[Federal Register: May 8, 2003 (Volume 68, Number 89)]
[Proposed Rules]               
[Page 24700-24704]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AH86

Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal. Availability of Record of Decision.


SUMMARY: We, the Fish and Wildlife Service (Service) have determined 
that we are unable to authorize the incidental, unintentional take of 
small numbers of Florida manatees (Trichechus manatus latirostris) 
resulting from governmental activities related to the authorization, 
regulation, or funding of watercraft and watercraft access facilities 
within certain regions of the species' range in Florida. Comments and 
new information received during the public comment period for our 
proposed rule to authorize such incidental take raised significant 
questions about the standards, information, and analytic methodologies 
appropriate for making the necessary findings. These significant 
questions preclude us from finding that incidental takings of Florida 
manatee resulting from these governmental activities will have a 
negligible impact on any of the four stocks in Florida. The Marine 
Mammal Protection Act (MMPA) does not allow us to authorize incidental 
take unless we are able to find that the total authorized incidental 
take will have no more than a negligible impact on the species or 
stock. Therefore, pursuant to 50 CFR 18.27(d)(4), we are making 
negative findings for all four stocks. Consistent with this 
determination we are withdrawing our November 2002 MMPA proposed rule 
to authorize the incidental take of Florida manatees.
    We published a proposed regulation and announced the availability 
of a Draft Environmental Impact Statement (DEIS) in the Federal 
Register on November 14, 2002. We announced the availability of a Final 
Environmental Impact Statement (FEIS) for this decision on April 4, 
2003. Responses to comments received during the public comment period 
for the proposed rule and DEIS are available in Appendix N of the FEIS. 
Through this notice, we are also announcing the availability of the 
Record of Decision related to the FEIS.

ADDRESSES: If you wish to review the FEIS and Record of Decision, 
obtain copies by any one of the following methods:
    1. You may visit our Web site at http://northflorida.fws.gov.
    2. You may request a copy by electronic mail (e-mail) to 
manatee@fws.gov.    3. You may write the Field Supervisor, Jacksonville Field Office, 
U.S. Fish and Wildlife Service, 6620 Southpoint Drive, South, Suite 
310, Jacksonville, Florida 32216.
    4. You may call the Jacksonville Field Office, 904/232-2580, during 
normal business hours from 8 a.m. to 4:30 p.m.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, at the above address 
(telephone 904/232-2580; or visit our Web site at http://northflorida.fws.gov



    On November 14, 2002, the Service published a proposed rule to 
authorize the incidental, unintentional take of small numbers of 
Florida manatees (Trichechus manatus latirostris) resulting from 
government activities that authorize and regulate watercraft and 
watercraft access facilities in Florida. Under the provisions of the 
MMPA of 1972 (16 U.S.C. 1361-1407), all take, including incidental 
take, is prohibited unless otherwise authorized. To date, there is no 
authorization for the incidental, unintentional death, injury, or 
harassment of Florida manatees caused by these otherwise legal 
activities. In the proposed rule, we examined the issue of take of 
Florida manatees to determine whether the incidental, unintentional 
take of manatees could be authorized.
    The Secretary of the Interior may authorize the incidental taking 
of small numbers of marine mammals resulting from specified activities 
in a specified geographic area pursuant to 16 U.S.C.

[[Page 24701]]

1371(a)(5)(A) of the MMPA if the Secretary finds, based on the best 
scientific evidence available, that the total authorized taking for the 
authorized period will have no more than a negligible impact on the 
species or stock. Negligible impact is defined as ``* * * an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' (50 CFR 18.27(c)).
    If a negligible impact finding is made, specific regulations must 
be established for the activities that describe permissible methods of 
taking; means of effecting the least practicable adverse impact on the 
species and its habitat; and requirements for monitoring and reporting. 
If the Secretary cannot find that the total taking will have a 
negligible impact on the species or stock, the Secretary must publish a 
negative finding in the Federal Register along with the basis for such 
a determination (50 CFR 18.27(d)(4)).

Manatee Lawsuit Settlement

    In Save the Manatee Club, et al. v. Ballard, et al., Civil No. 00-
00076 EGS (D.D.C.), several organizations and individuals filed suit 
against the Service and the U.S. Army Corps of Engineers alleging 
violations of the MMPA, the Endangered Species Act of 1973, as amended 
(ESA) (16 U.S.C. 1531-1543), the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321 et seq.), and the Administrative Procedure Act 
(APA) (5 U.S.C. 551 et seq.). Four groups representing development and 
boating interests intervened. Following extensive negotiations, a 
settlement agreement was approved by the court on January 5, 2001. 
Under the terms of the settlement, the Service agreed to take several 
actions, including pursuing a rulemaking proceeding to adopt incidental 
take regulations under the MMPA. According to the settlement agreement, 
draft and final products were due on November 5, 2002, and May 5, 2003, 
respectively. The agreement further specified that, if, during the 
rulemaking process, we determined that requirements of the MMPA could 
not be met, then we must submit a negative finding to the Federal 
Register by May 5, 2003.
    Beginning in January 2001, the Service held a series of meetings 
with the affected agencies to discuss the scope of government 
activities and incidental take rulemaking. At the Manatee Population 
Ecology and Management Workshop in April 2002, the Service discussed 
the issue of incidental take rulemaking with scientists and managers 
involved in manatee research and conservation. On June 10, 2002, the 
Service published a notice in the Federal Register (67 FR 39668) 
announcing our intent to prepare an EIS to evaluate the effects on 
manatees of a rulemaking to authorize incidental take; public comments 
were solicited. On November 14, 2002, the Service published in the 
Federal Register (67 FR 69077) a proposed rule and notice of 
availability for the Draft EIS and announced six public hearings and 
the commencement of the public comment period. We published a notice on 
November 29, 2002, announcing a seventh public hearing (67 FR 71127). 
In December 2002, the Service conducted seven public hearings 
throughout Florida. On January 9, 2003, we extended the public comment 
period from its original closing date of January 13, 2003, to January 
27, 2003 (68 FR 1175).
    In response to these notices, meetings, and public hearings, over 
8,000 written comments were received. The majority of these comments 
related to manatee population issues; NEPA, ESA, and MMPA concerns; 
recommendations regarding the proposed determination of negligible 
impact under the MMPA; identification of information needs believed 
necessary to adequately address issues of concern; and socioeconomic 
and public involvement concerns. The comments and our responses are 
provided in Appendix N of the FEIS. The Service refined the Incidental 
Take Model, an analytic tool; examined and fully considered all 
comments submitted by the public; and released a Final Environmental 
Impact Statement (FEIS) on March 26, 2003, with a notice of 
availability published in the Federal Register on April 4, 2003 (68 FR 
    We identified four distinct stocks of the Florida manatee, which we 
call the Upper St. Johns River, the Northwest, the Atlantic, and the 
Southwest stocks. In addition to the No Action Alternative, the FEIS 
evaluated a range of action alternatives that included findings of 
negligible impact for between one (Upper St. Johns River) to three 
stocks (Upper St. Johns River, Northwest, and Atlantic). The FEIS 
presented information, including new information, as well as a 
comparison of results from different methodologies for determining 
negligible impact. The FEIS also identified areas of uncertainty in 
various methodologies, stated pertinent information needs, and 
presented criticisms of each methodology and of our population 
benchmark criteria.

Proposed Rule

    In the proposed rule, we made the following findings with respect 
to the effects of watercraft-related incidental take on each stock--(1) 
Current levels of watercraft-related incidental take were having a 
negligible impact on the Upper St. Johns River and Northwest stocks; 
(2) current incidental take levels were having a greater than 
negligible impact on the Atlantic stock, but incidental take could be 
reduced to the negligible level with implementation of additional 
mitigating measures; and (3) current levels of incidental take were 
having a greater than negligible impact on the Southwest stock, and 
mitigating measures were not available to reduce this take to a 
negligible level.
    The rationale behind the negligible impact threshold presented in 
the proposed rule was: In terms of stocks that are depleted (i.e., 
population levels below Optimum Sustainable Population (OSP)), it is 
generally accepted that the large majority of annual net productivity 
must be reserved for the recovery of the stock to its OSP level, and 
that only a small portion should be allocated for incidental take, so 
that human-related take does not significantly increase the time needed 
to reach OSP. Therefore, based on our interpretation of the MMPA, its 
implementing regulations, previous incidental take rulemakings, and our 
current understanding of manatee population dynamics, we concluded 
that, in order for us to determine that the allowable level of human-
related incidental take would have a ``negligible impact,'' we must be 
reasonably certain that the take would not significantly increase the 
time needed to achieve OSP (67 FR 69086). Our negligible impact 
standard, based on the above rationale, was reasonable certainty that 
authorized incidental take will not significantly increase the time 
needed to reach OSP (67 FR 69086). OSP is defined in the MMPA as ``the 
number of animals which will result in the maximum productivity of the 
population or the species, keeping in mind the carrying capacity of the 
habitat and the health of the ecosystem of which they form a 
constituent element'' (16 U.S.C. 1362).
    We relied on criteria developed through the ESA recovery planning 
process to assess the status of the manatee stocks against the 
negligible impact standard. The proposed rule stated that, as concluded 
in the newly revised Florida Manatee Recovery Plan, the Florida manatee 
population could be considered to be ``healthy'' and able to sustain 
itself after the demographic benchmarks were met for all four stocks

[[Page 24702]]

based on at least a 20-year data set. Assuming that none of the stocks 
were severely depleted when data collection relative to the demographic 
benchmarks began (in the late 1970s and 1980s), 20 years of continued 
growth at the benchmark rates would in all likelihood result in stocks 
that are within or near the range of OSP. As such, we believed it was 
reasonable to assume that achievement of the demographic benchmarks 
would result in a population that is within or near the range of OSP, 
and that the negligible impact threshold would be that level of 
incidental take that does not significantly increase the time needed to 
achieve the demographic benchmarks (67 FR 69087).
    Applying these standards to the best information available at the 
time of the proposed rule, we concluded that the Northwest and Upper 
St. Johns River stocks were currently meeting the demographic 
benchmarks and were progressing toward OSP at a biologically acceptable 
rate (i.e., current incidental take was having a negligible impact). 
Regarding the Atlantic stock, we determined that it was close to the 
demographic benchmarks, and would meet the negligible impact standard 
provided additional mitigation measures were implemented to reduce 
take. The Southwest stock was not close to meeting the demographic 
benchmarks, so we proposed a negative finding with respect to that 
stock. We stated that it might be possible to refine this analysis for 
the final rule using a stochastic manatee population model (67 FR 
69091), which will be referred to hereafter as the ``Incidental Take 
Model.'' The Incidental Take Model structure was described in the 
proposed rule and DEIS, but was not completed at the time the proposed 
rule was published. It was included in Appendix I of the FEIS.

Discussion and Findings

Standards and Assumptions

    Some of the standards and assumptions that supported our proposed 
rule have been questioned. This includes criteria for quantifying 
negligible impact and assumptions about OSP and the status of each 
stock (including population growth rate).
    We quantified the negligible impact standard as that which would 
not exceed a five percent probability of delaying a stock's time to 
reach its OSP by no more than 10 percent. The specific probability and 
delay values were selected based on standards used by other agencies 
for other types of regulations under the MMPA, and because the 95 
percent probability is frequently used in statistical decision-making. 
We are currently considering whether this is an appropriate standard 
for incidental take caused by watercraft.
    We also assumed that, if historical population levels were 
sufficiently high relative to carrying capacity, continued growth at 
the benchmark rates would result in population levels that are within 
or near OSP. This assumption played a role in our conclusions that 
current levels of watercraft-related take are either not currently 
delaying the time to reach OSP or are mitigable, depending on the 
    Information developed during the rulemaking process, but not 
available until after the DEIS and proposed rule were published and 
made available, calls into question some of the assumptions upon which 
our analysis was based. One of the uncertainties raised by the new 
information is that all four stocks may be further from OSP, and 
growing at a slower rate than we originally thought. In short, new 
information challenges the verity of the assumptions that we built into 
our negligible impact criteria.
    We are also reconsidering the use of the recruitment benchmark 
because we have no data that allow us to generate confidence intervals 
for the percent of females with first and second year calves, which 
undermines our current ability to evaluate the status of the stocks 
against this benchmark.
    In summary, some of the assumptions relied upon in our negligible 
impact criteria and standards have been called into question. Key among 
these are:
    [sbull] The assumption that achievement of demographic benchmarks 
developed through an ESA recovery plan will result in a population that 
is within or near the range of OSP;
    [sbull] The recruitment benchmark, which is complicated by gaps in 
our understanding of the percent of females with first and second year 
    [sbull] The biological implications of our assumptions about the 
linkage between (1) stock status, and (2) population benchmarks;
    [sbull] The significance of various probabilities of delay in the 
time to reaching OSP; and
    [sbull] The time it takes to reach OSP.

New Information

    We gained significant information about manatee populations and 
trends after the proposed rule and DEIS were made available to the 
public. Some fundamental questions about our understanding occurred as 
a result of collecting the information necessary to refine the 
Incidental Take Model. The most important new information included new 
estimates of watercraft-related mortality, age-related survivorship, 
trends in carrying capacity, and demographic trends in the Atlantic 
    New information about carcass recovery suggests that rates vary 
significantly by stock, which challenges our estimates of watercraft-
related mortality in all four stocks. Manatee carcass recovery rate is 
our leading indicator of the fraction of mortality due to watercraft. 
The carcass recovery rate (the fraction of dead manatees recovered by 
the carcass salvage program) plays a role in the calculation of 
negligible impact, because it serves as the link between the numbers of 
observed and actual watercraft-related mortalities. The fraction of 
mortality due to watercraft also can be used to calculate the survival 
rate in the absence of take, hence the degree to which take-reduction 
could improve the population growth rate. Both of these quantities have 
only recently been estimated from Florida Marine Research Institute 
data, and a peer review of the analysis has not been conducted. 
Further, only a point estimate for recovery rate in each region is 
available, which means that we do not yet have an expression for the 
uncertainty in that rate.
    New information about carrying capacity suggests that it may 
decline over the next 3 to 60 years, which would affect density-
dependent life history and management functions of the Florida manatee. 
The limiting factor for the carrying capacity of each stock is warm 
water refugia. Each stock of Florida manatees is variably dependent on 
natural and artificial warm water refugia, such as springs, sewerage 
outfalls, and power plant discharges. Preliminary information presented 
in the Incidental Take Model, but not yet peer reviewed, suggests that 
a reduction in total warm water carrying capacity is possible, if not 
likely, in the near future. This would suggest that OSP will change 
over time. Our implicit assumption of a stable OSP is challenged by 
this information. This, in turn, has implications for our 
interpretation of total population estimates, and our assumption that 
none of the stocks were severely depleted based on the demographic 
    We also are considering how information gaps may affect our ability 
to make a negligible impact determination for Florida manatee. The most 
important information gap is our limited understanding of density-
dependent effects on manatees.

[[Page 24703]]


    Questions have been raised about the analytic methods we proposed 
to use to determine negligible impacts. We stated that, to be 
negligible, authorized incidental take must be reasonably certain not 
to significantly delay the time to reach OSP. We also said that the 
final determination may be informed by an Incidental Take Model (which 
was presented in the DEIS, or a refined version, included in the FEIS 
as Appendix I). Comments received during the comment period included 
suggestions for two alternative methodologies, the Potential Biological 
Removal (PBR) level, and a method which we characterize as the Fraction 
of Excess Growth (FEG) method.
    The PBR for each species or stock of marine mammal is calculated as 
part of the Stock Assessment required under section 117 of the MMPA, 
and is defined as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its OSP. PBR is typically used 
for determinations for the purpose of regulating commercial fishing 
activities under the MMPA, but is not used by the Department of the 
Interior for analyzing incidental take for activities other than 
commercial fishing.
    The FEG method assumes that negligible impact includes both a delay 
in time to reach OSP and a percent of annual growth harvested through 
incidental take functions. As suggested, this method concludes that any 
incidental take that delays the time to reach OSP by 10 percent or 
more, or that harvests 10 percent or more of annual growth rate, 
exceeds negligible levels.
    The Incidental Take Model is based on a model developed by USGS and 
presented at the April 2002 Manatee Population Ecology and Management 
Workshop. The model projects population trends for each of the four 
manatee stocks based on repeated simulations that incorporate 
environmental and demographic variability, as well as varying levels of 
human-related take. In the proposed rule, we stated that the initial 
model used the best available science, and that the Manatee Population 
Ecology and Management Workshop attendees believed that it was the most 
suitable model for use in the negligible impact determination. However, 
the Incidental Take Model currently projects population trends, 
including the negligible impact criteria, in 20-year increments, which 
exceeds the 5-year increments required in the MMPA. This approach is 
currently being assessed.
    The qualitative assessment methodology used the initial results of 
the April 2002 version of the Incidental Take Model, and was described 
in detail in the proposed rule. This analytic methodology was applied 
to make the proposed findings.


    After carefully considering the various analytic methodologies and 
relevant information generated during the public comment period, we 
conclude that the questions regarding standards and assumptions, new 
information, and analytic methodologies preclude us from finding that 
under the requirements set out in 50 CFR 18.27, incidental take 
resulting from government activities related to the authorization, 
regulation, or funding of watercraft and watercraft access facilities 
within certain regions of Florida will have a negligible impact on any 
of the four stocks of Florida manatee. Therefore, pursuant to 50 CFR 
18.27(d)(4), we are withdrawing our November 2002 MMPA proposed rule to 
authorize the incidental take of Florida manatees and are publishing 
this notice as our findings.

Relationship Between MMPA Incidental Take Authorization and ESA Section 
7 Consultation

    We wish to clarify the relationship between an MMPA incidental take 
rulemaking and review of proposed watercraft access projects under 
section 7 of the ESA. The manatee is listed as an endangered species 
under the ESA and is also a marine mammal. As such, both the MMPA and 
the ESA prohibit the incidental take of Florida manatees in the course 
of conducting otherwise lawful activities, unless authorized. Through 
section 7 of the ESA, the Service can authorize the incidental take of 
listed species when take is reasonably certain to occur as a result of 
Federal actions as long as specific ESA requirements are met. However, 
if the listed species is also a marine mammal, incidental take 
authorization under the MMPA must be in place before incidental take 
under the ESA can be authorized. This rulemaking process analyzed 
whether incidental take could be authorized for any of the four stocks 
under the MMPA, which would have allowed the Service to authorize 
incidental take for these stocks under section 7 of the ESA.

Actions To Be Taken

    The following describes additional efforts to improve manatee 
    (1) We will continue to manage our consultation program to ensure 
that our responsibilities under section 7 of the ESA are fulfilled in 
accordance with our regulations and policies, and that these 
responsibilities are executed efficiently without imposing undue delays 
or burdens on the regulated public.
    Over the past 2 years, we have made several alterations to our ESA 
section 7 procedures related to Corps of Engineers' authorization of 
new watercraft access facilities. Many members of the public apparently 
believed that these changes were precipitated by the MMPA incidental 
take proposed rule, which is not the case. Rather, these changes 
occurred during the same time period as development and publication of 
the proposed rule. Similarly, in accordance with the settlement 
agreement in Save the Manatee Club, et al. v. Ballard, et al., the 
Service's Interim Strategy for review of watercraft access permits 
(i.e., docks, boat ramps, and marinas) remained in effect through 
publication of the final MMPA incidental take determination.
    With the publication of this final decision regarding MMPA 
incidental take regulations for manatee, the Service's Interim Strategy 
for review of watercraft access permits is no longer in effect. 
Therefore, the Service will conduct manatee consultations in accordance 
with section 7 of the ESA and its implementing regulations and 
    Because no MMPA incidental take regulations have been promulgated 
the Service is precluded from authorizing incidental take of manatees 
in the ESA consultation process for any project that would be 
reasonably certain to result in take of manatees. In making its 
determinations, the Service will give consideration to State and/or 
local manatee protection measures, State-approved manatee protection 
plans and similar measures, and will use the best available scientific 
and commercial information, including information on law enforcement 
efforts and the adequacy of manatee speed zones and their signage.
    (2) We have proposed additional protection measures in Duval, St. 
Johns, Clay, Volusia, and Lee counties (68 FR 16601, April 4, 2003).
    (3) We will coordinate with the Florida Fish and Wildlife 
Conservation Commission to review and comment on county Manatee 
Protection Plans and will give consideration to approved plans and 
protection measures in our section 7 consultations.
    (4) We will establish the Working Group on Watercraft-related 

[[Page 24704]]

Take as a subcommittee of the Florida Manatee Recovery Team.
    (5) We have initiated a status review of the Florida manatee 
pursuant to section 4(c)(2) of the ESA.
    (6) We will be revising the Florida manatee stock assessment to 
reflect our determination that the four regional populations of Florida 
manatees are separate stocks, as defined by the MMPA. The stock 
assessment will build from and complement the status review to include 
a summary of the most recent data that provides the biological basis 
for separating the population into four stocks.

References Cited

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


    The primary author of this document is Pete Benjamin (see ADDRESSES 

    Dated: May 3, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-11480 Filed 5-7-03; 8:45 am]