2002 Federal Register, 67 FR 59407; Centralized Library: U. S. Fish and Wildlife Service

[Federal Register: September 20, 2002 (Volume 67, Number 183)]
[Rules and Regulations]
[Page 59407-59426]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20se02-20]

[[Page 59407]]

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Part VI

Department of the Interior

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Fish and Wildlife Service

50 CFR Part 17

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH80

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

The West Indian manatee is federally listed as an endangered
species under the ESA (16 U.S.C. 1531 et seq.) (32 FR 4001) and the
population is further protected as a depleted stock under the MMPA (16
U.S.C. 1361-1407). Manatees reside in freshwater, brackish, and marine
habitats in coastal and inland waterways of the southeastern United
States. The majority of the population can be found in waters of the
State of Florida throughout the year, and nearly all manatees winter in
peninsular Florida during the winter months. The manatee is a cold-
intolerant species and requires warm water temperatures generally above
20 [deg]Celsius (68 [deg]Fahrenheit) to survive during periods of cold
weather. During the winter months, most manatees rely on warm water
from natural springs and industrial discharges for warmth. In warmer
months, they expand their range and are seen rarely as far north as
Rhode Island on the Atlantic Coast and as far west as Texas on the Gulf
Coast.
Recent information indicates that the overall manatee population
has grown since the species was listed (U.S. Fish and Wildlife Service
2001). However, in order for us to determine that an endangered species
has recovered to a point that it warrants removal from the List of
Endangered and Threatened Wildlife and Plants, the species must have
improved in status to the point at which listing is no longer
appropriate under the criteria set out in section 4(a)(1) of the ESA.
That is, threats to the species that caused it to be listed must be
reduced or eliminated such that the species no longer fits the
definitions of threatened or endangered. While indications of
increasing population size are very encouraging, there has been no
confirmation that significant threats to the species, including human-
related mortality, injury, and harassment, have been reduced or
eliminated to the extent that the Florida manatee may be reclassified
from endangered to threatened status.
Human activities, and particularly waterborne activities, can
result in the take manatees. Take, as defined by the ESA, means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect,
or to attempt to engage in any such conduct. Harm means an act which
kills or injures wildlife (50 CFR 17.3). Such an act may include
significant habitat modification or degradation that kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding, or sheltering. Harass includes intentional
or negligent acts or omissions that create the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patterns, which include, but are not limited to,
breeding, feeding, or sheltering (50 CFR 17.3).
The MMPA sets a general moratorium, with certain exceptions, on the
take and importation of marine mammals and marine mammal products and
makes it unlawful for any person to take, possess, transport, purchase,
sell, export, or offer to purchase, sell, or export, any marine mammal
or marine mammal product unless authorized. Take, as defined by section
3(13) of the MMPA means to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture, or kill any marine mammal. Harassment is
defined under the MMPA as any act of pursuit, torment, or annoyance
which--(i) has the potential to injure a marine mammal or marine mammal
stock in the wild; or (ii) has the potential to disturb a marine mammal
or marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering.
Human use of the waters of the southeastern United States has
increased dramatically as a function of residential growth and
increased visitation. This phenomenon is particularly evident in the
State of Florida. The population of Florida has grown by 124 percent
since 1970 (6.8 million to 15.2 million, U.S. Census Bureau) and is
expected to exceed 18 million by 2010, and 20 million by the year 2020.
According to a report by the Florida Office of Economic and Demographic
Research (2000), it is expected that, by the year 2010, 13.7 million
people will reside in the 35 coastal counties of Florida. In a parallel
fashion to residential growth, visitation to Florida has increased
dramatically. It is expected that Florida will have 83 million visitors
annually by the year 2020, up from 48.7 million visitors in 1998. In
concert with this increase of human population growth and visitation is
the increase in the number of watercraft that travel Florida waters. In
2001, 943,611 vessels were registered in the State of Florida. This
represents an increase of 42 percent since 1993. The Florida Department
of Community Affairs estimates that, in addition to boats belonging to
Florida residents, between 300,000 and 400,000 boats registered in
other States use Florida waters each year.
The large increase in human use of manatee habitat has had direct
and indirect impacts on this endangered

[[Page 59409]]

species. Direct impacts include injuries and deaths from watercraft
collisions, deaths and injuries from water control structure
operations, lethal and sublethal entanglements with commercial and
recreational fishing gear, and alterations of behavior due to
harassment. Indirect impacts include habitat destruction and
alteration, including decreases in water quality throughout some
aquatic habitats, decreases in the quantity of warm water in natural
spring areas, the spread of marine debris, and general disturbance from
human activities.
Activities affecting manatees at warm water sites include boat
operations, recreational fishing, directed interactions between humans
and manatees (including pursuit by swimmers and boats), and other
disturbances. Specifically, boats operating within manatee
aggregations, anglers casting fishing lines into aggregations, boaters
and/or swimmers pursuing manatees, and other disruptions cause animals
to disperse and become displaced from warm water refuges. Displaced
animals may be exposed to cold water temperatures below known
physiological thresholds. Exposure to cold may cause hypothermia or
cold stress, conditions known to kill manatees (Worthy 1999). In
addition, prolonged, nonlethal exposure to cold may affect calving
success and fecundity (Rommel 2002).
Tyson (1998) documented boating and fishing activity in warm water
discharges. Observations included anglers maneuvering boats within
manatee aggregations, boat operators looking for and petting manatees,
boaters attempting to swim with manatees, anglers wading and casting
into manatee aggregations, manatees being hooked and maneuvered while
entangled, a manatee struck with an anchor, manatees being provided
with water, etc. These activities resulted in the displacement of
animals, manatees hooked or entangled in fishing line, possible boat
strikes, and other adverse interactions. Swimmer interactions were
further documented by Wooding (1997) at Three Sisters Springs, Citrus
County, Florida. Some manatees left the then unprotected spring area
when boats with swimmers approached at the start of the day. Other
manatees left when the first swimmers entered the water. Those that
remained either ignored swimmers or turned and swam out of reach; a
small number sought out physical contact with swimmers. Gorzelany
observed manatees being ``crowded out'' (displaced) by large numbers of
swimmers searching out encounters with wintering manatees (Mote Marine
Laboratory, pers. comm. 2001).
Anglers have been observed casting into manatee aggregations at
warm water sites, hooking and entangling manatees. Discarded fishing
line, at times caught on water bottoms, plants, and structures, is also
known to entangle manatees and is occasionally ingested by manatees.
Entangled monofilament fishing line may cut into the manatees' skin;
manatees are frequently scarred by these cuts and flippers are
occasionally amputated through the cutting effect of the line. There
are records of manatees having died from entanglements due to infection
and septicemia associated with these injuries. Manatees ingesting
fishing line and hooks are known to die from intestinal obstructions,
tears in the gut, and other complications.
In 2001, fifteen manatees were rescued from fishing gear, including
seven from monofilament line. The number of such incidents has been
increasing over time; in the early phases of the program, no more than
one or two incidents were documented per year. Recent annual totals
have ranged between ten and fifteen reported incidents. Since 1973, a
total of 124 gear-associated manatees has been rescued, including 50
from monofilament entanglement and ingestion (U.S. Fish and Wildlife
Service, unpubl. data). In addition to these rescues, at least 14
deaths have been attributed to monofilament fishing line and others are
suspected (Florida Fish and Wildlife Conservation Commission, unpubl.
data.).
Boats operating within and adjacent to warm water aggregations of
manatees pose an additional threat to wintering manatees, since
manatees are killed or injured as a result of collisions with
watercraft. In 2001, at least 25 percent (82 of 325) of known manatee
deaths were caused by watercraft. This was the second highest year on
record (out of more than 27 years of monitoring) for total number of
watercraft-related manatee deaths. Nonlethal injuries are also
documented by researchers who monitor the accumulation of scars from
boat strikes on individual manatees on an annual basis. As documented
by the U.S. Geological Survey's database, most animals that are known
to have been struck are struck multiple times. Such nonlethal injuries
may reduce calf production and survival in wounded females (O'Shea et
al. 2002). The likelihood of adverse manatee encounters with watercraft
increases in the vicinity of wintering sites because of the greater
concentration of animals within these confined areas.
The State of Florida's manatee carcass salvage program has
documented the presence of watercraft-killed manatees within the
vicinity of warm water discharges. While the presence of a carcass does
not necessarily indicate that a collision occurred at that site, there
are a few cases where collisions have been documented at warm water
sites. In one instance, a tug/barge maneuvering within the approach to
a warm-water aggregation site ran over a manatee, crushing and killing
the animal between the hull and the water bottom (Florida Fish and
Wildlife Conservation Commission, unpubl. data.). In Lee County, two
manatees using a secondary warm-water site located at the foot of a
navigation lock were struck and killed by watercraft operating nearby
(Florida Fish and Wildlife Conservation Commission, unpubl. data.).
Researchers monitoring winter manatee aggregations have noted the
frequent and regular occurrence of nonlethal, fresh cuts on animals
using these sites, particularly at the outset of the winter season
(Hartley, Florida Division of Parks and Recreation, pers. comm. 2001;
Curtin, U.S. Geological Survey (USGS) Contractor, pers. comm. 2001).
To minimize disturbance at both industrial and natural warm water
sites, we and the State of Florida have implemented a series of Federal
sanctuaries and State protection areas at and near these sites to
ensure that wintering manatees are minimally disturbed during this
critical time of year. To date, the majority of known warm water sites
used by manatees in Florida have been protected. However, the sites
designated in this rule provide additional protection or enhance
existing protection areas.
Federal authority to establish protection areas for the Florida
manatee is provided by the ESA and the MMPA, and is codified in 50 CFR,
part 17, subpart J. We have discretion, by regulation, to establish
manatee protection areas whenever there is substantial evidence showing
such establishment is necessary to prevent the taking of one or more
manatees. In accordance with 50 CFR 17.106, areas may be established on
an emergency basis when such takings are imminent.
We may establish two types of manatee protection areas--manatee
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR
17.102, is an area in which we have determined that certain waterborne
activities would result in the taking of one or more manatees, or that
certain waterborne activities must be restricted to prevent the taking
of one or more

[[Page 59410]]

manatees, including but not limited to, a taking by harassment. A
manatee sanctuary is an area in which we have determined that any
waterborne activity would result in the taking of one or more manatees,
including but not limited to, a taking by harassment. A waterborne
activity is defined as including, but not limited to, swimming, diving
(including skin and scuba diving), snorkeling, water skiing, surfing,
fishing, the use of water vehicles, and dredge and fill activities.

Manatee Settlement Agreement

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

Site Selection Process and Criteria

In our initial evaluation of ``imminent'' threat of take at sites
that may warrant protection through our emergency sanctuary/refuge
designation authority, which we conducted in 2000-2001, we did not
identify any sites where takings met this standard. In evaluating
whether these sites required emergency protection, we had to determine
whether take would occur in a specific amount of time. For example,
large numbers of animals concentrated in a relatively small area are
much more likely to become an attraction for humans or may be unable to
avoid the passage of boats. We also evaluated whether or not there was
a history of harassment or other forms of take at the site and the
likelihood of future take, including the type of recent mortality. We
further considered whether there were existing protective measures in
place to prevent manatee mortality. Finally, we looked at whether the
type of take that had occurred would likely be avoided by additional
protective measures.
In preparation for making a decision on sites to propose as manatee
protection areas, we met with representatives from local, State, and
Federal agencies and organizations involved in manatee research,
management, and law enforcement. These meetings helped us develop a
list of sites throughout Florida and southeast Georgia that manatee
experts believed should be considered for possible designation as
manatee protection areas.
We published an advance notice of proposed rulemaking in the
Federal Register on September 1, 2000 (65 FR 53222). The purpose of the
advance notice was to inform the public that we were initiating the
process of investigating areas for possible designation as manatee
protection areas and to solicit initial public input. We received 1,752
responses to the advance notice. Of these, 1,737 supported our efforts
to establish additional manatee protection areas, and 13 opposed them.
The remaining two comments did not state a specific opinion.
We also conducted six public workshops throughout peninsular
Florida to present the list of potential sites and to solicit public
input. A total of 396 people attended the workshops, and 166 provided
either oral or written comments. Of these, 79 were general in nature,
either supporting our efforts to establish additional manatee
protection areas (40) or opposing them (39); 28 participants
specifically opposed and 8 specifically supported the areas. An
additional 36 comments were not specific to the topic or discussed
other items. Fifteen commentors provided specific information or
comments, including recommendations to increase enforcement, increase
education, use new technology including satellite tracking of manatees,
and other rule-related topics.
We selected sites to propose as manatee protection areas from the
list of sites developed through the preliminary meetings and from
information gathered at the public workshops and responses to the
advance notice. We based site selection on four factors--(1) evidence
that the site is used by manatees; (2) historic evidence of take (harm
or harassment) at the site due to waterborne human activities; (3) the
potential for additional take based on manatee and human use of the
site; and (4) a determination that we could implement effective
measures at the site to address the identified problem.
In documenting manatee use and historic manatee harm and
harassment, we relied on the best available information, including
aerial survey and mortality data and additional information from the
Florida Marine Research Institute and the USGS Sirenia Project. These
data were supplemented with information from manatee experts, the
public, and our best professional judgment. In determining the
potential effectiveness of our proposed actions, we considered the
costs of managing and enforcing manatee protection areas and the
benefits (or lack thereof) to manatee conservation. Costs associated
with site management include installation and maintenance of
appropriate signage, public education, and enforcement. In addition,
designation of sanctuaries in the waters bordered by private property
entail additional administrative burdens in terms of identifying and
providing access to affected residents. Finally, we evaluated the
effectiveness of our proposed actions against the likely effectiveness
of anticipated similar actions by State and/or local governments. It
was our goal to avoid sites that could be most effectively addressed by
State or local government and we have made every effort to make our
designations consistent with the existing adjacent State or local
designations.

Previous Federal Action

On August 10, 2001, we published in the Federal Register a proposed
rule to establish 16 additional manatee protection areas (66 FR 42318),
including the seven areas designated in this emergency rule. In the
proposed rule, we requested all interested parties to submit factual
reports or information that might contribute to the development of a
final rule. We sent direct notification of the proposal and public
hearings to 3,258 institutions and individuals, including Federal and
State agencies, county governments, scientific organizations, and
interested parties. We published legal notices announcing the proposal,
inviting public comment, and announcing the schedule for public
hearings, on August 30, 2001, in the Fort Myers News-Press, Citrus
County Chronicle, Daytona Beach News-Journal, and Naples Daily News, on
August 31, 2001, in the St. Petersburg Times, Miami Herald, Orlando
Sentinel, Charlotte Sun-Herald, and Tallahassee Democrat, and on
September 4, 2001, in Florida Today. The comment period closed on
October 9, 2001. We held the public hearings at the Plantation Inn and
Conference Center in Crystal River, Florida, on September 10, 2001;
Harborview Convention Center in Clearwater, Florida, on September 11,

[[Page 59411]]

2001; Holiday Inn in Venice, Florida, on September 12, 2001; and the
Radisson Hotel & Conference Center in Melbourne, Florida, on September
13, 2001. Approximately 315 people were in attendance at the public
hearings. We received oral comments from 121 individuals.
During the comment period, we received approximately 3,500 written
and oral comments concerning the proposal. Most expressed opposition
to, or concern about, the proposed designation; however, a number of
individuals supported the proposed action. Opposition to the proposed
designation primarily centered on perceived economic effects and
potential inconvenience to boaters resulting from the action, and the
adequacy of current State conservation actions to protect the manatee.
We received comments from one State agency and the Governor of Florida.
The remaining comments were from individuals or representatives of
organizations or groups. The Governor of Florida stated support for the
proposed action. On January 7, 2002, we published a final rule that
established two additional manatee protection areas located within the
water bodies commonly known as the Barge Canal and Sykes Creek, in
Brevard County (67 FR 680). We will publish in the Federal Register a
final decision on the manatee protection areas included in this
emergency rule and the seven remaining manatee protection areas from
the August 10, 2001, proposed rule no later than November 1, 2002. In
addition to publishing this rule in the Federal Register, we will post
it on our website and publish notice in the following newspapers:
Citrus County Chronicle, Orlando Sentinel, St. Petersburg Times,
Sarasota Herald-Tribune, Tallahassee Democrat, and Tampa Tribune.

Reasons for Emergency Determination

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

[[Page 59412]]

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

Effective Date

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

Definitions

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

Exceptions

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

Areas Designated as Manatee Sanctuaries and Refuges by Emergency Rule

Blue Waters Manatee Sanctuary

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

[[Page 59413]]

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

Tampa Bay Manatee Sanctuaries and Refuges

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

Bartow Electric Generating Plant Manatee Sanctuary

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

South Gandy Navigation Channel Manatee Refuge

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

Tampa Electric Company's Big Bend Manatee Sanctuary

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

[[Page 59414]]

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

Tampa Electric Company's Big Bend Manatee Refuge

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

Port Sutton Manatee Sanctuary

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

Port Sutton Manatee Refuge

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

Clarity of the Rule

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

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action. The Office of Management and
Budget makes the final determination under Executive Order 12866.
a. This rule will not have an annual economic impact of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit analysis is
not required. We do not expect that any significant economic impacts
would result from the establishment of four manatee sanctuaries (264.5
acres) in Citrus, Pinellas, and Hillsborough counties and three manatee
refuges (402.7 acres) in Pinellas and Hillsborough counties in the
State of Florida. The public support for manatee protection is
substantial in Florida. Using a contribution continuum method
reinforced by other empirical techniques, a study by Bendle and Bell in
1993 estimated that Floridians placed an asset value of $3.2 billion
(2001

[[Page 59415]]

dollars) on the protection of the manatee population. This amounts to a
per-household value of $18.12. The $3.2 billion is an estimate of the
benefit derived by Floridians from the existence of the manatee
population.
The purpose of this rule is to establish seven additional manatee
protection areas in Florida. We are proposing to reduce the level of
take of manatees by controlling human activity in these seven areas.
Affected waterborne activities include, but are not limited to,
swimming, diving (including skin and scuba diving), snorkeling, water
skiing, surfing, fishing, the use of water vehicles and dredging and
filling activities. Designated areas include four no-entry areas, two
idle-speed areas, and one slow-speed area. In all seven areas,
waterborne activities will be restricted on a seasonal basis. The
economic effect of these designations will be measured by the number of
users who use alternative sites for their activity or have a reduced
quality of the waterborne activity experience at the designated sites.
The State of Florida includes 12,000 miles of rivers and streams and 3
million acres of lakes and ponds; the designation of 264.5 acres of
sanctuaries and 402.7 acres for refuges is unlikely to prevent any
waterborne activity because of this rule, although some individuals may
need to modify slightly when, where, or how they pursue certain
waterborne activities.
For some watercraft users, the inconvenience and extra time
required to cross slow- and idle-speed areas will reduce the quality of
the waterborne activity. The extra time required for commercial charter
boats to reach fishing grounds will reduce on-site fishing time and
could result in lower consumer surplus for the trip. The number of
recreationists and charter boats using the designated sites is not
known. The State of Florida has 943,611 registered boats, but only
those boats and recreationists using the designated sites will
potentially be affected. Because Florida has 12 thousand miles of
rivers and streams and 3 million acres of lakes and ponds, only a small
percentage of boat users will likely be affected by this rule.
Recreationists may be inconvenienced by having to travel to non-
designated areas. Currently, no data sources estimate the amount of
recreational activity in and around the designated areas. The current
designation of these sites will cause some inconvenience, but
alternative sites within the proximity of the sites are available for
all waterborne activities. For these reasons, we believe some
inconvenience to the public may occur because of reduced travel speeds
but that the economic impact will not be significant.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This rule
is consistent with the approach used by State and local governments to
protect manatees in Florida. We recognize the important role of State
and local partners, and we continue to support and encourage State and
local measures to improve manatee protection. We have focused the
current action on those sites in which we have determined that Federal
action can effectively address the needs in the particular area. If
comparable or similar protections are put in place in the future, we
will consider removing those areas from Federal protection.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Minimal restrictions to existing human uses of the sites will result
from this rule, and no entitlements, grants, user fees, loan programs
or the rights and obligations of their recipients will be affected.
d. This rule will not raise novel legal or policy issues. We have
previously established manatee protection areas.

Regulatory Flexibility Act

I certify that this rule will not have a significant economic
effect on a substantial number of small entities as defined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial/final
Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
We conducted public hearings and public notice and comment periods
to determine activities that might be affected by the creation of these
manatee protection areas. Based on the activities that we are aware of
being conducted in these areas and the fact that some may be
inconvenienced by the need to proceed at slower speeds or use alternate
sites, we believe that this rule will not result in a significant
economic dislocation.
To determine the potential effects of this rule on small entities,
we looked at economic data from Citrus, Pinellas, and Hillsborough
Counties. Table 1, below, depicts general economic characteristics, and
Table 2 gives employment data. As can be seen in Table 1, the growth
rate in per capita income is slower than the State average in Citrus
County, but the rate of growth in total personal income is equal to or
exceeds the State average except in Pinellas County, where it is
slightly lower. Larger households account for the lower per capita
income estimates in Citrus and Hillsborough Counties. The proportion of
total industry earnings coming from the amusements and recreation
sector ranges from 0.8 percent in Citrus and Pinellas Counties to 1.4
percent in Hillsborough County. All of these counties had the service
sector as the largest economic contributor followed by retail trade and
the real estate sectors. Overall, the affected counties had only a
small proportion of earnings coming from the amusement and recreation
sector. As a result, a small impact to the recreation sector would not
result in a significant effect on county-level income.

Table 1.--Economic Characteristics of the Three Affected Counties in Florida--1997
--------------------------------------------------------------------------------------------------------------------------------------------------------
Services
industry
Per capita 10-year 10-year Total earnings
personal rate of Personal rate of industry for Percent of
Affected Florida counties Employment income growth income growth earnings amusements total
(dollars) (percent) ($000) (percent) ($000) and
recreation
($000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Citrus.......................................... 35,663 $18,493 3.9 $2,060,1672 6.9 $793,347 $6,650 0.8
Pinellas........................................ 506,946 28,367 4.9 24,770,929 5.5 13,876,518 114,826 0.8
Hillsborough.................................... 644,694 23,719 5.2 1,558,783 6.6 18,847,236 67,676 1.4
State of Florida................................ 8,032,538 24,799 4.5 363,979,647 6.6 220,985,959 4,255,304 1.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: http://govinfo.library.orst.edu/cgi-bin/reis-list.

[[Page 59416]]

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

Table 2 provides employment data using Standard Industrial
Classification (SIC) codes. The latest available published data
pertained to 1997 for the total number of establishments in the SIC
codes for fishing, hunting, trapping (SIC code 9), water transportation
(SIC code 44), miscellaneous retail and services (SIC code 59),
amusement and recreation services (SIC code 79), and nonclassifiable
establishments. These are the establishments most likely to be directly
associated with recreationists pursuing waterborne activities where
manatees may be involved. As can be seen on Table 2, of the total
number of establishments in these SIC codes, a large proportion employ
fewer than 9 employees with the largest number of establishments
employing fewer than 4 employees. If any economic impacts are
associated with this rule, they will affect some proportion of these
small entities.
Since the bulk of the acreage proposed (402.7 acres) by this rule
is for manatee refuges, which would only require a reduction in speed,
we do not believe the minor inconvenience caused by going slower in
designated areas will cause more than an insignificant economic effect.
The inconvenience may cause some recreationists and charter boats to go
to alternative sites, which may cause some loss of income to some small
businesses. However, the inconvenience is small so we believe that this
will not be a significant economic dislocation. For the four areas
designated as sanctuaries (264.5 acres), the restriction on human
activity from October 1 to March 31 may cause some recreationists and
charter boats to go to alternative sites. However, three of the areas
designated are in front of power plants, and the fourth (Blue Waters)
is only 4.145 acres. The designated areas are relatively small and part
of large water bodies having large areas with no restrictions on human
activity. Recreationists and charter boats can pursue waterborne
activities in close proximity to the manatee sanctuaries without
entering the sanctuaries. For this reason, we believe that there will
be an insignificant economic effect from the designation of the four
areas as manatee sanctuaries. Without a significant change in
recreationists' and charter boats' use patterns, there should be an
equally insignificant change in business activity.

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates Reform Act

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

Takings

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

Federalism

In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on the
State, in the

[[Page 59417]]

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

Civil Justice Reform

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a Government-to-Government basis. We have evaluated possible
effects on federally recognized Indian tribes and have determined that
there are no effects.

Energy Supply, Distribution or Use (Executive Order 13211)

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this rule is
not a significant regulatory action under Executive Order 12866 and it
only requires vessels to seasonally avoid four areas (107.1 ha or 264.5
acres) or proceed at slow or idle speeds along three small segments
(163 ha or 402.7 acres) of waterways in Florida, it is not expected to
significantly affect energy supplies, distribution, and use. Therefore,
this action is a not a significant energy action and no Statement of
Energy Effects is required.

References Cited

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

Author

The primary author of this document is Jim Valade (see ADDRESSES
section).

Authority

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

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
record-keeping requirements, Transportation.

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

2. Amend Sec. 17.108 as follows:
a. Revise the introductory text of paragraph (a);
b. Remove the Kings Bay map from the end of the section and
reinsert it following paragraph (a)(7); and add a note to precede the
map;
c. Add paragraphs (a)(8) through (a)(11);
d. Revise paragraph (b);
e. Add paragraphs (c)(3) through (c)(5).
The revised and added text reads as follows:

Sec. 17.108 List of designated manatee protection areas.

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

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

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

[[Page 59418]]

[GRAPHIC] [TIFF OMITTED] TR20SE02.037

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

[[Page 59419]]

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

[[Page 59420]]

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

[[Page 59421]]

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

[[Page 59422]]

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

[[Page 59423]]

[GRAPHIC] [TIFF OMITTED] TR20SE02.041

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

[[Page 59424]]

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

[[Page 59425]]

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

[[Page 59426]]

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