[Federal Register: April 16, 2002 (Volume 67, Number 73)]
[Proposed Rules]               
[Page 18572-18576]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH80

Endangered and Threatened Wildlife and Plants; Amendment to 
Manatee Protection Areas in Florida

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the Fish and Wildlife Service (Service), propose to amend 
our existing regulations for establishing and administering manatee 
protection areas. We propose to except specific activities that will 
not result in take of manatees from the regulations within the Barge 
Canal manatee protection area in Brevard County, Florida. We also 
propose to establish a mechanism by which persons wishing to engage in 
specific activities within the Barge Canal manatee protection area may 
request and, as appropriate, receive a determination from us that the 
proposed activity will not result in take of manatees and is, 
therefore, excepted from the restrictions imposed by the designation.

DATES: We will consider comments on the proposed rule that are received 
by June 17, 2002. We must receive requests for public hearings by May 
31, 2002.

ADDRESSES: If you wish to comment, you may submit written comments and 
information to the Field Supervisor, Jacksonville Field Office, U.S. 
Fish and Wildlife Service, 6620 Southpoint Drive, South, Suite 310, 
Jacksonville, Florida 32216. Also, you may fax your comments to 904/
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours from 8:00 a.m. to 4:30 p.m., at the above address.

FOR FURTHER INFORMATION CONTACT: David Hankla, Peter Benjamin, or 
Cameron Shaw (see ADDRESSES section), telephone 904/232-2580.

SUPPLEMENTARY INFORMATION: The authority to establish protection areas 
for the Florida manatee is provided by the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.) (ESA), and the Marine Mammal 
Protection Act of 1972, as amended (16 U.S.C. 1361-1407) (MMPA), and is 
implemented in 50 CFR, part 17, subpart J. We may, by regulation, 
establish manatee protection areas whenever substantial evidence shows 
that such establishment is necessary to prevent the taking of one or 
more 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 (16 U.S.C. 1532 (18)). Harm means an act that actually 
kills or injures wildlife (50 CFR 17.3). Such an act may include 
significant habitat modification or degradation that actually kills or 
injures wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering. Under the ESA, 
harass means an intentional or negligent act or omission that creates 
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).
    Section 104 of the MMPA sets a general moratorium, with certain 
exceptions, on the taking 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 at section 3(18) of 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 (16 U.S.C. 1362).
    We may establish two types of manatee protection areas--manatee 
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR 
17.102, is an area in which we have determined that certain waterborne 
activities would result in the taking of one or more manatees, or that 
certain waterborne activities must be restricted to prevent the taking 
of one or more manatees, including but not limited to a taking by 
harassment. A manatee sanctuary is an area in which we have determined 
that any waterborne activity would result in the taking of one or more 
manatees, including but not limited to a taking by harassment. A 
waterborne activity is defined as including, but not limited to, 
swimming, diving (including skin and SCUBA diving), snorkeling, water 
skiing, surfing, fishing, the use of water vehicles and dredging and 
filling activities.
    We have used manatee protection areas to limit human disturbance 
around important warm water manatee aggregation sites and to limit 
vessel speeds in waterways where it has been shown that manatee/vessel 
collisions have resulted in the injury and death of manatees. We have 
established seven manatee sanctuaries in the Crystal River area of 
Citrus County, Florida, (50 CFR 17.108), and on Aug. 10, 2001, we 
proposed establishing 16 additional manatee protection areas throughout 
peninsular Florida (66 FR 42318). On

[[Page 18573]]

January 7, 2002, we published in the Federal Register final 
designations for two of those 16 sites--the Barge Canal and Sykes Creek 
in Brevard County (67 FR 680).
    In response to our proposed rule to establish 16 additional manatee 
protection areas, we received comments indicating that certain existing 
uses of waters proposed for designation would be eliminated or severely 
restricted, and that the loss of these uses would result in substantial 
hardship to the affected parties. In regard to the two sites for which 
we made final designations, on January 7, 2002, we received a request 
for an exemption to our regulations for the Barge Canal. After 
reviewing the party's request, we believe that conducting certain 
otherwise prohibited activities within the Barge Canal in a manner that 
would not result in take of manatees may be possible. This would be the 
case if the party could ensure that no manatees were present in the 
vicinity when the subject activity was to occur.
    We have no desire to unnecessarily restrict or prohibit activities 
that will not cause incidental take of manatees. Therefore, we are 
proposing to amend our regulations at 50 CFR part 17 to establish a 
process for evaluating specific requests to conduct otherwise 
prohibited activities within the Barge Canal manatee protection area. 
We are proposing to establish this process for the Barge Canal, and 
only the Barge Canal, at this time, because it is the sole designated 
manatee protection area to date for which we have received a request 
for authorization of an otherwise prohibited activity. This proposed 
rule amendment would establish a process that will allow the public to 
apply for authorization to conduct otherwise prohibited activities 
within the Barge Canal, and to allow us to provide such authorization 
upon finding that the activities will not result in take of manatees. 
Additionally, we intend to establish this process for a limited area 
initially, so that we may assess the efficacy of the process in a 
controlled fashion, both in terms of ensuring effective manatee 
protection and in terms of our ability to effectively administer such a 
process, before we consider making it more widely available.
    Under our proposed amendment, persons wishing to engage in 
otherwise prohibited activities within the Barge Canal would submit a 
written request to us. The request would contain a description of the 
proposed activity including the timing and duration of the activity, 
and specific measures to be undertaken by the requester in association 
with the proposed activity to ensure that take of manatees will not 
occur. Upon receiving a complete request, we will publish a notice in 
the Federal Register advising the public that a request has been 
submitted. Within 120 days of receiving a complete request, we will 
grant or deny the authorization and include any terms and conditions 
appropriate to ensure that no take of manatees will occur. In making 
these determinations, we will rely on information contained in the 
written request, other information supplied by the requester, and the 
best available scientific information related to the effects of the 
proposed activity on manatees and means for eliminating any such 
effects. Upon approving or denying a request, we will publish 
notification of our decision in the Federal Register, and will send 
copies of any approvals to appropriate local, State and federal law 
enforcement and regulatory agencies.
    As stated above, we would approve exceptions to the manatee 
protection area restrictions in the Barge Canal under this proposed 
process only upon finding that the activity would not cause take of 
manatees. Given the broad definitions of ``take'' in both the ESA and 
MMPA, we believe that the surest means of eliminating the potential for 
take is to ensure that no manatees are present when the subject 
waterborne activity is taking place. Ensuring the absence of manatees 
will require implementation of an effective manatee monitoring program 
to cover the manatee watch area.
    Water conditions in the Barge Canal are generally murky, and 
because the Barge Canal serves primarily as a travel corridor for 
manatees, they are typically submerged for extended periods. Therefore, 
reliably detecting the presence of manatees from a boat or from shore 
at ground level is exceedingly difficult. Under such conditions, 
monitoring of manatees (i.e., manatee watch) must be conducted from an 
elevated platform that provides a viewing angle as nearly perpendicular 
to the water surface as possible in order to be effective. Platforms 
that provide a more oblique viewing angle, such as shore-based or 
watercraft-based observation stations, are considerably less effective. 
Effective viewing platforms are generally airborne platforms such as 
helicopters or small planes, with helicopters being the preferred 
option. Surface-based observation points (shore or watercraft-based 
observers) may be used to supplement aerial observers. Tethered 
airships equipped with video cameras have been used by researchers as 
an effective method to observe manatee behavior, and are another 
alternative aerial platform. Tethered airships may provide the only 
viable aerial platform for sites located in or near restricted 
    Because manatees are frequently submerged while traveling and water 
conditions may make it impossible to observe manatees that are not at 
the surface, the area of the manatee watch (watch area) must extend 
well beyond the limits of the waterborne activity in order to ensure 
that any manatees approaching the area are observed. We generally 
recommend that the watch area extend at least 0.5 miles beyond the 
limits of the waterborne activity. Observers must have the ability to 
effectively communicate with those conducting the activity in order to 
ensure that any high-speed vessel operation ceases immediately when a 
manatee enters the watch area. Finally, the manatee watch must be 
initiated at least 30 minutes prior to the start of the activity to 
ensure that any manatees present in the watch area are observed.
    In confined waters with limited access, such as the Barge Canal, 
employing technologies such as acoustic arrays or sonar devices to 
detect manatees as they enter and leave the watch area may be possible; 
thereby effectively gating the area of the waterborne activity. Such 
devices are currently employed for manatee detection at navigation 
    The use of aerial manatee watches and certain technologies, as 
discussed above, are examples of types of measures that may be 
effective in determining that manatees are not present, and that 
otherwise prohibited waterborne activities may therefore occur in the 
Barge Canal without the potential for causing take of manatees. Other 
methods may be available; however, any method proposed must be able to 
meet the basic test of ensuring that the proposed waterborne activity 
will not cause the take of manatees.

Public Comments Solicited

    We are soliciting comments or suggestions from the public, other 
concerned governmental agencies, the scientific community, industry, or 
any other interested party concerning this proposed rule. We 
particularly seek comments concerning:
    1. The reasons why the proposed rule amendment should or should not 
be adopted;
    2. Current or planned activities within designated or proposed 
manatee protection areas and their possible effects on manatees;

[[Page 18574]]

    3. Any foreseeable economic or other impacts resulting from the 
proposed rule amendment;
    4. Potential adverse effects to the manatee associated with the 
proposed rule amendment;
    5. Any actions that could be considered in lieu of, or in 
conjunction with, the proposed amendment that would provide comparable 
or improved manatee protection;
    6. Potential means of conducting waterborne activities in the Barge 
Canal in such a way as to ensure that take of manatees will not occur; 
    7. The appropriateness of the public notification process.
    Our practice is to make all comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
also from the rulemaking record a respondent's identity, as allowable 
by law. If you wish for us to withhold your name and/or address, you 
must state this prominently at the beginning of your comments. However, 
we will not consider anonymous comments. We will make all submissions 
from organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    The ESA provides for one or more public hearings on this proposal, 
if requested. Requests must be filed within 45 days of the date of this 
proposal. Requests for hearings must be made in writing and should be 
addressed to the Field Supervisor, Jacksonville Field Office (see 
ADDRESSES section). We will publish a separate notice in the Federal 
Register providing information about the time and location for any 
hearings. Written comments submitted during the comment period receive 
equal consideration with those comments presented at a public hearing.

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 proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
unnecessary technical language or jargon that interferes with the 
clarity? (3) Does the format of the proposed rule (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Is the description of the proposed rule in the 
``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? (5) What else could we do to make the 
proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this 
proposed rule is not a significant regulatory action. The Office of 
Management and Budget makes the final determination under Executive 
Order 12866.
    a. This proposed 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 proposed rule amendment. The 
purpose of this proposed rule is to establish a process that will allow 
the public to apply for authorization to conduct otherwise prohibited 
activities within the Barge Canal, and to allow us to provide such 
authorization upon finding that the activities will not result in take 
of manatees.
    b. This proposed rule is consistent with the approach used by the 
State of Florida to protect manatees, although more protective measures 
may be deemed necessary. 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. Therefore, we are eager 
to work with State and local agencies to develop and implement measures 
to protect manatees. We welcome their comments and participation to 
increase the likelihood of consistency of our final action with 
possible future action by the State or local agencies.
    c. This proposed rule will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. No entitlements, grants, user fees, loan programs or 
the rights and obligations of their recipients are expected to occur.
    d. This proposed rule will not raise novel legal or policy issues.

Regulatory Flexibility Act

    I certify that this proposed 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.
    On August 10, 2001, we proposed in the Federal Register creation of 
16 manatee protection areas in Florida (66 FR 42318), and on January 7, 
2002, we published in the Federal Register final designations for two 
of those sites--the Barge Canal and Sykes Creek in Brevard County (67 
FR 680). In conjunction with the August 10 rulemaking proposal, we 
conducted a public hearing in Melbourne, FL, and a 60-day public notice 
and comment period to determine the activities occurring in Barge Canal 
and Sykes Creek, among other sites, that might be affected by the 
creation of manatee protection areas. In our final rule of January 7, 
2002, we published information we had compiled on the general economic 
characteristics and employment statistics for Brevard County and 
concluded that the designation of both sites as manatee refuges would 
``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.).'' (67 FR 691) The current proposed rule would 
create a mechanism whereby entities that receive a letter of 
authorization would be excepted from the regulations governing the 
Barge Canal manatee protection area. Based on the foregoing, we believe 
that this rule will not have a significant economic impact on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2). This 
proposed rule:
    a. Does not have an annual effect on the economy of $100 million or 
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. It is unlikely that

[[Page 18575]]

unforeseen changes in costs or prices for consumers will stem from this 
proposed rule.
    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.

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.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.


    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. The purpose of this rule is to establish a mechanism by 
which persons wishing to engage in specific activities within the Barge 
Canal manatee protection area may request and, as appropriate, receive 
a determination from us that the proposed activity will not result in 
take of manatees and is, therefore, excepted from the restrictions 
imposed by the designation.


    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This rule will not have substantial direct effects on the 
State of Florida, in the relationship between the Federal Government 
and the State, or on the distribution of power and responsibilities 
among the various levels of government.

Civil Justice Reform

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

Paperwork Reduction Act

    This regulation does not contain collections of information that 
require approval by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. Because this proposed rule affects a limited area (the 
Barge Canal), and due to the fact that only one entity has requested an 
exception to the restrictions imposed per our designation of the Barge 
Canal as a manatee protection area, we anticipate that fewer than 10 
local governments, individuals, businesses, or organizations, will seek 
exceptions under this rule.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act (NEPA). We have determined that this 
rule is categorically excluded under NEPA because it relates to 
policies, directives, regulations and guidelines of an administrative, 
financial, legal, technical or procedural nature; or the environmental 
effects of which are too broad, speculative or conjectural to lend 
themselves to meaningful analysis and will later be subject to the NEPA 
process, either collectively or case-by-case (516 DM 2, Appendix 1.10).

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), E.O. 13175, and 512 DM 2, 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 proposed 
rule amendment is not a significant regulatory action under Executive 
Order 12866, and because it establishes a process for excepting from 
regulation otherwise prohibited activities within the Barge Canal, it 
is not expected to significantly affect energy supplies, distribution, 
and use. Therefore, this action is not a significant energy action and 
no Statement of Energy Effects is required.


    The primary author of this document is Peter Benjamin (see 
ADDRESSES section).


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

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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


    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 by revising paragraph (c)(1)(ii) and adding 
paragraph (c)(1)(iii) to read as follows:
* * * * *
    (ii) Watercraft must proceed at slow speed (channel included) all 
year unless the Director has granted authorization to conduct an 
otherwise prohibited activity under paragraph (c)(1)(iii) of this 
    (iii) Any waterborne activity otherwise prohibited by this subpart 
may be authorized within the Barge Canal manatee protection area if the 
Director finds that such activity will not cause the take of manatees.
    (A) Persons who want to conduct otherwise prohibited activities in 
the Barge Canal manatee protection area must submit a request for 
authorization to the Director. Requests for authorization must include 
a description of the proposed activity, including the timing and 
duration of the activity, specific measures that will be undertaken in 
association with the proposed activity to ensure that take of manatees 
does not occur, and any other information that the Director may deem 
relevant to the evaluation of the request.
    (B) Upon receipt of a complete request for authorization, the 
Director will publish notification of receipt of the request in the 
Federal Register. To the maximum extent practicable, the Director will 
make a determination of approval or denial within 120 days. If the 
Director decides to issue to a letter of authorization, it will include 
terms and conditions specific to the activity. Examples of such terms 
and conditions include, but are not limited to, maximum allowable 
vessel speed, time and duration of operation, manatee watch protocols, 
use of specialized equipment, and monitoring and reporting 
requirements. Letters of

[[Page 18576]]

authorization will specify the period of validity, but will not exceed 
60 months. Upon approving or denying a request, the Director will 
publish notification of the decision in the Federal Register.
    (C) The person conducting the authorized activity must be in 
possession of a letter of authorization. Violation of any of the terms 
and conditions of the authorization may result in suspension or 
withdrawal and appropriate penalties provided in the Marine Mammal 
Protection Act (16 U.S.C. 1375) or Endangered Species Act (16 U.S.C. 
1531). The Director may revoke a letter of authorization upon 
determining that the activity is likely to cause a taking of manatees 
or impede the recovery of the species or if the person who has been 
issued the letter of authorization is convicted of a violation of State 
or Federal conservation laws. All other Federal, State, and local 
requirements continue to apply.
    (D) The Director will notify Federal and State conservation 
agencies and other appropriate law enforcement officials of any letters 
of authorization granted under paragraph (c)(1)(iii) of this section.
* * * * *

    Dated: April 2, 2002.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-9224 Filed 4-15-02; 8:45 am]