway 41 and I-75 bridges. The buffer is approximately 
300 meters (1,000 feet) from shore except in a slightly larger area 
north and west of I-75 to be consistent with recently adopted Florida 
Fish and Wildlife Conservation Commission's regulations. Watercraft are 
allowed to travel at a maximum speed of 40 kilometers per hour (25 
miles per hour) year-round outside the buffer. Watercraft are 
prohibited from traveling in excess of slow speed within the posted 
shoreline buffer between the U.S. Highway 41 and I-75 bridges and are 
further prohibited from operating in excess of 40 kilometers per hour 
(25 miles per hour) outside the buffer throughout the year.
    (iii) In the Peace River within Charlotte County and upstream of I-
75 to red channel marker ``14,'' watercraft are required to travel at 
slow speed outside of the marked navigation channel. Watercraft are 
allowed to travel at a maximum speed of 40 kilometers per hour (25 
miles per hour) year-round inside the marked navigation channel. 
Watercraft are prohibited from traveling in excess of slow speed in 
areas outside of the navigation channel and are further prohibited from 
traveling in excess of 40 kilometers per hour (25 miles per hour) 
inside the marked navigation channel, year-round.
    (iv) In the waters of the Peace River in Charlotte and De Soto 
Counties upstream of red channel marker ``14,'' watercraft are allowed 
to travel at a maximum speed of 40 kilometers per hour (25 miles per 
hour) year-round. Watercraft are prohibited from traveling in excess of 
40 kilometers per hour (25 miles per hour), year-round, in this area.
    (v) Within the waters of Jim Long Lake and Hunter Creek in 
Charlotte and De Soto Counties, watercraft are required to travel at 
slow speed year-round. Watercraft are prohibited from traveling in 
excess of slow speed in this area, year-round.
    (vi) Within the waters of Deep Creek in Charlotte and De Soto 
Counties, watercraft are required to travel at slow speed year-round. 
Watercraft are prohibited from traveling in excess of slow speed in 
this area, year-round.
    (vii) Within the waters of Shell Creek in Charlotte County, 
watercraft are

[[Page 68486]]

required to travel at slow speed year-round with the following 
exception. Should a U.S. Coast Guard or State of Florida approved 
marked navigation channel be established in that portion of Shell Creek 
approximately 1.6 kilometers (1 mile) downstream of the Seaboard 
Railroad trestles, watercraft will be allowed to travel at a maximum 
speed of 40 kilometers per hour (25 miles per hour) in this section of 
Shell Creek upon posting by the Fish and Wildlife Service or the 
Florida Fish and Wildlife Conservation Commission. Watercraft are 
prohibited from traveling in excess of slow speed in this area, year-
round.
    (viii) Map of the Peace River Manatee Refuge follows (see Peace 
River Manatee Refuge):
[GRAPHIC] [TIFF OMITTED] TR08NO02.032

    (9) The Shell Island Manatee Refuge. (i) The Shell Island Manatee 
Refuge is described as all waters within the marked Intracoastal 
Waterway channel between Green Marker ``99'' (approximate latitude 26 
degrees 31'00'' N, approximate longitude 82 degrees 00'52'' W) and 
Green Marker ``93'' (approximate latitude 26 degrees 31'37'' N, 
approximate longitude 81 degrees 59'46'' W), Lee County, Florida; 
containing approximately 32.6 ha (80.5 acres).
    (ii) Watercraft are required to proceed at slow speed (channel 
included) year-round. Watercraft are prohibited from traveling in 
excess of slow speed in this area, year-round.
    (iii) Map of the Shell Island Manatee Refuge follows (see Shell 
Island Manatee Refuge):

[[Page 68487]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.033

    (10) The Haulover Canal Manatee Refuge. (i) The Haulover Canal 
Manatee Refuge is described as all waters lying within Haulover Canal 
in Brevard County, Florida; containing approximately 8.95 ha (22.11 
acres).
    (ii) Watercraft are required to proceed at slow speed (channel 
included) year-round. Watercraft are prohibited from traveling in 
excess of slow speed in this area, year-round.
    (iii) Map of the Haulover Canal Manatee Refuge follows (see 
Haulover Canal Manatee Refuge):

[[Page 68488]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.034

    (11) The Cocoa Beach Manatee Refuge. (i) The Cocoa Beach Manatee 
Refuge is described as the waterbody west of Municipal Park within the 
City of Cocoa Beach, Florida, commencing at a point 45.7 meters (150 
feet) west of the southwest corner of the canal running between Willow 
Green and Country Club Roads, thence southerly (and parallel to the 
golf course shoreline) to a point 45.7 meters (150 feet) west of the 
southwest corner of the Municipal Golf Course shoreline, thence south 
to marker ``502,'' thence westerly (inclusive of the area known as the 
``400 Channel'') to Red marker ``500,'' thence northerly to Red marker 
``309,'' inclusive of the ``400 Channel,'' thence southeasterly to the 
southwest corner of the canal referenced as the point of origin, all 
these waters being within the eastern half of Sections 8 and 17, 
Township 25 South, Range 37 East; containing approximately 23.9 ha 
(59.1 acres).
    (ii) Watercraft are required to proceed at slow speed (channel 
included) year-round. Watercraft are prohibited from traveling in 
excess of slow speed in this area, year-round.
    (iii) Map of the Cocoa Beach Manatee Refuge follows (see Cocoa 
Beach Manatee Refuge):

[[Page 68489]]

[GRAPHIC] [TIFF OMITTED] TR08NO02.035


    Dated: October 31, 2002.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-28278 Filed 11-5-02; 9:57 am]
BILLING CODE 4310-55-C