North Florida Field Office Final Designation of Three Federal Manatee Protection Areas in five Florida counties

PDF Version - 1.85 MB

[Federal Register: August 6, 2003 (Volume 68, Number 151)]
[Rules and Regulations]
[Page 46869-46917]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au03-29]

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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; Establishment of Three
Additional Manatee Protection Areas in Florida; Final Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ06

Endangered and Threatened Wildlife and Plants; Establishment of Three 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), establish three 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 preventing the taking of one or more manatees. We are designating areas in Lee, Duval, Clay, St. Johns, and Volusia counties as manatee refuges in which certain waterborne activities will be regulated. Specifically, watercraft will be required to operate at either slow speed or not more than 40 kilometers per hour (km/h) (25 miles per hour) in areas described in the rule. We also announce the availability of a final environmental assessment for this action.

DATES: Effective date: This rule is effective September 5, 2003.

Compliance date: Mandatory compliance with this rule will occur when appropriate signage has been installed in the regulated areas.

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, Stefanie Barrett, or Jim Valade (see ADDRESSES section), telephone 904/232-2580; or visit our Web site at http://www.fws.gov/northflorida.

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 native 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 use the waters of 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 that there are four relatively distinct regional populations of manatees in Florida--(a) The Northwest Region, along the Gulf of Mexico from Escambia County east and south to Hernando County; (b) the Upper St. Johns River Region, consisting of Putnam County from Palatka south to Lake and Seminole counties; (c) the Atlantic Region, consisting of counties along the Atlantic coast from Nassau County south to Miami-Dade County and that portion of Monroe County adjacent to the Florida Bay and the Florida Keys; and counties along the lower portion of the St. Johns River north of Palatka, including Putnam, St. Johns, Clay and Duval counties; and (d) the Southwest Region, consisting of counties along the Gulf of Mexico from Pasco County south to Whitewater Bay in Monroe County. We have concluded that these groups meet the criteria for designation as separate stocks, per the MMPA (67 FR 69081, November 14, 2002).

Despite significant efforts dating back to the late 1970s and 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). 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 stocks, available evidence indicated that there had been a steady increase in animals over the last 25 years. The statement was less optimistic for the Atlantic Stock 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 then may have leveled off or even possibly declined. They considered the status of the Atlantic Stock to be "too close to call." This finding was consistent with high levels of human-related and, in some years, cold-related deaths in this Stock. Regarding the Southwest Stock, 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 Stock was similar to the Atlantic Stock and "substantially lower than [the adult survival estimates] for the Northwest and Upper St. Johns Regions." The Southwest Stock 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 stocks are approaching demographic benchmarks established in the Florida Manatee Recovery Plan (Service, 2001) for reclassification from endangered to threatened status. We also believe that the Atlantic Stock is relatively close to meeting the downlisting benchmark for adult survival, and is close to meeting or exceeding other demographic criteria. We are less optimistic, however, regarding the Southwest Stock. Although data are still insufficient or lacking to compare the Southwest Stock's status to the downlisting/delisting criteria, preliminary data for adult survival and modeling results indicate that this stock is below the benchmarks established in the recovery plan, and may be experiencing a population decline.

Although we are optimistic about the potential for recovery in two 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). In addition to meeting the demographic criteria established in the recovery plan, in order for us to determine that an endangered species

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has recovered to a point that it warrants reclassification to threatened or removal from the List of Endangered and Threatened Wildlife and Plants, the species' status must have improved to the point at which the current classification is no longer appropriate under the threat-based listing factors 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 definition of endangered, if reclassifying to threatened, or threatened, for delisting. While suggestions of increasing manatee 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. Accordingly, the Third Revision of the Florida Manatee Recovery Plan (Service, 2001) establishes criteria for downlisting and delisting the Florida manatee under the relevant threat factors in section 4(a)(1) of the ESA. 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 result of residential growth and increased visitation in this region. This phenomenon is particularly evident in the State of Florida. The human population of Florida has grown by 146 percent since 1970, from 6.8 million to 16.7 million residents (U.S. Census Bureau, 2003), and is expected to exceed 18 million by 2010, and 20 million by 2020. According to a report by the Florida Office of Economic and Demographic Research (2000), it is expected that, by 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 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 2002, 961,719 vessels were registered in the State of Florida (Florida Division of Highway Safety and Motor Vehicles, 2003). This represents an increase of 59 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 cause direct and indirect effects to manatees. Direct effects include injuries and deaths from watercraft collisions, deaths from water control structure operations, lethal and sublethal entanglements with recreational and commercial fishing gear, and alterations of behavior due to harassment. Indirect effects can result from habitat alteration and destruction, such 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.

The number of watercraft-related deaths each year continues to rise. The following is an excerpt from an analysis conducted by the U.S. Geological Survey's Biological Resources Division (USGS-BRD) for our recent efforts to promulgate incidental take regulations for manatees pursuant to the MMPA. "There has been an increasing trend in watercraft-related mortality in all four stocks over the past decade. This is reflected in increases in the average annual number of watercraft-related mortalities as the period over which the average is taken becomes more recent. For instance, in the Atlantic Stock, the mean observed mortality due to watercraft was 25.8 per year for the period 1990 to 1999, 29.8 per year for the period 1993 to 2002, and 37.0 per year for the most recent 5-year period. This trend is statistically significant in all four stocks. The slope of the increase (as fit to the period 1992 to 2002) does not differ between the Upper St. Johns and Northwest stocks (5.96 percent), nor does it differ between the Atlantic and Southwest regions (9.53 percent). To interpret these rates of increase, however, it is important to compare them to the historic growth rates (1990 to 1999) in each stock, to account for the increase in watercraft-related mortalities that would be expected due to increases in manatee population size. In the Atlantic and Southwest stocks, the rate of increase in watercraft-related mortality over that period far outstripped the estimated growth rate of those populations (by 8.5 percent in the Atlantic and 10.6 percent in the Southwest). In the Northwest stock, the rate of increase in mortality (6.0 percent) is somewhat larger than the estimated growth rate (3.6 percent). In the Upper St. John's stock, the increase in boat-related mortality can be completely explained by the estimated increase in the population size.

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). From 1976 to 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 any cause, including 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

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corresponding change in the rate of population growth or decline (Marmontel et al., 1997). Accordingly, the Service is continuing to assess, and take steps to reduce, significant causes of mortality to manatees.

Collisions with watercraft are the largest cause of human-related manatee deaths. Data collected during manatee carcass salvage operations in Florida indicate that 1,145 manatees (from a total carcass count of 4,545) are confirmed victims of collisions with watercraft (1978 to 2002). 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 and because not all carcasses are found. 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 Fish and Wildlife Commission's (FWCC) Florida Marine Research Institute (FMRI) Manatee Mortality Database, 2003). The last 5 years have been record high years for the number of watercraft-related mortalities.

The second largest cause of human-related manatee mortality is entrapment in water control structures and navigation locks (FWCC: FMRI Manatee Mortality Database, 2003). 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 164 manatee deaths from 1978 to 2002, or approximately 4 percent of all deaths during this period. 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 deaths 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 124 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 from 1998 to 2002 (an average of 8 deaths per year over the last 5 years).

Manatee Protection Areas

To minimize the number of injuries and deaths associated with watercraft activities, we and the State of Florida have designated manatee protection areas at sites throughout coastal Florida where conflicts between boats and manatees have been well documented and where manatees are known to frequently occur. These areas include posted signs to inform the boating public about restrictions and prohibitions. We are enhancing existing protection by establishing three additional manatee refuges in five Florida counties.

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 substantial evidence shows such establishment is necessary to prevent the taking of one or more manatees (that is, to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct). 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 area--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.

Relationship to Manatee Lawsuit

On January 13, 2000, several organizations and individuals filed suit against the Service and the U.S. Army Corps of Engineers alleging violations of the ESA, the MMPA, the National Environmental Policy Act, and the Administrative Procedure Act. Four groups representing development and boating interests intervened. Following extensive negotiations, the suit was resolved by a Settlement Agreement dated January 5, 2001. On October 24, 2001, the plaintiffs filed a Formal Notice of Controversy alleging that the Service had violated provisions of the Settlement Agreement. On April 17, 2002, the plaintiffs filed an Expedited Motion to enforce the Settlement Agreement, and on July 9, 2002, the Court found that the Service had not fulfilled its settlement requirements to designate refuges and sanctuaries throughout peninsular Florida. On August 1, 2002, and November 7, 2002, the Court ordered the Federal defendants to show cause why they should not be held in contempt for violating the Court's orders of January 5, 2002, January 17, 2002, and August 1, 2002. To resolve these controversies, the plaintiffs and Federal defendants entered into a Stipulated Order wherein we agreed to submit to the Federal Register for publication a proposed rule for the designation of the additional manatee protection areas in the Caloosahatchee River in Lee County; the lower St. Johns River in Duval, St. Johns, and Clay Counties; and the Halifax and Tomoka Rivers in Volusia County, on or before March 31, 2003, and a final decision on the proposed rule on or before July 31, 2003. The proposed rule was submitted to the Federal Register on March 31, 2003, and published on April 4, 2003 (68 FR 16602). This notice constitutes the final rule and was submitted to the Federal Register on July 31, 2003.

Site Selection Process and Criteria

In order to establish a site as a manatee protection area, we must determine that substantial evidence shows such establishment is necessary to prevent the take of one or more manatees. We reviewed the sites referenced in the Stipulated Order and determined that the proposed sites met this test. This was based on aerial survey and telemetry data, mortality (carcass recovery) data, additional information from FMRI and the U.S. Geological Survey's Sirenia Project, manatee experts, and our best professional judgment. The areas designated in this final rulemaking are those that we have determined, based on the best currently available data and the public comments received, should be designated as manatee refuges. Where the final designations differ from

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the proposal, we have determined that either alternative or existing measures are sufficient to protect manatees (see "Summary of Comments and Recommendations" and "Summary of Changes From the Proposed Rule" below).

Effective Date

This rule is effective 30 days after the date of this publication and once the manatee protection areas are marked and posted.

Definitions

The following terms are defined in 50 CFR 17.108. We present them here to aid in understanding this rule.

Planning 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 plowing or creating an excessive wake. Exceptions to slow speed restrictions are contained in 50 CFR 17.105 and include activities "* * * 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".

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 (although the channel may also have a higher posted speed limit). Exceptions to slow speed restrictions are contained in 50 CFR 17.105 and include activities "* * * 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".

Slow speed (channel included) means that the slow-speed designation applies to the entire marked area, including within the designated channel. Exceptions to slow speed restrictions are contained in 50 CFR 17.105 and include activities "* * * 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".

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.

Summary of Comments and Recommendations

In the April 4, 2003, proposed rule (68 FR 16602), we requested all interested parties to submit factual reports or information that might contribute to the development of a final rule. We published legal notices announcing the proposal, inviting public comment, and announcing the schedule for public hearings, in the Fort Myers News-Press, Daytona Beach News-Journal, Naples Daily News, Orlando Sentinel, Charlotte Sun-Herald, Sarasota Herald-Tribune, Florida Times-Union, St. Augustine Record, and Clay Today. We held the public hearings at the Harborside Convention Hall in Fort Myers, Florida, on May 13, 2003; the Ocean Center in Daytona Beach, Florida, on May 14, 2003; and at the University Center, University of North Florida, in Jacksonville, Florida, on May 15, 2003. Approximately 3,325 people attended the public hearings. We received oral comments from 203 individuals. The comment period closed on June 3, 2003.

In addition to soliciting comments from the public, we solicited peer review comments from three independent experts in manatee ecology, boating activity, and waterway regulation, from The Ocean Conservancy, Mote Marine Laboratories, and the United States Coast Guard, respectively. Their comments and our responses are summarized below.

During the comment period, we received approximately 5,931 written and oral comments concerning the proposal. Most were form letters expressing support for the proposed designation; however, most substantive comments expressed concern or opposition to the proposed action. The following is a summary of the comments received and our responses. Comments of a similar nature have been grouped together.

Comment 1: Several commentors, including the FWCC, suggested that the Service does not have the resources to enforce these additional zones. They are concerned that lack of enforcement will result in the new zones being less protective than the existing zones. The FWCC also expressed concern that, in areas where Federal and State speed zones overlap, enforcement by State law enforcement officers may be complicated.

Response 1: We are fully committed to implementing these protection areas, including enforcement of these areas upon posting. However, we are very aware of the fact that compliance is critical to the effectiveness of manatee protection area regulations and that compliance is facilitated, in large part, by enforcement. We are also aware that enforcement resources are limited at all levels of government, and that cooperation among law enforcement agencies is needed to maximize effectiveness of limited resources. We know that State and local law enforcement agencies have many enforcement mandates in addition to manatee protection and that it may be difficult for these agencies to make enforcement of Federal manatee protection areas a high priority, particularly if they do not agree that the Federal designations are necessary or appropriate.

We believe that local and State law enforcement improves compliance with Federal designations and leads to more effective Federal rules. The final rule has been designed to reflect the best available information regarding manatee and boating use of these waters, and was also intended to address (to the extent possible) State and local concerns regarding the proposed rule. We have attempted to make our designations consistent with existing regulations, where possible, in order to minimize the boating public's confusion and facilitate signage, enforcement, and compliance, while ensuring appropriate protection for manatees.

Comment 2: Several commentors believe that adoption of new zones at this time is premature. The FWCC stated that they are currently studying the zones in Lee and Duval Counties and are currently collecting new data in Volusia County. Their report on Duval County is expected in November 2003. The new data collection from Volusia County is expected to be completed in June 2004.

Response 2: We have concluded that the actions identified in the final rule are warranted and prudent to undertake at this time, and that sufficient information is currently available to

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support these designations. We recognize and support efforts to continually evaluate and improve information regarding manatee distribution and habitat use, boating activity, and the effectiveness of existing regulations. But we also know perfect information will never be available to definitively address all the issues that are raised by such rulemakings. We have attempted to design this final rule to address issues that we believe are necessary and appropriate to address at this time, without hindering the State's ability to make additional changes as needed in the future. In some areas there is considerable overlap between our final designations, existing State regulations, and FWCC regulatory actions anticipated in the near future (e.g., the Halifax River). We are committed to working with the FWCC to make necessary changes through the rulemaking process at that time to our manatee protection areas to ensure consistency with State designations as long as manatee protection is not compromised. If changes are beneficial and/or necessary, we may initiate concurrent rulemaking with the FWCC to ensure consistency with State-designated zones to meet this goal.

Comment 3: Several commentors believe that implementation of Federal zones that are not consistent with the existing FWCC zones will confuse boaters, reduce compliance, and delay dissemination of educational material.

Response 3: We have made our final designations as consistent as possible with existing regulations, in order to minimize boater confusion and enhance compliance while ensuring appropriate protection for manatees. We recognize that, in those areas where these Federal designations represent considerable changes to the existing regulations, educational material specific to those areas will need to be updated.

Comment 4: The FWCC and other commentors believe that the Service could improve existing zones by providing funds for improved signage of existing manatee protection zones.

Response 4: Appropriate signage is critical to effective implementation of manatee protection areas. For example, we have long identified the inadequacy of the signage of the current State manatee protection zone on the St. Johns River as the primary deficiency of the existing regulations in this area. Establishment of Federal manatee protection areas will make it easier for us to devote Federal funding to signage in the areas designated.

Comment 5: The FWCC and other commentors also believe that the Service should/could have used funds spent on new rules to increase Federal enforcement of existing manatee protection zones.

Response 5: We agree that, in general, enforcement of existing manatee protection areas can be more cost effective than establishment of new areas. However, when substantial evidence shows that establishment of a manatee protection area is necessary to prevent the taking of one or more manatees then designation of a manatee protection area may be a proper course of action for us to take. Such a situation exists for the areas designated by this rule. Notwithstanding this determination, we would like to emphasize that we have increased our efforts to enforce existing Federal and State manatee protection areas.

Comment 6: Although they do not necessarily recommend it, the FWCC commented that, as an alternative to the proposed rule, the Service could adopt existing State zones, thereby eliminating any conflict between sign posting and enforcement issues. Further, adopting the existing State zones as Federal zones may provide more security to the zones by making legal challenges to the zones more difficult to mount.

Response 6: In some cases we did this, but in some cases we believe that adoption of existing State zones would hinder State efforts to modify zones in the future, and in some cases we believed that additional protection for manatees is needed at this time.

Comment 7: One peer reviewer noted that any manatee protection area with either a channel exempt, 25 mph in the channel, or shoreline buffer designation should, in general, result in minimal impact to recreational boating (the reviewer acknowledges that recreational boating activity varies widely from location to location, and some areas, as well as some commercial activities, may be more significantly impacted than others). According to the peer reviewer's studies, a vast majority of recreational boat traffic is already traveling between 20 and 30 mph. Additionally, very few hull designs are not capable of achieving and maintaining planing speed at 25 mph. Therefore, slow-speed, channel exempt (or 25 mph in the channel) seems to be a reasonably effective management alternative in areas where manatee use is well documented and there is a well defined, marked channel.

Response 7: We agree with this assessment, and as such believe that our final designations should result in minimal adverse impacts on the boating public, except in those limited areas in which high-speed travel was previously allowed.

Comment 8: One commentor stated that our proposed rule "makes clear that there is a far more compelling basis for designating these areas as refuges than existed for some of the other protected areas recently created by the Service."

Response 8: In our previous rulemakings (finalized in 2002) (67 FR 680-696 and 67 FR 68450-68489), we established four criteria for selecting Federal manatee protection areas. The sites addressed in this final rule were evaluated against those criteria during the previous rulemaking. They were not selected because in 2002 we concluded that, due to the earlier commitment of our limited resources to higher priority sites, we could not enact adequate protection measures at these sites and/or the State or local agencies were in a better position to address concerns at these sites. Per the Stipulated Order, we made a commitment to reevaluate these sites. As a result of this reevaluation we have concluded that Federal action is warranted at portions of these sites at this time, and that we now have the capability to implement these actions. Additionally, new information, such as FMRI's 2002 Caloosahatchee River study, was not available during the 2002 rulemaking. Specifically, the study showed significant manatee use of the Redfish Point area of the river and that manatees were likely crossing the river at this point, as opposed to confining most of their movement to shoreline habitat as they appear to do in most of the Caloosahatchee River. We do not agree with the commentor that these designations are more important to manatee conservation than previous Service actions.

Comment 9: One commentor noted that the Service stated in the March 18, 2003, Stipulated Order and the proposed rule that these zones were justified.

Response 9: It is correct to say that we had determined that portions of these three large areas met the criteria for designation as manatee protection areas. The proposed rule depicts the maximum extent of actions that were determined to be potentially warranted through the preliminary review conducted during the negotiations regarding the Stipulated Order. We put these sites out to the public as a proposed rule in order to collect information and data and have modified the designations in this final rule to reflect that analysis.

Comment 10: One commentor stated that the Service "could refrain from adopting the refuges only by demonstrating that scientific data not previously available to the agency has

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somehow eliminated the need for the refuges."

Response 10: We disagree with the commentor. The Service would not have agreed to propose the manatee protection if we did not believe that substantial evidence shows such establishment is necessary to prevent the taking of one or more manatees. Nevertheless, our agreement in the Stipulated Order to propose the protection areas was "based on the current best available data" (Stipulation, ] 1) and the Service "retain[ed] its discretion consistent with the Administrative Procedure Act in reaching its final decision with respect to [the] manatee protection areas." (Stipulation, ] 2) Numerous management options are available to improve manatee protection, and we could have concluded, after receiving input from the interested parties, the State, and other concerned citizens, that one of these other options would be more effective in protecting manatees in these areas.

Designation of manatee protection areas involves both scientific and practical considerations. This final rule reflects the results of in-depth analysis of the areas, including careful evaluation of manatee and watercraft use information, site visits, coordination with State and local regulatory experts, and review of public comments. This review revealed aspects of the available scientific information that were not fully considered during the development of the proposed rule, as well as many practical considerations that were not factored into the original analysis.

Comment 11: Peer review comments from the U.S. Coast Guard stated that speed limit requirements (i.e., 25-mph maximum allowable speed) are not enforceable by the Coast Guard as they do not have the equipment or training necessary to determine the speed of a vessel.

Response 11: Our Division of Law Enforcement believes that a specific speed limit (e.g., 25 mph) is enforceable. Additionally, we have adopted a 25-mph speed limit in several areas in order to be consistent with State regulations. In our view, this will improve manatee protection in these areas by enhancing public understanding and compliance.

Comment 12: Peer review comments from the U.S. Coast Guard stated that slow speed areas will be enforceable if zones are clearly and adequately marked. Otherwise, it will be difficult for enforcement officers to document cases based on distance judgments.

Response 12: We concur with the reviewer's comment. We intend to design and implement sign plans that will clearly and effectively mark the new manatee protection areas to facilitate public understanding and compliance, as well as ensure the enforceability of the zones. Additionally, we intend to work with State and local agencies to enforce these zones.

Comment 13: One peer reviewer concurred with the following assumptions of this proposed rule--(1) information on the existence of four subpopulations; (2) the difficulty of reliably monitoring trends in the overall population; (3) the problems associated with using uncalibrated indices based on maximum counts at winter refuges; and (4) the lack of utility and reliability of uncorrected counts as a basis for assessing population estimates or measuring trends in the population. These assumptions "reflect the views of [the] manatee scientific community, including the consensus of the 2002 Manatee Population and Ecology Workshop panel of experts."

Response 13: Comment noted.

Comment 14: One peer reviewer stated that assessments, such as the determination that the Atlantic and Southwest stocks are less stable than the Crystal River (i.e., Northwest) and St. Johns River stocks, are supported by available scientific data. These assessments indicate that the Atlantic and Southwest stocks require additional management and conservation efforts.

Response 14: We concur with the reviewer regarding the need for additional management and conservation efforts in the Atlantic and Southwest stocks. We believe it is important to note that management and conservation efforts include a variety of options to improve or provide additional protection for manatees, such as enforcement, education, and improving the signage of existing zones. The designation of manatee protection areas is only one of those options and may not be the most beneficial or appropriate management/conservation tool in some areas or situations.

Comment 15: One peer reviewer noted that the current status of manatee populations within the Atlantic and Southwest stocks, while not critical or in imminent danger at this time, indicates that additional management and protection is warranted to expedite recovery and to put safeguards in place as the human population in Florida continues to grow. The reviewer concurs with the Service's assessment that "* * * 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 * * *" (68 FR 16604). With the anticipated continued human population growth and development of Florida and the recent increase in human-related manatee mortality, especially from collision with watercraft, there is cause for concern relative to manatee adult survival and species recovery. The need for additional manatee protection areas is underscored by these facts.

Response 15: We concur with the reviewer regarding the status of the manatees in the Atlantic and Southwest stocks. The Caloosahatchee River-San Carlos Bay Manatee Refuge is located within the range of the Southwest Stock while the Lower St. Johns River Manatee Refuge and Halifax and Tomoka Rivers Manatee Refuge are both located within the range of the Atlantic Stock. As noted above, a variety of management and conservation options, in addition to or in lieu of manatee protection areas, can and should be explored to improve the status of these stocks.

Comment 16: One peer reviewer stated that further explanation was needed regarding the Service's assumption that designation of "manatee protection areas at sites * * * where conflicts between boats and manatees have been well documented" should "minimize the number of injuries and deaths associated with watercraft activities" (68 FR 16605). While the reviewer agrees with this assumption, she believes that a scientific basis for this assertion would better justify the rationale for designating manatee protection areas to minimize death and injury (for example, work by Mote Marine Laboratory and Brad Weigle using tethered and manned airships, respectively, and at the very least, anecdotal information from manatee researchers regarding manatee response to watercraft).

Response 16: We concur. The reviewer is correct in that, while no empirical studies specifically address this assumption, researchers have documented manatee response to oncoming boats. Manatee response to boats at distances of approximately 100 meters (328 feet) was documented in a study conducted in 1994 (Weigle et al., 1994). Boat speeds during these response trials varied between slow speed and 48 km/h (30 mph). While no specific behavior was observed for each speed trial, researchers observed that bottom-resting manatees did not respond to oncoming boats and that manatees observed surface resting or

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observed in shallows all responded to the presence of approaching boats. A study conducted from 1999 to 2000 documented manatee response to random boat traffic (Nowacek et al., 2000). In each observation, manatees responded either by accelerating, turning, or moving toward or into a nearby channel when approached by boats.

Studies further addressed response times (Wells et al., 1999). "At an average initial response distance of 20 meters, the animal has less than two seconds to respond to a planing vessel and about seven seconds to respond to a vessel approaching at slow speed" (Wells et al., 1999). Based on these observations, it is apparent that manatees will respond to the presence of oncoming boats and that their ability to successfully do so is predicated on the speed of the oncoming boat. As such, protection areas that regulate boat speeds should minimize the incidence of manatee-boat encounters and, thereby, "the number of injuries and deaths associated with watercraft activities."

Comment 17: One peer reviewer believes the section on "Relationship to Manatee Lawsuit" is distracting to the overall intent of the rule, unless there is a legal requirement for its inclusion.

Response 17: The comment is noted; however, we believe it is important for the public to be aware of the lawsuit.

Comment 18: One peer reviewer suggested the addition of scale bars to the maps.

Response 18: The final maps have been revised accordingly.

Comment 19: One peer reviewer believed it would strengthen the rule and the Service's position to include a timeframe on which the requirement of "preventing the take of one or more manatees" is based.

Response 19: The only specific reference to a timeframe in our manatee protection area regulations is in regard to establishment on an emergency basis if the anticipated taking is "imminent" (50 CFR 17.106). That said, our regulations state that the establishment of manatee protection areas may occur if there is "substantial evidence" that the action is necessary to prevent the taking of one or more manatees. While not specific, this phrase strongly implies that there is a proximate connection between our action (establishment of a manatee protection area) and the result (prevention of take). We interpret this to mean that action may be warranted in those areas where take is documented and ongoing with sufficient regularity to indicate that it is likely to continue in the near future unless appropriate action is taken. In other words, our manatee protection area designations are intended to prevent take that we expect may occur in the near future in the absence of such regulations.

Comment 20: Several commentors suggest that the existing State and Federal zones on the Caloosahatchee are relatively new, and have so far been effective. Many of these commentors speculate that past manatee watercraft-related mortalities may have been related to fuel barges traveling the river to the power plant. These operations have now been greatly reduced.

Response 20: Our analysis indicates that the existing zones in the Caloosahatchee River do in fact provide appropriate protection over most of the areas on the river where manatees and watercraft are likely to interact. Our final designation has targeted those areas of the river and San Carlos Bay where the best available information indicates that the existing zones do not adequately protect manatees from high-speed collisions. Additionally, our adoption of the existing shoreline buffer zones will enable us to devote Federal funds to improving signage and enforcement.

Comment 21: One commentor noted that the most recently documented compliance rates on the Caloosahatchee River are low. The commentor cited this as evidence that the existing regulations are inadequate. Further, the commentor stated that Lee County boater compliance studies indicate the majority of boaters travel outside speed-restricted areas. The commentor concluded from this that manatees are being killed outside the existing zones and that the existing zones are therefore inadequate.

Response 21: The commentor does not indicate what percentage this "majority" comprises, or the level of boat traffic within the existing speed zones. Neither does the commentor mention that, while it is true that vessels navigating the Caloosahatchee River spend most of their time in the unregulated center of the river, all vessels navigating this river must pass through regulated waters at some point in their journey. Therefore, the statement is misleading. When the fact that all vessels on the river must travel through manatee speed zones is combined with the above-noted low levels of historic compliance, it is clear that this high volume of (noncompliant) high-speed vessel traffic in existing zones is the most likely contributing factor to manatee take in most parts of the river.

Comment 22: One commentor claims that the existing aerial survey data for the Caloosahatchee are skewed toward the shallower near-shore areas due to the flight path and observer and availability bias.

Response 22: We base our regulatory determinations on the best available information. We cannot base our determinations on speculation that manatees occur in areas not identified in the available data unless the data show such inferences to be reasonable. For example, we have determined that improved manatee protection in the vicinity of the Cape Coral Bridge is warranted. The data indicate that the Caloosahatchee River is used primarily as a travel corridor, and because aerial survey data indicate substantial manatee use upstream and downstream of the Cape Coral Bridge, it is reasonable to infer from these data that manatees do regularly occur near the Cape Coral Bridge. Additional protection is warranted due to the funneling effect of both watercraft and manatees that bridges often cause. Conversely, the commentor provides no basis, nor can we identify one, for assuming that manatees make more extensive use of the center portion of the river than is depicted in the available data.

Comment 23: With reference to the portion of the Caloosahatchee River from the Railroad Trestle to the Edison Bridge, one peer reviewer noted that aerial survey and telemetry data appear to indicate that manatees are distributed throughout this area, as opposed to concentrating along the shoreline as they appear to do in other areas of the river. The reviewer also noted that the seasonal component of the designation may not be warranted, as telemetry and aerial data do no show a strong seasonal bias. Furthermore, this area experiences generally lower overall watercraft use. Therefore, the reviewer believed that, although the proposed protection area (i.e., slow speed in the channel from November 15 to March 31, 25-mph maximum speed in the channel April 1 to November 14) is justified, allowing a 25-mph maximum speed in the channel year-round may be feasible and justifiable without posing a significant threat to manatees. Another peer reviewer and other commentors also stated that it may be acceptable to leave the navigation channel as 25 mph year-round because this portion of the river has substantially less boat traffic than lower areas of the river. The FWCC stated that manatees are most abundant between Channel Marker "23" and the railroad tressle.

Response 23: Based on the comments as well as a more thorough evaluation by our biologists, we have modified our proposed rule to better reflect the best

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available information regarding manatee use of this area. The final rule designates the portion of the Caloosahatchee River navigation channel from the Seaboard Coastline Railroad trestle downstream to Channel Marker "25" to be slow speed in the channel from November 15 to March 31, and not more than 25 mph in the remainder of the year.

Aerial survey data indicate that manatees do occur throughout this portion of the river throughout the year. However, the analysis of available data by FMRI (FWCC 2002) indicates that manatees are less likely to occur near the navigation channel downstream of the general area of Marker "25". This generally coincides with the change in the physiography of the river in this area. The river narrows upstream of channel Marker "25," and Beautiful Island and other smaller islands act to further constrict the river. This constriction explains the change in manatee distribution at this point in the river. Manatees are more likely to be found in and near the navigation channel upstream of Marker "25" than downstream. This fact, combined with the above-referenced lower level of boat traffic in this portion of the river relative to areas further downstream, led us to conclude that the existing regulations downstream of Marker "25" were sufficient, whereas increased protection is warranted between Marker "25" and the railroad trestle.

Comment 24: With reference to the portion of the Caloosahatchee River from the Edison Bridge to the Caloosahatchee Bridge, one peer reviewer noted that manatee sightings are lower in this area than in other portions of the river and may not warrant the proposed slow speed (channel included) designation. However, a year-round slow speed zone in this area may be warranted for other reasons, such as travel through a constrained area and/or boater safety. Another peer reviewer stated that the proposed rule seems appropriate for this area, noting that the current slow speed restrictions are along the southern shore only, creating a situation where many boats "short-cut" the area by running on plane along the north shore. The FWCC stated that telemetry data, boat traffic patterns, and the physical configuration of the downtown area may combine to make that area higher risk for manatees.

Response 24: We have carefully reviewed the above comments and other public comments and concluded that the proposed action is warranted in this area due to the reasons cited in our proposed rule and comments received from the FWCC and peer review.

Comment 25: With reference to the portion of the Caloosahatchee River from the Caloosahatchee Bridge to the Cape Coral Bridge, one peer reviewer noted that distribution and travel data suggest that manatees remain close to the shoreline and away from the channel. Requiring slow speed within the 6-foot contour line would encompass most of the aerial survey sightings and is the depth at which manatees most frequently occur. This depth also provides manatees the opportunity to escape from passing watercraft. In the Caloosahatchee River, most of the manatee sightings as well as the 6-foot contour line appears to fall within 500 meters (1,640 feet) from the shore. From a scientific perspective, it may be feasible to allow a 25-mph corridor from major access points to the channel in waters deeper than 6 feet. Another peer reviewer indicated that the proposed designations seem appropriate based on boating activity in the area. The FWCC stated that data do not support expansion of the shoreline buffer beyond the existing 0.25-mile width, but designation of the waters between the existing buffer zones as 25-mph maximum speed would provide some potential reduction of risks to manatees.

Response 25: We generally agree with the reviewers' interpretation that manatee use data in this portion of the river indicate that manatees travel along the shoreline. We conducted a more detailed review of the recent special study of the Caloosahatchee River by the Florida Marine Research Institute (FWCC 2002), and it appears that the majority of manatee use in this area occurs within the current 0.25-mile (402 meters) shoreline buffer, a conclusion that is very similar to the peer reviewer's conclusions. Therefore, this final rule adopts a 0.25-mile minimum shoreline buffer, as marked. Between the shoreline buffers, the maximum allowable speed will be 25 mph, including the channel, except where the channel occurs within 0.25 mile from the shoreline and watercraft are restricted to slow speed.

While we agree that water depths of 6 feet or greater afford manatees greater opportunity to avoid collisions with watercraft, it does not appear that the 6-foot contour line approximates manatee distribution in this portion of the river, as this contour extends a great distance from shore in this area (particularly from the western shoreline), whereas manatee aerial survey data show manatee use concentrated closer (generally within 0.25 mile) to shore.

Comment 26: With reference to the portion of the Caloosahatchee River northwest and southeast of the Cape Coral Bridge, as with the Edison/Caloosahatchee Bridges area, peer reviewers noted that manatee sightings are lower in this area than in other portions of the river and may not warrant the proposed slow speed (channel included) designation. However, a year-round slow speed zone in this area may be warranted for other reasons, such as travel through a constrained area and/or boater safety. The FWCC and others stated that further speed restrictions were not warranted in the vicinity of this bridge.

Response 26: Even though manatees have not been sighted as frequently near the bridge as in other portions of the river, because this portion of the river is used primarily as a travel corridor it is reasonable to conclude that manatees sighted upstream and downstream of this bridge regularly travel under the bridge. Therefore, it is logical to conclude that manatees regularly occur in this area. We believe that, due to the presence of causeways and pilings, many bridges, including the Cape Coral Bridge, create a funneling effect for both watercraft traffic and manatees. Therefore, we believe additional protection measures are warranted in the vicinity of such bridges. Further, we believe that the river beneath the Cape Coral Bridge is sufficiently wide to allow for the higher speed operation in the navigation channel. As such, we have modified our proposal for this area from a shoreline-to-shoreline slow speed zone. We will allow watercraft to proceed at not more than 25 mph in the channel and slow speed outside the channel from 500 feet upstream and 500 feet downstream of the Cape Coral Bridge.

Comment 27: With reference to the portion of the Caloosahatchee River southeast of the Cape Coral Bridge to Channel Marker "72," comments received were essentially the same as those addressed in comment 25 due to the similarity of the proposed designations.

Response 27: See the response to comment 25.

Comment 28: With reference to the portion of the Caloosahatchee River from Channel Marker "72" to Channel Marker "82," one peer reviewer stated data indicate that manatees occur along the shoreline as well as toward the channel in this portion of the river, with telemetry data indicating that animals may be crossing the channel to get from one side of the river to the other at Redfish Point (a relatively narrow portion of the river). Therefore, the proposed rule for this portion of the river appears to be justified. Another

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peer reviewer believed that this transition zone (requiring boaters to change speeds as they enter and leave this area) is not beneficial from a boating perspective. A common complaint among boaters is that there are too many changes in speed zones and that it is difficult for boaters to keep track of which zone they are in. Although the river narrows slightly at Redfish Point, this reviewer believed there is not sufficient evidence to suggest that boat traffic is significantly more concentrated in this area. The reviewer stated that, unless compelling evidence shows that there is an increased risk to manatees in this area, the shore-to-shore slow speed zone is not necessary, and suggested modifying the zone to be consistent with zones immediately upstream and downstream. The FWCC noted that a variety of data suggest that manatees may be at risk in the Redfish Point area of the river. We also received many comments from the boating public regarding the increased time needed to traverse the 1.9-mile slow speed zone we proposed to establish at Redfish Point. Many commentors recommended allowing for high-speed travel in the marked channel.

Response 28: We concur with the reviewers' interpretation of the available data regarding manatee movement patterns in the area of Redfish Point. Additionally, as the river narrows to approximately 1-half mile at Redfish Point, we believe that manatees are at higher risk of watercraft collision in this area. Because available evidence indicates that manatees cross the river regularly at this point, we do not believe it is appropriate to maintain a high-speed channel in this area. However, we did conduct a more detailed review of the available data and concluded that sufficient manatee protection could be achieved in this area by reconfiguring and shortening the slow speed zone, as reflected in the final rule. Our analysis of aerial and telemetry data indicates that manatee use is greatest between Channel Markers "72" and "76." We have also attempted to address the concern associated with the frequent changes in designations along the river by maintaining a 25-mph corridor under the Cape Coral Bridge and through the channel between Channel Marker "99" and the Sanibel Causeway. These changes should make it easier for boaters to follow the designations as they navigate the river.

Comment 29: With reference to the portion of the Caloosahatchee River from Channel Marker "82" to Channel Marker "93," comments received were essentially the same as those addressed in comment 25 due to the similarity of the proposed designations.

Response 29: See the response to comment 25.

Comment 30: With reference to the portion of the Caloosahatchee River from Channel Marker "99" to the Sanibel Causeway, one peer reviewer noted that aerial survey data indicate that manatees use both the deep and shallow water of this area and telemetry data show "manatee places and corridors," particularly along the eastern boundary of this area. While allowing 25 mph in the deeper waters would provide relief for boaters, manatee use of the area justifies inclusion of the area in the proposed rule. Another peer reviewer noted that this area experiences an extremely high volume of boat traffic at times, in fact, so congested that travel speeds can be self-limiting. The majority of the vessel traffic remains in or near the marked channel between Channel Marker "99" and the Sanibel Causeway. It may be acceptable, therefore, to retain a speed of 25 mph in the channel and slow speed outside of the channel in this area. This area should be a priority for enforcement and compliance initiatives. The FWCC believes that regulation of the channel from marker "99" to the Sanibel Causeway would increase risks to manatees because of potential changes in boat traffic patterns. The data suggest that additional manatee protection zones should be considered around Fisherman's Key and Big Island. Several commentors noted that the configuration of the proposed rule (slow speed including the channel) would encourage boaters traveling between Sanibel Causeway and the Caloosahatchee River to travel up the unregulated channel on the western side of San Carlos Bay and through the Intracoastal Waterway (ICW) east-west "Miserable Mile" channel. This would place more high-speed boat traffic in an area of San Carlos Bay that is heavily used by manatees. Many commentors expressed concern regarding our proposed regulation of the navigation channel at slow speed, due to the resulting increase in travel time.

Response 30: We acknowledge that the proposal for this area may have done more harm than good for manatees utilizing the shallow seagrass flats of San Carlos Bay because the high volume of traffic would likely be diverted to the "Miserable Mile" channel where the manatees occur in the adjacent shallow seagrass flats. The diversion of a high volume of watercraft traffic into an already-congested channel may have also created a human safety issue. We have therefore modified this protection area to exclude the channel and an adjacent buffer from the regulation. The configuration of the final rule provides protection of the grass beds near the various keys in San Carlos Bay, without disrupting established boating travel patterns.

Comment 31: With reference to the portion of the St. Johns River from Reddie Point to the Main Street Bridge, one peer reviewer noted that, based on aerial survey data, manatee use of the area supports the proposed rule. The reviewer believes that the existing shoreline buffers are likely not adequate. The FWCC and the City of Jacksonville stated that available data indicate that the existing shoreline buffers are adequate in this area. The FWCC also stated that the existing buffer zones would be easier to mark than the proposed designations.

Response 31: We have reevaluated this area and believe that, based on the available data, our proposed rule for this portion of the St. Johns River is appropriate, with one exception. We have determined that the downstream boundary of this protection area should be moved upstream (south) to Channel Marker "73" instead of Reddie Point. We believe this revision is necessary given the configuration of the river relative to the marked navigation channel. Downstream of Channel Maker "73" the river widens and curves. At this point the navigation channel hugs the western shoreline. Such configuration is not intuitive and most boaters will tend to continue on a straighter path up the middle of the river, particularly if traveling upstream from Reddie Point. We agree with the FWCC that a clear and effective sign plan in this portion of the river would be difficult, at best, due to the channel configuration as well as water depth, minimal existing signs, and the current watercraft traffic in the areas (i.e., large ships, barges, and tug boats in addition to recreational watercraft). We note the signage for the existing speed zones in this area is inadequate to inform boaters of the location of the existing zones. Overall, we believe that speed zones that follow the marked navigation channel in this area will be easier for boaters to understand, with the exception of the above noted area downstream of Channel Marker "73," where we intend to work with the FWCC regarding signage of the existing zones.

Comment 32: With reference to the portion of the St. Johns River from the Main Street Bridge to the Fuller Warren Bridge, one peer reviewer noted that, based on aerial survey data, manatee use of this area is not notably higher than

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in other areas of the river. The sighting data do not appear to justify the establishment of a year-round slow speed zone in this portion of the river for manatee protection. However, the proposed rule may be warranted based on other issues, such as constrained waterways and/or boater safety. The FWCC and others provided similar comments regarding this portion of the St. Johns River.

Response 32: This area of the river is used as a travel corridor, and because manatees are regularly sighted upstream and downstream of this area, it is reasonable to conclude that they regularly traverse this area. Additionally, in this area the river narrows and curves and the presence of many bridges in the downtown Jacksonville area creates a funneling effect for both watercraft traffic and manatees. This combination of factors warrants implementation of additional manatee protection measures in this area.

Comment 33: With reference to the portion of the St. Johns River upstream of the Fuller Warren Bridge including Doctors Lake, one peer reviewer noted that aerial survey data indicate that manatees routinely use these areas. Extending the shoreline buffers, as proposed, provides additional protection to manatees that often spend much of their time within these shoreline areas for many activities, such as resting, feeding, and caring for young. Additionally, several carcasses of manatees killed by watercraft have been recovered in this portion of the river. The available data justify the inclusion of this area in the proposed rule. The City of Jacksonville, Clay County, and others stated that the existing regulations were adequate in this area and that Federal designation was not warranted. The FWCC recommends that if we were to do anything in this area we should adopt a Federal zone the same as the existing State zones, or alternatively consider adoption of a fixed 700-foot buffer in this area. The FWCC further stated that the greatest contribution we could make to improving manatee protection in this area would be through improved signage and enforcement.

Response 33: We concur with the peer reviewer's interpretation of the data that manatees generally utilize the shoreline areas. Upon further review of the data and the public comments, our final rule is modified slightly from the proposed rule in that the shoreline slow speed buffer will be a minimum of 700 feet from the shoreline, but not more than 1,000 feet in the St. Johns River, as marked, and a minimum of 700 feet from the shoreline, but not more than 900 feet in Doctors Lake, as marked. The intent is to mark the zones as close to the 700-foot minimum as possible, but given the non-linear configuration of the shoreline in both the river and the lake, the maximum distance allows flexibility to design an effective, understandable, and enforceable sign plan. The Federal designation of this portion of the river and Doctors Lake will enable us to devote Federal funds to appropriately marking this area.

Comment 34: Peer review comments stated that the proposed rule in the St. Johns River will be easier to post than the existing configuration, which is beneficial because better signage translates to better compliance and better protection.

Response 34: We concur with the reviewer and believe that the final rule, which is modified slightly from the proposed rule, will allow us to effectively post the new Federal manatee protection areas in the lower St. Johns River. We note that the existing signage in this portion of the river is inadequate.

Comment 35: Peer review comments cautioned us not to assume that manatee deaths in the St. Johns River occurred at the location where the carcasses were recovered, as implied in the proposed rule (68 FR 16608). Often it is not known where the death occurred, rather it is known where the carcass was recovered.

Response 35: We agree. The language in the final rule has been changed to avoid giving this impression, which was not intended.

Comment 36: One commentor assumed that, since Duval County was designated as an "Area of Inadequate Protection" under the Service's final interim strategy for section 7 consultation, the waters of the County would be one of the highest priorities for refuge status.

Response 36: In response to the commentor, we wish to clarify that the reach of the St. Johns River within Duval County considered to be an "Area of Inadequate Protection" (AIP) was not designated as such due to inappropriate design of the existing zones, but rather because we believe the signage of the existing zones to be inadequate. In some areas of the Duval/Clay/St. Johns County portion of the St. Johns River, inadequate signage also resulted in a reduced ability to enforce the zones. We did not consider this area to be as high a priority as actions taken in previous rulemakings. Our final designation will enable us to correct the signage deficiency.

Comment 37: One commentor stated that the submerged aquatic vegetation in the main stem of the St. Johns River extends approximately 900 feet from the shoreline and states further that this distance is variable. The commentor believed that the proposed shoreline buffer will improve manatee protection by expanding it and creating consistency. The commentor claimed this expansion "from 300 to 1,000 feet will only increase boater travel time by 1.6 minutes."

Response 37: We believe that our final designation, which designates a slow speed shoreline buffer extending a minimum of 213 meters (700 feet) and a maximum of 305 meters (1,000 feet), encompasses the area most used by manatees and will have limited adverse effects on boater use of the St. Johns River.

Comment 38: With reference to the Halifax Creek from the Flagler/Volusia County line to Channel Marker "9," peer review comments stated that manatees use this area as a travel corridor and have little room to navigate around boat traffic within or outside of the channel in this narrow, constrained northern stretch of the river. These factors support the proposed rule.

Response 38: We agree.

Comment 39: With reference to the Halifax River from Channel Marker "9" to the Granada Bridge, peer review comments stated that the proposed rule improves the existing zones without substantial changes. Extension of the shoreline buffers should increase protection of manatees without interfering with watercraft traffic.

Response 39: Manatees exhibit a general tendency to utilize the nearshore waters preferentially throughout their range. As such, establishment of slow speed shoreline buffers is often an effective strategy for minimizing collisions between manatees and watercraft. However, any given manatee may deviate from this pattern at any time and wander farther from shore than "normal." Therefore, wider buffers would always be considered to be most protective of manatees if no other factors were considered.

With respect to the Halifax river, subsequent to publishing the proposed rule, we conducted a more detailed analysis of this area and determined that the river is approximately 2,000 feet wide over most of its length. The practical effect of our proposed rule (a 1,000-foot shoreline buffer) would have been to make the river slow speed outside the ICW channel. In areas where the river is somewhat wider than 2,000 feet, the proposed rule would have

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created unregulated "pockets" that would have been difficult or impossible to regulate, and would have been of no practical use to boaters. While our stated intent in proposing a 1,000-foot shoreline buffer was, in part, to make the regulations in this area more understandable and enforceable, the proposed rule would have actually had the opposite effect by creating the unregulated "pockets" discussed above, thereby potentially compromising manatee protection instead of enhancing it. Additionally, the FWCC noted that manatee use data for this portion of Volusia County are limited and dated. We agree and further note that the limited available data do not support the need for a "slow-speed outside the channel" designation. We have, therefore, concluded that establishment of a 1,000-foot shoreline buffer is not prudent.

Subsequent to the publication of the proposed rule, we also examined possible alternatives for expanding the shoreline buffers to some other distance from shoreline. As stated previously, wider buffers are generally more protective, so expansion of the existing 300-foot buffer to some greater distance would arguably improve manatee protection. As indicated above, the widest possible buffer for the Halifax River would have been 1,000 feet (as proposed), or slow speed outside the channel for all practical purposes, which was determined to be unwarranted. Additionally, the quality of the available data is such that we cannot conclude that substantial evidence supports expansion of the shoreline buffer to some distance other than the currently designated 300 feet. In other words, we conclude that the selection of some other width for the shoreline buffer would be arbitrary. We support the FWCC's ongoing efforts to collect additional data regarding manatee distribution and habitat use in this area, in order to provide for better informed decision-making.

Comment 40: With reference to the Tomoka River upstream of U.S. 1, peer review comments noted that manatee sightings occur throughout the river and sightings of manatee calves coupled with perinatal carcasses close to I-95 indicate the importance of this section as a nursery area. The continuation of the slow speed designation to I-95 is justified. Another peer reviewer noted that eliminating the 25-mph status in narrow waterways such as the Tomoka River and Spruce Creek is appropriate for areas where manatee activity is well documented because the entire waterway can function as a channel, with boats traveling at high speeds along the entire width. Further, in-channel and out-of-channel designations in narrow waterways present a problem for law enforcement because it may be difficult to distinguish whether the vessel is in or out of the channel. There are also obvious human safety benefits to slowing watercraft down in narrow waterways. This peer reviewer also noted that, while there are differences in the established definitions of "idle" and "slow" speed zones, in the reviewer's experience, there is little practical difference between boats traveling at idle versus slow speed. Such differences between the two designations are difficult to enforce and may not provide a significantly different level of protection for manatees. The reviewer recommends the designation of more enforceable, consistent slow speed zones throughout the length of this river. The FWCC noted that the Tomoka River and its tributaries are known calving and nursing areas for manatees, so it is appropriate to consider extra protection in this system. However, they recommended that we defer Federal designation pending completion of their reevaluation of the zones in Volusia County, and stated that their review would consider whether speed zone designations in this area should be seasonal. Another commentor noted that manatee carcasses have been discovered from the Tomoka River in every month except February.

Response 40: Given the narrow configuration of the river, documented high seasonal use by manatees, and demonstrated watercraft-related mortality in this river, we have concluded that it is appropriate to take Federal action at this time to eliminate the 25-mph zone between Alligator Island and the I-95 Bridge on a seasonal basis. We agree with the peer reviewer that a consistent designation throughout the length of the Tomoka River would be preferable. However, we do not have the authority to undo more restrictive existing regulations, such as the existing idle speed and year-round zones. Except for the portion of the Tomoka River where we are implementing a Federal seasonal slow speed zone, we believe the existing zones in the river to be adequate and possibly more restrictive than necessary given the seasonality of manatee use. We decided not to overlay the existing zones with Federal designations over most of the river in order to avoid hindering State efforts to revise these zones in the future. We have determined that seasonal designations are appropriate for this area. While manatee carcasses may have been recovered throughout the year in the Tomoka River, it is important to note that no watercraft-related mortalities have been recorded during winter months. Carcasses found in winter months are more likely related to cold stress as there are no reliable warm water sources in the Tomoka River.

Comment 41: With reference to the Halifax River at the Granada Bridge, peer review comments indicated that, although manatees have been spotted in this area during aerial surveys, the sighting data do not justify the establishment of a year-round slow speed zone in this area for manatee protection. However, the proposed rule may be warranted based on other issues, such as constrained waterways and/or boater safety.

Response 41: We believe that the presence of causeways and pilings associated with many bridges (including the Granada Bridge) creates a funneling effect for both watercraft traffic and manatees. Therefore, we believe additional protection measures are warranted in the vicinity of such bridges and have finalized the rule as proposed in this portion of the Halifax River.

Comment 42: With reference to the Halifax River from the Granada Bridge to Seabreeze Bridge, peer reviewer comments noted that, although manatees have been sighted in this area, the abundance does not appear to be as great as in other regions. However, manatees moving from one higher-use area to another will likely move through this area as a travel corridor, justifying the need for some protection. Although no empirical data support the benefits of regulating watercraft speeds at 25 mph versus 30 mph; it is intuitive that watercraft traveling at higher speeds afford manatees less time to get out of the way, would impact a manatee with greater force, and would cause more harm than those at lower speeds. The available data support the proposed rule in this area. The FWCC commented that in its more recent rulemakings the agency has consistently used 25 mph as the "minimum planing speed" for most vessels.

Response 42: As noted above, a more detailed analysis of this area subsequent to publication of the proposed rule revealed that the proposed 1,000-foot slow speed shoreline buffers are not warranted. With reference to establishing a 25-mph speed limit outside the shoreline buffers, we believe that this action will enhance manatee protection by making the regulations more consistent throughout the area, thereby improving compliance by making the zones easier for boaters to understand.

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Comment 43: With reference to the Halifax River from the Seabreeze Bridge to Channel Marker "40," peer review comments stated that, based on the recovery of perinatal carcasses, this area may be an important nursery area. This may not be the best location for the high-speed watersports area.

Response 43: We concur with the reviewer's interpretation of the data. The final rule consists of a slow speed zone from 500 feet north to 500 feet south of the Seabreeze Bridge and reduces the speed in the Seabreeze watersports area to slow speed to be consistent with the existing speed zone in the area. Although our final rule for the area is scaled back from the proposed rule in that we do not overlay the entire existing zone with a Federal slow speed zone, we believe the final rule provides improved protection where it is most needed (i.e., at the pinch point created by the bridge and the high-speed watersports area). Additionally, we conclude that the existing designation of slow speed (channel included), is warranted through this section of the river because of the high volume of boat traffic in the Daytona Beach
area.

Comment 44: With reference to the Halifax River from Channel Marker "40" to the Dunlawton Bridge, peer review comments stated that the proposed rule improves the existing zones without substantial changes. Extension of the shoreline buffers should increase protection of manatees without interfering with watercraft traffic. Manatees often rest, feed, mill, and socialize in waters less than 6 feet deep, not just within 300 feet of shore. The proposal eliminates a second high-speed watersports area. Although this area appears to be a travel corridor for manatees, and carcasses of manatees killed by watercraft have been recovered from the area, this high-speed area appears to be in a "less egregious" area than the high-speed area near the Seabreeze Bridge, based on the data.

Response 44: See the response to comment 39 regarding shoreline buffers, and the response to comment 41 regarding constricted areas near bridges.

Comment 45: With reference to the Halifax River north and south of the Dunlawton Bridge, peer review comments noted that, although manatees have been sighted in this area during aerial surveys and manatee carcasses attributed to watercraft collisions have been recovered from the area, the reviewer does not believe that those data justify the establishment of a year-round slow speed zone in this area for manatee protection. However, the proposed rule may be warranted based on other issues, such as constrained waterways and/or boater safety.

Response 45: See response to comment 41.

Comment 46: With reference to the Halifax River from south of the Dunlawton Bridge to Ponce Inlet, peer review comments stated that the proposed rule improves the existing zones without substantial changes. Extension of the shoreline buffers should increase protection of manatees without interfering with watercraft traffic. Manatees often rest, feed, mill, and socialize in waters less than 6 feet deep, not just within 300 feet of shore. The change from 30 mph to 25 mph intuitively improves manatee protection, but the reviewer knows of no empirical data to support it. The proposed rule will increase the uniformity of the regulations, which should improve boater comprehension of and compliance with the manatee protection zones.

Response 46: There is a wide variety of existing speed zones in this area that we believe to be unnecessarily complicated and confusing. Our proposed rule would have simplified the speed zones to a degree, by eliminating the 30 mph designation, and would have improved manatee protection somewhat in this area, but would not have improved the logistical situation enough to significantly reduce or eliminate boater confusion and increase compliance. We do not have the ability to substantially modify the existing zones in this area unilaterally because many of the State-designated speed zones are as restrictive as the proposed rule and we do not have the authority to impose regulations that are less restrictive than existing State rules. Simplifying these zones would necessarily need to be done by the FWCC. The FWCC stated in its comments that the agency is collecting additional data on manatee distribution in Volusia County for the purpose of reevaluating the existing speed zones. Because we do not want to hinder the State's efforts to improve the existing zones, we have decided not to designate this area at this time beyond reducing the maximum allowable speed, outside of existing slow speed zones, from 30 mph to 25 mph.

Comment 47: One peer reviewer was unclear as to why the Ponce Inlet has a proposed speed limit of 30 mph. This speed may be appropriate if it has been determined that 30 mph is necessary to navigate through the inlet, or it is a designated watersports area. Otherwise, it creates confusion for boaters to have too many types of speed zones.

Response 47: We believe the existing State-designated zone in the Ponce Inlet is adequate and have, therefore, decided not to implement Federal regulations in the Ponce Inlet at this time. Our proposed rule in this area simply mirrored the existing zone. The FWCC is currently collecting additional data regarding manatee distribution in this area, and we concluded that, in the absence of such information, we did not have a solid basis for action at this time. Additionally, Federal designation could possibly hinder State efforts to modify the speed zones in this area, should updated information warrant such action.

Comment 48: With reference to the Live Oak Point to Channel Marker "2," peer review comments noted that manatee sightings in this area are more frequent than in other nearby areas; therefore, the proposed rule is supported by the available data.

Response 48: We concur with the reviewer's interpretation of the data. However, the proposed rule would have simply resulted in the federalization of the existing State-designated zones. For this final rule, we believe that it is not necessary to overlay the existing zones that appear to be appropriately designed and signed. Therefore, we will not proceed with designating this area at this time.

Comment 49: With reference to the ICW from Redland Canal to the A1A Bridge, peer review comments noted that manatee sightings in the area just south of the Ponce Inlet are more frequent than in other nearby areas, and these sightings are probably why the area is currently designated as slow speed. The existing 30-mph stretch occurs in an area where manatee sightings have occurred. The data support the proposed designation of the area to slow speed.

Response 49: We agree.

Comment 50: Some commentors strongly suggested that the Service maintain at least a 25-mph channel at New Smyrna.

Response 50: We carefully considered this comment in light of the increased travel time that would result from our proposed designation. However, in light of the available information, we have concluded that slow speed designation in this area should include the channel in order to effectively improve manatee protection in this area.

Comment 51: One peer reviewer stated that the proposed rule in the Halifax and Tomoka Rivers will be easier to post than the existing configuration, which is beneficial because better signage translates to better compliance and better protection.

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Response 51: We agree.

Comment 52: One commentor claims that the proposed zones in the Halifax River will help improve boater compliance by reducing the complex mosaic of different zones without indicating how the proposed zones would be more understandable than the existing zones.

Response 52: Based on our analysis and information provided by Volusia County, we have determined that aspects of our proposed zones would have actually created additional confusion, while eliminating very little (see Response 39). Our final designations provide for some simplification of the regulations in this area; further improvements are dependent on State action. We have attempted to design our manatee protection areas to avoid hindering future State actions, while ensuring appropriate protection for manatees.

Comment 53: One commentor stated that the Service has previously designated both refuges and sanctuaries in areas without documented mortality; therefore, these proposed refuges are fully justified.

Response 53: Manatee protection area designations serve different purposes in different areas. The previously designated protection areas to which the commentor is referring were located at and around warm water sites where take by harassment was the primary concern. By contrast, the proposed regulations are not specifically designed to provide additional protection at warm water sites, except in a small portion of the upstream extent of the Caloosahatchee River-San Carlos Bay Manatee Refuge (i.e., in the vicinity of the Seaboard Coastline Railroad trestle to the Beautiful Island area). There are, in fact, no warm water aggregation sites within either the Lower St. Johns River Manatee Refuge or the Halifax and Tomoka Rivers Manatee Refuge. Rather, the purpose of the proposed refuges, which establish slow speed zones, is to minimize the risk of high-speed collisions between watercraft and manatees in areas where collisions are likely to occur.

Comment 54: We received two comments regarding the effects of the proposed regulations on seaplane operations. Both recommended that seaplanes in general should be excluded from regulation under the rules, and one identified a seaplane operation that would be severely affected by the proposed speed restrictions on the Caloosahatchee River.

Response 54: According to our regulations the terms "Water vehicle, watercraft, and vessel" are defined to include, but are not limited to, "boats (whether powered by engine, wind, or other means), ships (whether powered by engine, wind, or other means), barges, surfboards, personal watercraft, water skis, or any other device or mechanism the primary or an incidental purpose of which is locomotion on, or across, or underneath the surface of the water." This definition is sufficiently broad to include seaplanes, and the 25-mph speed limit on the Caloosahatchee River would effectively preclude the use of seaplanes in this area. After reviewing the information provided during the public comment period we have concluded that the seaplane business currently operating on the Caloosahatchee River poses an insignificant and discountable threat to manatees. Based on information provided during the public comment period, the seaplanes operating at this location take off and land in the middle of the river, well outside the existing 0.25 mile buffer zones. This portion of the river does not receive significant manatee use, based on review of aerial survey and telemetry data. During take-off and landing, the seaplanes are operating at speeds in excess of 25 mph for no more than a few seconds over a distance of approximately 1,500 feet. Given the location on the river and the short distance involved, it is exceedingly unlikely that seaplanes would encounter manatees while taking off and landing.

By definition, a manatee refuge is an area in which "certain" waterborne activities are restricted to prevent the taking of one or more manatees. For the portion of the Caloosahatchee River-San Carlos Bay Refuge between the Caloosahatchee River Bridge and the Cape Coral Bridge (the area currently utilized by seaplanes), we have concluded that the waterborne activities to be regulated per this rule need not include seaplanes. As such, the final rule has been modified to state that in this portion of the Caloosahatchee River all watercraft, except seaplanes, are required to operate at speeds less than 25 mph. As far as we know, no other seaplane operations would be affected by these regulations, so we are not adopting a broader exclusion for seaplanes at this time.

Comment 55: One peer reviewer commented that, based on boat surveys he conducted in the Caloosahatchee River, it appears that the proposed rule should not have a significant impact on the majority of boaters using this river because--(1) The Caloosahatchee River functions as a boating corridor as opposed to a destination (i.e., it is used as a pathway to and from other boating destinations); (2) the majority of boat traffic remains within or near the Intracoastal Waterway when traveling through the river; and (3) speedgun studies conducted in the river prior to a numerical speed regulation demonstrated that the average vessel speed was 24.33 mph. Similar speedgun results have been found in other areas. Many of the public comments, however, expressed concern that the proposed rule would concentrate boat traffic within the navigation channel, thereby compromising boater safety.

Response 55: The available research on boating activity in this area (as summarized in the reviewers' comments) appears to indicate that threats to boater safety are more perceived than actual. Nonetheless, these perceptions are strong among local boaters and would clearly undermine public support for the proposed speed zones, thereby compromising compliance and ultimately the effectiveness of the regulation. Additionally, we have determined that the configuration of the proposed rule lacks a solid biological basis (see Response 25). As such, we have modified the final rule to better reflect the best available information regarding manatee use of this river, which will have the additional benefit of assuaging boater concerns for safety.

Comment 56: Many commentors believe that the economic impacts of the rule are underestimated. In particular, several commentors believe that the rule fails to properly analyze the full range of businesses that will be affected or the cumulative effect of reduced boating in Florida resulting from slower speed zones. Some commentors stated that the proposed rule does not adequately address how the restrictions will affect the dock building industry, restaurants, hotels, and marinas. Other commentors indicated that businesses dependent on water access or transportation, such as commercial fishing, waterfront restaurants, and fishing guides, would be severely impacted and may no longer be economically viable. One commentor believes all service industries on the Caloosahatchee River would be affected. One commentor believes that the economic impact on commercial fishing is dismissed in the analysis. Another commentor noted that recreational fishing trips will be affected.

Response 56: The discussion in the proposed rule assesses in a qualitative manner the economic effects of the rule to determine if it would have a significant economic effect. In order to make this determination, we examined the categories of impact that are likely to have minor impact and focused on

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activities that are likely to incur the greatest economic impacts. In particular, the analysis focuses on recreational and commercial boating activities likely to be affected by the rule. We believe that the rule will lead to changes in recreational activities based on increased travel time and may cause some consumers to forgo some activities. The economic impacts associated with these changes are above-and-beyond those associated with the system of State-designated manatee protection areas already in place in each of the manatee refuges established in this rule. For example, some impacts associated with manatee protection areas in the Caloosahatchee River are already occurring because of existing slow speed zones implemented by the State beginning in 1979. The economic impacts of this rule are related only to the inconvenience of travel time that is additional to these existing slow speed zones. We do not expect that changes in consumer activity related to these additional speed zones would result in significant economic impacts. Moreover, based on further review by the Service and in response to various comments, the extent of the speed zone restrictions initially proposed has been reduced in the final rule. Therefore, we continue to believe that the economic impact of the speed zones in the final rule will not be significant (i.e., over $100 million annually).

We consider only economic impacts associated with this rule. Comments that discuss the overall contribution of industries in general do not describe the effects of this proposed rule specifically. In addition, the analysis estimates impacts on a broad geographic area. Comments that provide information on the impacts to specific sites that cannot be generalized to the broad geographic area are not able to be incorporated into the current analysis.

Comment 57: One commentor noted that popular activities such as water skiing and wakeboarding will not be possible along the entire length of the Caloosahatchee River.

Response 57: The analysis acknowledges that some recreationists may have to travel farther to participate in certain activities or may choose to forgo some activities. However, the speed zone restrictions imposed by the rule do not preclude participation in any recreational activities. Further, based on Caloosahatchee River data, the major use of the river is for travel and not waterskiing or wakeboarding (Gorzelany, 1998). Thus, it is unlikely that including the number of forgone waterskiing and wakeboarding trips resulting from the rule would result in a determination of significant economic impact. Moreover, based on further review by the Service and in response to various comments, the speed zone restrictions initially proposed for the Caloosahatchee River and San Carlos Bay have been reduced in the final rule. Therefore, the number of forgone waterskiing and wakeboarding trips are expected to be minimal, and we continue to believe that the economic impact of the speed zones in the final rule will not be significant.

Comment 58: One commentor stated that Clay County is unlikely to experience any benefits due to an increase in tourism related to manatee viewing because of the shallow and/or brackish nature of the water.

Response 58: While the brackish nature of Doctors Lake and the shallow waters of St. Johns River do not lend themselves to manatee viewing as well as clear, deep water, there are currently manatee viewing points in these areas within the proposed designated manatee protection areas. Economic benefits related to increased tourism resulting from increased manatee protections afforded by this rule are indeed expected to be small, if any occur. The rule does not attempt to quantify these benefits, or to assign them to a particular area; however, we believe that such benefits may occur as a result of this rule.

Comment 59: One commentor stated that consumer surplus is not defined in the proposed rule.

Response 59: Consumer surplus is an economic measure based on the principle that some consumers benefit at current prices because they are able to purchase goods and services at a price that is less than their total willingness to pay for the good. For example, boaters may incur consumer surplus benefits when they can drive at faster speeds on the water because their enjoyment of the boating experience increases. Due to lack of available data, the Service did not quantify the net change in consumer surplus resulting from this rule.

Comment 60: One commentor believes that it is incumbent upon the Service to perform a cost-benefit analysis in order to determine whether the economic impact of the rule is over $100 million.

Response 60: Agencies should assess the potential costs and benefits of significant regulatory actions. Accordingly, the Service has performed a preliminary economic analysis and determined that the economic impact of designating three additional manatee protection areas will not be significant (i.e., over $100 million annually). However, a qualitative discussion of the likely costs and benefits is found in the Required Determinations section of the preamble. As was noted in the proposed rule, and supported by statements of several commentors, existing manatee protection regulations in the affected areas are already extensive. Based on further review by the Service and in response to various comments, the speed zone restrictions proposed have been reduced in the final rule. Therefore, we continue to believe that the economic impact of the speed zones in the final rule will not be significant.

Comment 61: A number of commentors were concerned that the proposed rule would affect property owners' ability to build docks on their property.

Response 61: This rule establishes three manatee protection areas. In so doing, we are regulating the speed at which boats can travel in certain waters in five counties in Florida. This rule in no way affects property owners' ability to build a dock on their property. The Service considers it unlikely that property owners would choose not to build a dock on their property as a result of this rule.

Comment 62: A number of commentors were concerned that the proposed rule would negatively affect property values. In addition, one commentor noted that, despite the introduction of slow speed zones in the Tomoka and Halifax Rivers, property values have continued to increase. Several commentors believe that property values will increase as a result of the rule. Another commentor noted that property values on Doctors Lake have risen considerably over the past 10 years during which time slow speed zones have been established in the lake. Another commentor stated that the impact of the rule could be greater than $100 million based on the belief that the rule could cause 200 people each to decide not to spend $500,000 on a home in Cape Coral because of the rule.

Response 62: We determined the economic impact of the proposed rule by considering the net effect of the rule on the housing market. The analysis is not based on a single site-specific study. However, we do believe that more information is needed to better understand the impact of manatee protection areas on property values in specific areas. Given the timeframe of the analysis, performing primary research such as an original study of property values is not feasible.

Comment 63: One commentor stated that our analysis was based on the Bell and McLean (1997) study, which they believe is suspect and out-of-date.

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Response 63: There is very little published information available regarding the impact of slow speed zones on property values. We believe that more information is needed to better understand the impact of manatee protection areas on property values in specific areas. Given the timeframe of the analysis, performing primary research, such as an original study of property values, was not feasible. The study by Bell and McLean appears to be one of the few studies and the most recent study addressing this issue.

Comment 64: Several commentors suggested that tax revenues from a loss in property values could be negatively impacted by the rule. That is, property value reductions in an area may lead to lower real estate and other tax revenues.

Response 64: While some existing properties may realize a gain in value (thereby generating greater tax revenues), other properties may experience a loss in value (thereby reducing tax revenues). Given the lack of data, it is difficult to know the magnitude of this overall effect. However, the Bell and McLean (1997) study suggests that property values may increase with slow speed zone implementation, which would lead to increased tax revenue. However, given the timeframe of the analysis, performing the primary research to determine the overall effect was not feasible.

Comment 65: One commentor believes the rule to be a major rule (will have an annual impact of more than $100 million on the economy), given that it threatens the recreation of 1.4 million boaters in Florida and a $15 billion marine industry in Florida.

Response 65: It appears that the commentor's boater and marine industry information is based on a 2001 study performed by Thomas J. Murray and Associates for the Marine Industries Association of Florida, titled "Florida's Recreational Marine Industry--Economic Impact and Growth 1980-2000" (no citation was provided). This study conducts a regional economic impact of retail sales by motorboat and yacht dealers in the State of Florida (Revenue Kind Code 28). The analysis estimates the direct, indirect, and induced impacts associated with this sector to calculate the $14.1 billion economic impact. We have focused on the economic impact likely resulting from the rule--those impacts associated with a reduction in marine recreational and commercial fishing activities due to slow speed zones. Murray et al. measures an impact not associated with the proposed rule; thus, these impacts have not been incorporated into the analysis.

Comment 66: The Small Business Administration's Office of Advocacy (SBA-Advocacy) recommends that the Service complete an Initial Regulatory Flexibility Analysis.

Response 66: This screening-level study indicates that changes to existing speed zones would affect a number of small entities, but the economic impacts would not be to a substantial number of entities. In addition, we believe that the rule would not have a significant economic impact on these affected entities. Because we certify that this rule would not have a significant economic impact on a substantial number of small entities, an Initial Regulatory Flexibility Analysis is not required.

Comment 67: SBA-Advocacy recommends that the Service refine its analysis in order to determine whether a substantial number of small entities will be significantly affected by the rule. In particular, SBA-Advocacy suggests revising the analysis to focus exclusively on entities affected by the rule.

Response 67: Based on a review of publicly available data sources, the data that would be needed to satisfy SBA-Advocacy's concerns are not available. Alternative analyses, different from the one described in the proposed rule, could be conducted; however, none of these analyses would be able to produce the level of detail recommended by SBA-Advocacy.

Comment 68: SBA-Advocacy has indicated that, as a result of preliminary outreach conducted, a substantial number of small entities will face significant economic impacts from the rule. Affected entities identified generally by SBA-Advocacy include charter fishing companies, a ferry company, a boat builder, harbor facilities, restaurants, marine construction firms, and realtors. SBA-Advocacy recommended that the Service conduct outreach to affected small entities to obtain information on the potential impacts of the proposed rule and to solicit input on alternatives to minimize regulatory burdens imposed on small entities.

Response 68: While we agree that there is the potential for an economic effect on a number of small entities in the affected area, information on the total number of small businesses in the affected area does not exist. Conducting outreach efforts to obtain data on the impact to small entities, beyond providing a public review comment period, would require a level of effort that is incompatible with the timeframe of the rule. In addition, we received no comments during the public comment that included information on substantial numbers of entities impacted, or significant impacts.

Furthermore, Federal courts and Congress have indicated that a Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) analysis should be limited to direct and indirect impacts on entities subject to the requirements of the regulation. As such, entities not directly regulated by the proposed establishment of manatee protection areas need not be considered in this RFA/SBREFA screening analysis. For example, SBA-Advocacy suggested impacts on restaurants and realtors should be considered; however, these entities are not subject to the restrictions on speed at which a boat can travel, and are therefore correctly excluded from the analysis.

Comment 69: One commentor suggested his fast ferry business would experience dire effects from the regulation. Another commentor suggested his jet ski business would be negatively affected. Other commentors suggested that the rule would impact small businesses.

Response 69: Because of its location in Fort Myers, this ferry service is currently incurring costs related to speed zones affecting its travel time. The commentor did not provide a specific estimate of how much time would be added to his trip that would impact the value of his business. While the length of a trip aboard this ferry service will be affected, it may still be the fastest alternative available to consumers and consumers may still choose this option. Given available information, it is difficult to determine whether this business will be significantly affected. Because the jet ski business indicated that personal watercraft sales and service are only approximately 20 percent of revenues for this business and the expected reduction in sales and service related to jet skis is 17 to 25 percent, the expected overall impact on revenues would be less than 5 percent. Based on further review by the Service and in response to various comments, the speed zone restrictions initially proposed have been reduced in the final rule. Therefore, the impacts anticipated by the commentors will likely also be reduced correspondingly. Given our analysis of available information, we continue to believe that the economic impact of the speed zones in the final rule will not result in significant impacts to a substantial number of small entities.

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Summary of Changes From the Proposed Rule

In the Caloosahatchee River-San Carlos Bay Manatee Refuge, we have reduced the length of the seasonal slow speed area of the channel from the Seaboard Coastline Railroad trestle. This portion of the manatee protection area was proposed to be approximately 7.2 km (4.5 miles) in length and has been reduced to approximately 1.6 km (1.0 mile). Based on the comments as well as a more thorough evaluation by our biologists, we have modified our proposed rule to better reflect the best available information regarding manatee use of this area. The final rule designates the portion of the Caloosahatchee River navigation channel from the Seaboard Coastline Railroad trestle downstream to Channel Marker "25" to be slow speed in the channel from November 15 to March 31, and not more than 25 mph in the remainder of the year.

Aerial survey data indicate that manatees do occur throughout this portion of the river throughout the year. However, the analysis of available data by FMRI (FWCC 2002) indicates that manatees are less likely to occur near the navigation channel downstream of the general area of Marker "25." This generally coincides with the change in the physiography of the river in this area. The river narrows upstream of Channel Marker "25" and Beautiful Island and other smaller islands act to further constrict the river. This explains the change in manatee distribution at this point in the river. Manatees are more likely to be found in and near the navigation channel upstream of Marker "25" than downstream. This fact, combined with the above-referenced lower level of boat traffic in this portion of the river relative to areas further downstream, led us to conclude that the existing regulations downstream of Marker "25" were sufficient, whereas increased protection is warranted between Marker "25" and the railroad trestle.

In three segments of the main body of the river, we are establishing "slow speed" shoreline buffers similar to the existing 0.40-km (0.25-mile) shoreline buffers, and are establishing a speed limit not to exceed 40 km per hour (25 mph) between the buffers. In the proposed regulations, the shoreline slow speed buffers would have extended out to within 91 meters (300 feet) of the marked navigation channel. We conducted a more detailed review of the recent special study of the Caloosahatchee River by the Florida Marine Research Institute (FWCC 2002) and it appears that the majority of manatee use in this area occurs within the current 0.40 km (0.25 mile) shoreline buffer. We believe these changes better reflect the known shoreline use patterns of manatees, allow boaters to have more time to avoid manatees should they be encountered between the buffers, and provide manatees greater time to react to oncoming vessels. Our final regulation states that the slow speed shoreline buffers will have a minimum width of 0.40 km (0.25 mile), as marked, recognizing that in some locations signage may be placed at a slightly greater distance from shore in order to provide a more easily identifiable boundary.

While we acknowledge that water depths of 6 feet or greater afford manatees greater opportunity to avoid collisions with watercraft, it does not appear that the 6-foot contour line approximates manatee distribution in this portion of the river, as this contour extends a great distance from shore in this area (particularly from the western shoreline), whereas manatee aerial survey data show manatee use concentrated closer (generally within 0.40 km (0.25 mile)) to shore.

For the portion of the Caloosahatchee River--San Carlos Bay Refuge between the Caloosahatchee River Bridge and the Cape Coral Bridge, we have concluded that the waterborne activities to be regulated per this rule need not include seaplanes. After reviewing the information provided during the public comment period, we have concluded that the seaplane business currently operating on the Caloosahatchee River poses an insignificant and discountable threat to manatees. Based on information provided during the public comment period, the seaplanes operating at this location take off and land in the middle of the river, well outside the existing 0.40 km (0.25 mile) buffer zone. This portion of the river does not receive significant manatee use, based on review of aerial survey and telemetry data. During take-off and landing, the seaplanes are operating at speeds in excess of 40 km per hour (25 mph) for no more than a few seconds over a distance of approximately 457 meters (1,500 feet). Given the location on the river and the short distance involved, it is exceedingly unlikely that seaplanes would encounter manatees while taking off and landing. As such, the final rule has been modified to state that, in this portion of the Caloosahatchee River, all watercraft, except seaplanes, are required to operate at speeds less than 25 mph.

At Redfish Point, we are reducing the downstream extent of the shoreline to shoreline slow speed zone from Channel Marker "82" to Channel Marker "76." This better reflects the known manatee use patterns and provides a slow speed corridor for manatees crossing between the canals of Cape Coral and Deep Lagoon. We conducted a more detailed review of the available data and concluded that sufficient manatee protection could be achieved in this area by reconfiguring and shortening the slow speed zone. Our analysis of aerial and telemetry data indicates that manatee use is greatest between Channel Markers "72" and "76."

In San Carlos Bay, the navigation channel and adjacent waters from Channel Marker "99" south to the Sanibel Causeway will be excluded from regulation. The proposal to make this slow speed would have potentially done more harm than good for manatees utilizing the shallow seagrass flats of San Carlos Bay because the high volume of traffic would likely be diverted to the "Miserable Mile" channel where the manatees occur in the adjacent shallow seagrass flats. The diversion of a high volume of watercraft traffic into an already-congested channel may have also created a human safety issue. The final designation protects the known areas of high manatee use in San Carlos Bay.

In the Lower St. Johns River Manatee Refuge, we have reduced the downstream extent of the manatee protection area from Reddie Point to Channel Marker "73," a distance of about 1.6 kilometers (1 mile). Existing manatee protection measures downstream of Channel Marker "73" to Reddie Point are sufficient, provided that signage is improved by the State, and moving the boundary will improve compliance in the area without compromising manatee protection. We intend to work with the State to improve the signage in the Reddie Point area.

Shoreline buffers in the St. Johns River upstream of the Fuller Warren Bridge have been revised to be from 213 to 305 meters (700 to 1,000 feet) in the river (as marked) and 213 to 274 meters (700 to 900 feet) in Doctors Lake (as marked). This will encompass the areas of highest known manatee use. The adopted zone width will allow us to approximate the current manatee protection area configuration, remedy the posting issue with the current zones, and minimize any perceived increased risk to human safety in Doctors Lake as a result of our action.

In the Halifax and Tomoka Rivers Manatee Refuge, there have been several

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changes. In the Tomoka River we are including only a seasonal slow speed zone in the area currently designated as 40 km per hour (25 mph) immediately downstream of the I-95 bridge. This will protect manatees during their highest use period. We believe the existing slow and idle speed zones in the river to be adequate and the year-round zones are possibly more restrictive than necessary given the seasonality of manatee use.

We are maintaining the current 91-meter (300-foot) slow speed buffer zones in much of the river and are adopting a 40-km-per-hour (25-mph) speed limit between the buffers. This will provide sufficient protection in areas known to be used by manatees and will improve compliance by making the zones easier to understand. It will also avoid creating any additional safety risks to boaters as a result of our action. We had proposed a 305-meter (1,000-foot) buffer in many of these areas. In some cases, these buffers could have compressed high-speed use into very small areas as much of the river is very close to 610 meters (2,000 feet) wide. The practical effect of our proposed rule would have been to make the river slow speed outside the ICW channel. In areas where the river is somewhat wider than 2,000 feet, the proposed rule would have created unregulated "pockets" that would have been difficult or impossible to regulate, and would have been of no practical use to boaters. While our stated intent in proposing a 1,000-foot shoreline buffer was, in part, to make the regulations in this area more understandable and enforceable, the proposed rule would have actually had the opposite effect by creating the unregulated "pockets" discussed above, thereby, potentially compromising manatee protection instead of enhancing it. Additionally, the FWCC noted that manatee use data for this portion of Volusia County are limited and dated. We agree and further note that the limited available data do not support the need for a "slow-speed outside the channel" designation. We have, therefore, concluded that establishment of a 1,000-foot shoreline buffer is not prudent.

Subsequent to the publication of the proposed rule, we also examined possible alternatives for expanding the shoreline buffers to some other distance from shoreline. As stated previously, wider buffers are generally more protective; so expansion of the existing 300-foot buffer to some greater distance would arguably improve manatee protection. As indicated above, the widest possible buffer for the Halifax River would have been 1,000 feet (as proposed), or slow speed outside the channel for all practical purposes, which was determined to be unwarranted. Additionally, the quality of the available data is such that we cannot conclude that substantial evidence supports expansion of the shoreline buffer to some distance other than the currently designated 300 feet. In other words, we conclude that the selection of some other width for the shoreline buffer would be arbitrary. We support the FWCC's ongoing efforts to collect additional data regarding manatee distribution and habitat use in this area, in order to provide for better informed decisionmaking.

In other portions of the Halifax River and adjacent waterbodies north and south of Ponce Inle