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North Florida Field Office

Record of Decision Withdrawing the
Proposed Marine Mammal Protection Act
Incidental Take Regulations
Frequently Asked Questions

Q1: What is the Marine Mammal Protection Act?

A1: The Marine Mammal Protection Act (MMPA) of 1972, as amended, (16 U.S.C. 1361-1407) was enacted to provide Federal protection of all marine mammals and specifically contains a moratorium on the taking and importation of marine mammals with certain exceptions.

Q2: What is "take"?

A2: "Take," as defined by the Marine Mammal Protection Act section 3(13), means "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." Our implementing regulations (50 CFR 18.3) further clarify "take" as to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal, including, without limitation, any of the following: The collection of dead animals or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; or the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in the disturbing or molesting of a 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. You can find other relevant definitions at 50 CFR 18.27(c).

Q3: What is your legal authority to address incidental take?

A3: Our legal authority stems from the Marine Mammal Protection Act of 1972, as amended, (16 U.S.C. 1361-1407) as implemented under Title 50 of the Code of Federal Regulations, part 18, subpart 27, as well as the Endangered Species Act of 1973, as amended.

Q4: Explain the relationship between the Marine Mammal Protection Act and the Endangered Species Act as it relates to the Florida manatee?

A4: The Florida manatee is listed as an endangered species under the ESA and is a marine mammal. As such, both the MMPA and ESA prohibit the incidental take of Florida manatees in the course of otherwise lawful activities, unless authorized. These prohibitions have been in place since 1972 for the MMPA and 1973 for the ESA. Through section 7 of the ESA, the Service can authorize the incidental take of threatened and endangered species that are reasonably certain to occur as a result of Federal actions as long as the specific ESA requirements are met. However, if the listed species is a marine mammal, incidental take regulations under the MMPA must be in place before incidental take under the ESA can be authorized. The need for this action results from the fact that there currently is no authorization for the incidental, unintentional death, injury, or harassment of Florida manatees associated with watercraft access and use in Florida waters. Thus, there is a need to examine the issue of take of Florida manatees and determine where the incidental, unintentional take of manatees may be authorized. Under the provisions of the MMPA, the Fish and Wildlife Service may authorize the incidental taking of small numbers of marine mammals in a specified geographic area if the Service finds, based on the best scientific evidence available, that the total taking for the authorized period will have no more than a negligible impact on the species or stock. If this finding is made, specific regulations will 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.

Q5: Why are you withdrawing your proposed MMPA Incidental Take Regulations?

A5: We are withdrawing the MMPA rule because new, scientific information challenges the preliminary findings that supported the proposed rule. This new information calls into question the assumptions we made in our proposed rule, and the Service is unable to conclude that incidental take would have a negligible impact on any of the four stocks of Florida manatees. Therefore, the Service must make a negative finding, withdraw the proposed rule, and select the No Action alternative in the Final Environmental Impact Statement. We are committed to evaluating the standards and assumptions, new information, and methodologies so that any future proposal is consistent with the law and best available science.

Q6: Is this a negative finding?

A6: Yes, as defined under the MMPA and our regulations, if the Service cannot make a finding that the total taking will have a negligible impact, for any reason, we must publish a decision and call it a "negative" finding. In this case, the Service determined that new information and questions about our standards and assumptions prevent us from making a negligible impact finding. Hence, we must publish a negative finding.

Q7: Does this mean the U. S. Fish and Wildlife Service will not authorize water-access activity and facility permits, thus implement a moratorium on all such permits?

A7: There is no moratorium on docks, boat launches, and marinas in the State of Florida. The Service will continue to work with the Corps of Engineers and others to ensure that permit applications for watercraft-access activities and facilities are processed in a timely manner consistent with the law.

In the absence of MMPA Incidental Take Regulations, the Service, under its ESA Section 7 consultation process, will continue to review watercraft access projects, such as docks, boat ramps, and marinas, in accordance with the law and implementing regulations.

It is important to note that the Service must continue to give great scrutiny to all projects which "may affect" manatees. Because there are no MMPA take regulations in place, there continues to be a "no take" standard for manatees. That is, 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 as well as any other scientific or commercially available information including law enforcement efforts and adequacy of manatee zones and their signage.

Proposals for projects that the Service determines are not reasonably certain to incidentally take manatees would receive a letter of concurrence from the Service. Note, we use the term "likely." Projects often vary significantly from location to location as do mitigating measures. The Service may review other factors associated with a given project, and while there might not be a problem related to manatees, there could be other impacts which might result in the Service’s recommending denial of the permit request.

Projects where take of manatees is reasonably certain to occur cannot receive a concurrence letter because we cannot authorize incidental take of manatees.

Q8: What impact will this have on current and future permit applications?

A8: Since every application is considered on a case-by-case basis, it would be speculative to try and estimate how many or what types of projects might receive concurrences or non-concurrences.

However, recent experience indicates that a majority of permits for new access facilities have been determined to be not reasonably certain to result in the take of manatees.

Service staffs are continuing to expedite these reviews in consultation with action agencies and returning decisions to the permit issuing agencies. Due to the back log created by the increased number of applications being reviewed, our staffs initially concentrated most of their effort on those applications where we were reasonably certain take of Florida manatees would not occur. The larger projects requiring more detailed analysis or located in areas of concern are being processed, but will take longer to complete. Exactly how many of those will be concur or non-concur is not known.

Q9: How does this decision affect the Director’s Consultation Procedures Memorandum dated January 22, 2003?

A9: The Director's Consultation Procedures Memorandum is now rescinded. The Service will continue to follow the section 7 regulations and policies, and must ensure any project that may affect manatees and could result in take are thoroughly reviewed, while at the same time ensuring projects where take is not reasonably certain to occur are not unnecessarily delayed. New guidance will be forthcoming.

Q10: How does this decision affect the Service’s Final Interim Strategy for evaluating future watercraft access projects in Florida that may affect the endangered Florida manatee?

A10: With the publication of this final decision and in accordance with the settlement of Save the Manatee Club et. al v. Ballard, the Service’s Interim Strategy for review of watercraft access permits (i.e., docks, boat ramps, and marinas) is no longer in effect. The Service will conduct its consultations in accordance with section 7 of the ESA and its implementing regulations and policies to ensure take of Florida manatees does not occur. The "no take" standard remains in effect.

Q11: Does this mean the Areas of Inadequate Protection have been eliminated?

A11: The term Areas of Inadequate Protection will most likely not change. There remains areas where we think additional protection measures are needed to prevent take occurring as a result of water-access facilities.

The Service must continue to give thorough scrutiny to all projects which may affect manatees. Because there are no MMPA take regulations in place, there continues to be a "no take" standard for manatees. That is, 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 the presence or absence of State and local manatee protection measures, as well as any other scientific or commercially available information. The Service will also work with the Corps of Engineers to review any "keys" or other local procedures to ensure the no take standard in the consultation process is achieved.

Q12: Will you proceed with a new MMPA rule in the future?

A12: The Service plans to evaluate the information and analyses, conduct appropriate peer review, and issue a new proposed rule in the future, if and when we are able to make an appropriate proposed finding.

Q13: Several Stakeholders encouraged you to make a decision based on sound science. What does this No Action decision mean in relation to these comments?

A13: As a standard policy, the Service makes its decision on the best science and information available at that time. In this case, after thoroughly reviewing the information received throughout the proposed rulemaking process, the Service recognized that the questions which were raised about the standards and assumptions, analytic methods, and new information created significant scientific challenges to the information base, standards, and methods used to develop the proposed rule. These very important challenges to the scientific underpinning of the proposed rule question the Service’s ability to a negligible finding for any of the four Florida manatee stocks at this time.

Incorporating a process to receive and consider new information that challenges preconceived ideas into decision making is a hallmark of scientifically sound management. The Service’s decision to stop this rulemaking process so that we can reevaluate the assumptions, information, and analytic methods used for decision making, demonstrates a commitment to incorporating sound science and the scientific method into conservation management.

Q14: Are you taking any action to address those concerns?

A14: The Service continues to work in partnership with numerous Federal and State agencies and researchers to obtain valid, up-to-date information and data for use in making its future manatee conservation and recovery decisions.

Most recently, Interior Secretary Gale Norton and Florida Governor Jeb Bush announced the commitment of more than one-half million dollars in new funding dedicated to enhancing manatee research efforts. The new funding will go to a variety of research institutions with expertise in marine mammals and that support critical manatee research activities.

Q15: Save the Manatee Club said they would agree with an extension of time for developing these regulations. Why did you not seek an extension of time for the rulemaking process?

A15: The Service’s proposed rule authorized take for three of four sub populations of Florida manatees. However, based on the information received during the rulemaking process, as well as the best scientific data available, the Service could not support this proposed rule because of scientific uncertainty. Therefore, the selection of the No Action Alternative and withdrawing the proposed rule is the most prudent decision. The Service would like to refine and peer review the population modeling methodologies and reevaluate our process. The Service is committed to continuing efforts to evaluate the new information, and to work with all stakeholders to develop manatee management strategies that are scientifically sound and effective for both manatees and the people of Florida.

Q16: What is the next step in the rulemaking process?

A16: This action concludes the rulemaking process. Service managers and biologists are continuing their efforts to fill in data and analysis gaps in order to produce a biologically and legally defensible proposal in the future and to improve our manatee protection efforts in general. The following reiterates the efforts identified in the Record of Decision and describes additional efforts we intend to initiate to improve manatee protection and facilitate future rule-making --

  1. We will continue to refine our permit evaluation process to ensure that our obligations 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.
  2. We have proposed additional protection measures in Duval, St. Johns, Clay, Volusia, and Lee counties (68 FR 16601-16641).
  3. We will coordinate with the Florida Fish and Wildlife Conservation Commission to review and comment on county Manatee Protection Plans, and will give strong consideration to approved plans in our section 7 consultations.
  4. We will establish the Working Group on Watercraft Incidental Take (WGWIT) as a sub-committee 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 for inclusion in the next Marine Mammal Commission Annual Report to Congress to reflect our determination that the four regional populations of Florida manatees should be considered as separate stocks, as defined by the MMPA. The stock assessment will build off of and complement the status review to include a summary the most recent data that provides the biological basis for separating the population into four stocks.

Q17: Was the public given an opportunity to participate in this process?

A17: Yes. We considered comments on both the proposed rule and the draft environmental impact statement. We also held six Florida public hearings as follows: on December 2, 2002 in Ft. Myers; on December 3, 2002 in Tampa; on December 4, 2002 in Melbourne; on December 5, 2002 in Daytona Beach; on December 9, 2002 in Palatka; on December 10 in Gainesville; and on December 12 in Fort Lauderdale. Over 3,000 people attended the hearings and over 8,000 comments were received during the extended public comment period.

Q18: Did the Service consider economic and quality of life impacts on citizens when making this MMPA decision?

A18: The Service is required to use the best scientific and commercial data available when making decisions under the MMPA. However, as part of the rulemaking process, the Service completed an Environmental Impact Statement (EIS), which requires an analysis of the socioeconomic factors. Details on the economic factors considered in making this decision are available in the Final EIS, which was published on April 4, 2003.

Q19: How did the Save the Manatee Club et. al. v Ballard settlement impact this process?

A19: In the original settlement agreement of January 2001, the Service agreed to a time frame for announcing our Incidental Take Regulation development process, preparing the proposed rule and finalizing our decision. Publication of this decision is the final task outlined in the settlement agreement.

Since that time, we have agreed to additional actions in the March 18, 2003 Stipulated Order. Visit our website at http://www.fws.gov/northflorida for more information about the Stipulated Order.

Q20: What is the final status of litigation between the Save the Manatee Club and the state of Florida?

A20: Please contact the Florida Fish and Wildlife Conservation Commission for information related to the State lawsuit and settlement.

Q21: How can I stay up to date with this issue?

A21: We continually update our website with current information relative to our conservation and recovery programs and actions. Our website is located at http://www.fws.gov/northflorida. You may also request to be added to our mailing list by writing to: Manatee Mailing List, U.S. Fish and Wildlife Service, Jacksonville Field Office, 6620 Southpoint Dr., South, Suite 310, Jacksonville, FL 32216 or via e-mail to manatee@fws.gov.

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Last modified May 5, 2003