[Federal Register: January 7, 2002 (Volume 67, Number 4)]
[Rules and Regulations]               
[Page 680-696]
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; Manatee Protection 
Areas in Florida

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the Fish and Wildlife Service (Service), take final action 
to establish two additional manatee protection areas in Florida. This 
action is authorized under 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), to 
further recovery of the Florida manatee (Trichechus manatus 
latirostris) through a reduction in the level of take. In evaluating 
the need for additional manatee protection areas, we considered the 
needs of the manatee at an ecosystem level with the goal of ensuring 
that adequate protected areas are available throughout peninsular 
Florida to satisfy the biological requirements of the species, with a 
view toward the manatee's recovery. We are establishing two manatee 
refuges in Brevard County, in which certain waterborne activities will 
be restricted. These two sites are located within the water bodies 
commonly known as the Barge Canal and Sykes Creek. Watercraft operating 
within these water bodies will be required to proceed at ``slow speed'' 
throughout the year.

DATES: These designations will become effective upon the posting of 
appropriate signage designating the boundaries of the manatee 
protection areas and restrictions on watercraft operating within those 
boundaries. Such posting will not occur sooner than February 6, 2002.

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

FOR FURTHER INFORMATION CONTACT: David Hankla, Peter Benjamin, or 
Cameron Shaw (see ADDRESSES section), telephone 904/232-2580; or visit 
our website at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://northflorida.fws.gov.



    The Florida manatee is Federally listed as an endangered species 
under the ESA (16 U.S.C. 1531 et seq.) (32 FR 4001) and is also 
federally protected under the MMPA (16 U.S.C. 1361-1407). It resides in 
freshwater, brackish, and marine habitats of coastal and inland 
waterways in the southeastern United States. The majority of this 
population resides in the waters of the State of Florida throughout the 
year, and nearly all manatees use the waters of peninsular Florida 
during the winter months. The manatee is a cold-intolerant species and 
requires warm waters (above 20 degrees Celsius (68 degrees Fahrenheit)) 
to survive during periods of cold weather. During the winter months 
many manatees rely on the warm water from natural springs and 
industrial outfalls for warmth. During the summer 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 is no indication 
that important threats to the species, including human-related 
mortality and harassment, have been effectively reduced or eliminated.
    Human activities, particularly waterborne activities, are resulting 
in the take of manatees. Take, as defined by the ESA, means to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to 
attempt to engage in any such conduct. Harm means an act which actually 
kills or injures wildlife (50 CFR 17.3). Such an act may include 
significant habitat modification or degradation where it actually kills 
or injures wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering. Harass means an 
intentional or negligent act or omission which 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).
    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 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 recent 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

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human population growth and visitation is the increase in the number of 
watercraft which ply Florida waters. In 1999, 829,971 vessels were 
registered in the State of Florida. This is an increase in registered 
vessels of almost 20 percent since 1993 (Florida Fish and Wildlife 
Conservation Commission 2000). During this same period, the number of 
watercraft-related manatee mortalities has increased by 144 percent, 
from 35 to 82 deaths per year. 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 waters inhabited by manatees has 
had direct and indirect impacts on this endangered species. Direct 
impacts include injuries and death from vessel impacts, deaths and 
injuries from water control structure operations, lethal and sub-lethal 
entanglements with commercial and recreational fishing gear, and 
alterations of behavior due to harassment. Indirect impacts include 
habitat destruction and alteration, decreases in water quality 
throughout some aquatic habitats, decreases in quantity of warm water 
at natural sites, marine debris, and general disturbance from human 
    Over the past 10 years, more than 62 percent of watercraft-related 
manatee mortality has taken place in seven Florida counties (Duval, 
Volusia, and Brevard, on the east coast; and Collier, Lee, Charlotte, 
and Hillsborough on the west coast) (U.S. Fish and Wildlife Service 
2001). Manatee mortality has continued to climb steadily. Average 
annual mortality in the 1990s (227.9) was nearly twice that of the 
1980s (118.2), and this trend continued in 2000, when 273 dead manatees 
were recorded. Total mortalities over the past 4 years have averaged 45 
percent higher than in the early 1990s. When the record high total of 
1996 is added (the year in which the red tide die-off inflated total 
mortality to 416 animals), average annual mortality over the past 5 
years has been nearly 60 percent greater than in the early 1990s 
(Marine Mammal Commission 2001).
    The continuing increase in the number of recovered dead manatees 
throughout Florida has been interpreted as evidence of increasing 
mortality rates (Ackerman et al. 1995). Between 1976 and 1999, the 
number of carcasses collected in Florida increased at a rate of 5.8 
percent per year, and deaths caused by watercraft strikes increased by 
7.2 percent per year (U.S. Fish and Wildlife Service 2001). Because the 
manatee has a low reproductive rate, a decrease in adult survivorship 
due to watercraft collisions could contribute to a long-term population 
decline (O'Shea et al. 1985). It is believed that a 1 percent change in 
adult survival likely results in a corresponding change in the rate of 
population growth or decline (Marmontel et al. 1997).
    Collisions with watercraft are the largest source of human-related 
manatee deaths. Data collected during manatee carcass salvage 
operations in Florida indicate that a total of 979 manatees (from a 
total carcass count of 4,021) are confirmed victims of collisions with 
watercraft since 1976. This number may not accurately represent the 
actual number of watercraft-related mortalities since many of the 
mortalities listed as ``undetermined causes'' show evidence of 
collisions with vessels. Collisions with watercraft comprise 
approximately 24 percent of all manatee mortalities since 1976. The 
last 5 years have been record years for the number of watercraft-
related mortalities, and watercraft-related deaths have become a larger 
proportion of total mortality. Since 1998, watercraft-related deaths 
have represented about 30 percent of all mortality, a 5 percent 
increase compared to the early 1990s. During the 1980s and 1990s the 
manatee population apparently grew; however, if population growth rate 
levels off and manatee mortality continues to increase, a decline in 
abundance is inevitable (Marine Mammal Commission 2001).
    The second largest cause of human-related manatee mortality is 
entrapment in water control structures and navigation locks (U.S. Fish 
and Wildlife Service 2001). Manatees may be crushed in gates and locks 
or may be trapped in openings where flows prevent them from surfacing 
to breathe. Locks and gates were responsible for 159 manatee deaths 
between 1976 and 1999 (U.S. Fish and Wildlife Service 2000). While 
there are no well-defined patterns characterizing these mortalities, it 
is believed that periods of low rainfall increase the likelihood of 
manatees being killed in these structures. These periods require more 
frequent, large-scale movements of water, which require more frequent 
gate openings and closings in areas that attract manatees searching for 
fresh water.
    Manatees are also affected by other human-related activities. 
Impacts resulting from these activities include death caused by 
entrapment in pipes and culverts; entanglement in ropes, lines, and 
nets; ingestion of fishing gear or debris; vandalism; and poaching. 
These activities have accounted for 106 manatee deaths since 1976, an 
average of 4 deaths per year. As with watercraft-related mortalities, 
other human-related deaths also appear to be increasing, with 31 
deaths, approximately 3 percent of the total mortalities, recorded 
between 1997 and 2000 attributed to these sources. This is an average 
of 7.75 deaths per year over the last 4 years attributable to other 
human-related activities.
    Harassment of manatees is a concern, particularly when it impedes 
the use of warm water areas critical to manatee survival during periods 
of cold weather. In particular, an increasing number of swimmers and 
divers are visiting Florida's waters to view and swim with the 
manatees. The presence of large numbers of people and the resultant 
disturbance has been documented to cause manatees to leave warm water 
areas (Jay Gorzaleny, Mote Marine Laboratory, personal communication 
2001). On occasion, divers and swimmers have been observed attempting 
to pet, chase, ride, and even sit on manatees. This type of harassment 
may cause the manatee to leave warmer water to find relief from the 
harassment in colder areas where there are fewer people. Such 
responses, if they are instigated by human harassment, are considered 
take under the ESA and MMPA.
    In response to these problems and the watercraft-related impacts in 
particular, conservation agencies, such as the Service and the Florida 
Fish and Wildlife Conservation Commission (FWC), have increased their 
emphasis on enforcement and compliance with manatee speed zones by 
adding new officers, conducting enforcement task force initiatives, 
increasing overtime, and increasing the proportion of law enforcement 
time devoted to manatee conservation. We are also continuing to 
evaluate development proposals that would increase watercraft traffic 
in manatee habitats where speed zones, signage, and enforcement are 
insufficient. To further address the negative effects of human actions 
on manatees, we are establishing two additional manatee refuges in 
    The 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 may, by regulation, establish manatee protection areas 
whenever there is substantial evidence showing such establishment is 
necessary to prevent the taking of one or more manatees.
    We may establish two types of manatee protection areas--manatee 
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR

[[Page 682]]

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.
    Throughout the development of this rule, many commenters cited the 
increase in the overall size of the manatee population as evidence that 
the establishment of additional manatee protection areas is not needed. 
Recent data regarding the size of the manatee population are very 
encouraging, and indicate that local, State, and Federal efforts to 
recover the manatee are working. However, we remain concerned that 
waterborne activities are resulting in take of manatees, which is not 
allowed under the ESA and MMPA, and which may slow or even impede 
further recovery. Our obligation under the ESA and MMPA is to further 
manatee recovery, so that we may someday achieve our goal of removing 
the species from the List of Endangered and Threatened Wildlife and 
Plants. This includes using available tools, as practicable, to reduce 
the level of human-related manatee mortality. The establishment of 
manatee protection areas is one such tool. We are pursuing other 
complementary tools simultaneously, as described in the next two 

Synopsis of 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 Fish and Wildlife Service and the U.S. Army Corps of 
Engineers (Corps) alleging violations of the Endangered Species Act 
(ESA), Marine Mammal Protection Act (MMPA), National Environmental 
Policy Act (NEPA), and Administrative Procedure Act (APA). 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, we agreed 
to the following:
     Submit a proposed rule for new refuges and sanctuaries to 
the Federal Register by April 2, 2001, and submit a final rule by 
September 28, 2001. Subsequent to the Federal settlement, the FWC also 
voted to settle Save the Manatee v. Egbert, Case No. 90-00-400CIV17-WS 
(N.D.Fla) (the State case). That settlement, which was entered by the 
court on November 7, 2001, calls for very similar protective measures 
in many of the locations included in our proposed rule. As a result of 
these simultaneous processes, the parties in the Federal lawsuit agreed 
to extend the April 2 deadline in an attempt to negotiate a means to 
avoid duplication of effort and better serve the public. Subsequent 
negotiations resulted in additional extensions, which resulted in the 
proposed rule being submitted to the Federal Register on August 3, 
2001. We also agreed to evaluate the propriety of invocation of our 
emergency sanctuary/refuge designation authority. We published an 
advance notice of proposed rule-making in the Federal Register on 
September 1, 2000, and held a series of six public workshops in 
December 2000. We received 1,752 comments in response to the advance 
notice, and 396 people attended the public workshops. The proposed rule 
was published in the Federal Register on August 10, 2001 (66 FR 42318). 
A 60-day comment period followed this publication. In addition, we held 
four public hearings in September 2001, to provide the public an 
opportunity to comment. We held these hearings in Crystal River, 
Clearwater, Venice, and Melbourne, Florida. As a result of both the 
public hearings and written submissions, we received approximately 
3,500 comments. These comments are summarized and responded to in the 
``Summary of Comments and Recommendations'' section of this rule.
     Revise the Manatee Recovery Plan. We were required, by 
December 1, 2000, to make a draft revised Recovery Plan available for 
public review and comment, and to circulate our final revised Recovery 
Plan for signature no later than February 28, 2001. We published a 
draft revised Recovery Plan on November 30, 2000, and received over 500 
comments. The Plaintiffs and Interveners agreed to new dates for 
development of a second draft and finalization of the Recovery Plan. As 
a result of the comments, we made substantial revisions to the Recovery 
Plan and subsequently issued a second draft for public review and 
comment on July 10, 2001. The Recovery Plan was finalized on October 
30, 2001.
     Pursue a rulemaking proceeding to adopt incidental take 
regulations under the MMPA. By March 6, 2001, we were required to 
submit to the Federal Register an advance notice of proposed 
rulemaking; invite by letter the Corps and other entities that conduct 
activities which may influence factors relating to effects of 
watercraft on manatees to participate in the MMPA rulemaking process; 
and promptly provide copies of the Federal Register notice and 
invitation letters to the Plaintiffs and Interveners. The advance 
notice was published in the Federal Register on March 12, 2001, and 
copies of the advance notice and invitation letters were mailed to the 
Plaintiffs and Interveners on March 6, 2001. We will determine if any 
anticipated take by entities participating in the rulemaking process 
meets the requirements set forth in section 101(a)(5) of the MMPA, 16 
U.S.C. 1371(a)(5). The process should result in--(1) if the 
requirements set forth in section 101(a)(5) of the MMPA are deemed 
satisfied, a proposed and final MMPA incidental take regulation; (2) 
preparation of appropriate NEPA documentation which will identify and 
assess the direct, indirect, and cumulative effects of the overall MMPA 
regulation (either an Environmental Assessment (EA) or an Environmental 
Impact Statement (EIS)); (3) detailed assessments of agency programs, 
including cumulative effects on manatees and their habitat, for any 
activities covered under the regulation; and (4) consultation pursuant 
to section 7 of the ESA. We have determined that we will prepare an EIS 
in association with this action. Draft and final products are due on 
November 5, 2002, and May 5, 2003, respectively. If the requirements of 
the MMPA cannot be met, we must notify the Plaintiffs and Interveners 
as soon as practicable, and publish a negative finding in the Federal 
Register with the basis for denying the request. We must publish our 
negative finding by May 5, 2003. We will conduct public hearings on 
draft proposals as appropriate.
     By March 6, 2001, furnish Plaintiffs and Interveners with 
a letter describing how we will spend increased enforcement resources 
in FY 2001. This letter was sent on March 6, 2001.
     Revise, and make available for public review, our 
``interim guidance'' for addressing potential manatee impacts 
associated with development and permitting of new watercraft access 
facilities. We were required to submit this document by March 6, 2001. 
The revised document appeared in the Federal Register on March 14, 2001 
(66 FR 14924-32). We agreed to provide at

[[Page 683]]

least thirty (30) days of public comment and actually provided sixty 
(60) days comment on the revised draft guidance. The final decision on 
the guidance was released to the public on August 13, 2001, and 
published in the Federal Register on August 21, 2001 (66 FR 43885).
     Provide written progress reports on the status of tasks 
agreed upon in the settlement agreement every 6 months. The first 
report was due and was provided to the parties on July 5, 2001.
     Provide copies of concurrence and non-concurrence letters 
to Plaintiffs and Interveners. Whenever we send a letter to the Corps 
in response to the Corps' determination that a project ``may affect'' 
the manatee or ``may affect but is not likely to adversely affect'' the 
manatee, we are required to concurrently make a copy of the 
correspondence available to the Plaintiffs and Interveners. This 
obligation may be satisfied by establishing a web-based system or by 
transmitting a copy of the letter by U.S. mail or electronically. Until 
such time as we establish a web-based system, we will forward copies by 
U.S. mail. These letters have been provided accordingly.
     Provide copies of Biological Opinions (BO). Whenever we 
issue a final BO regarding the effect of a particular project on 
manatees or manatee critical habitat, we are required to concurrently 
make a copy of that opinion available to the Plaintiffs and 
Interveners. This obligation may be satisfied by establishing a web-
based system or by transmitting a copy of the opinion by U.S. mail or 
electronically. Until such time as we establish a web-based system, we 
will forward copies by U.S. mail. These biological opinions have been 
provided accordingly.

Coordination With State Actions

    A network of manatee speed zones and sanctuaries has been 
established throughout peninsular Florida by Federal, State, and local 
governments. This existing structure works toward our goal of providing 
adequate protected areas throughout peninsular Florida to satisfy the 
biological requirements of the species. The purpose of our current 
evaluation is to identify gaps in the existing network and to propose 
appropriate measures for filling those gaps. 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.
    We recognize that the existing system of speed zones and 
sanctuaries has been established primarily by State and local 
governments. We also recognize the important role of our State and 
local partners, and we continue to support and encourage State and 
local measures to improve manatee protection.
    The sites contained in the proposed rule were selected based on the 
criteria described below, prior to the disclosure of terms of the 
proposed settlement in the State case. That settlement contains a list 
of sites that the FWC will be evaluating for potential State 
designation of speed zones and sanctuaries. There is considerable 
overlap in terms of sites identified in that settlement and the sites 
discussed in our proposed rule. The fact that the State's list of sites 
is more expansive than the list in our proposed rule does not indicate 
a determination on our part that sites on the State's list, and not 
proposed by us, do not warrant designation, but is rather a reflection 
of our focusing on sites for which we believe we can provide the most 
effective protection for manatees, given our staffing and funding 
    We have been coordinating closely with the FWC, since the terms of 
their proposed settlement were disclosed, to determine which sites are 
most appropriate for State designation and which are better suited for 
Federal designation. At the time our proposed rule was prepared, final 
agreement had not been reached on the terms of the proposed State 
settlement. Pursuant to the terms of our settlement agreement described 
previously we were required to submit our proposed rule to the Federal 
Register by April 2, 2001, which was prior to the time in which the FWC 
made a final decision regarding sites they intend to evaluate. As 
stated previously, the deadline was extended on several occasions by 
agreement of the parties in an attempt to negotiate a means to avoid 
duplication of effort and better serve the public. Alternatives to the 
proposed rule were rejected by the Plaintiffs, as were requests for 
further extensions; therefore, considerable overlap is possible between 
our proposal and potential State action.
    We strongly believe that the State should have leadership in 
establishing additional manatee protection areas. However, we also must 
meet our settlement obligations. Therefore, we will continue to 
participate in the State's evaluation. If the State adopts identical or 
comparable manatee protection measures to the ones we adopt, we will 
assess whether withdrawing Federal designations is appropriate. We will 
also continue to evaluate the other 14 proposed sites not currently 
included in this final rule, and will consider foregoing Federal 
designations if appropriate measures are adopted by the State or local 
governments. Additionally, we will continue to monitor other sites that 
may warrant additional protection. If we identify additional areas in 
need of protection, we will work with the State to establish necessary 
protection or may propose actions in the future, as appropriate.
    Given that reducing watercraft-related manatee mortality is 
important to the recovery of the species, and given continuing 
watercraft-related mortality in Brevard County, we have decided to 
proceed with final designation of the Barge Canal and Sykes Creek 
sites. The remaining 14 sites in the proposed rule are somewhat less 
urgently in need of regulation than the Barge Canal and Sykes Creek 
sites. Therefore, we are deferring final rulemaking on these sites 
until December 1, 2002. At that time, if we determine that designation 
is warranted for the remaining 14 sites, and if the State has been 
unable to complete rulemaking on those sites, we intend to proceed with 
final rulemaking on those sites.

Site Selection Process and Criteria

    In preparation for this action, we met with representatives from 
local, State, and Federal agencies and organizations involved in 
manatee research, management, and law enforcement. These meetings 
helped us to develop a list of sites throughout Florida and southeast 
Georgia that manatee experts believed should be considered for possible 
designation as manatee protection areas.
    As mentioned above, 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). An additional 36 comments 
were not specific to the topic or discussed other

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items. Fifteen commenters 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. Of the remaining comments, 28 specifically opposed 
and 8 specifically supported the establishment of additional manatee 
protection areas.
    We selected sites for inclusion in the proposed rule from the list 
of sites developed through the preliminary meetings and the information 
gathered at the public workshops and in response 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) of 
manatees 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 data including aerial 
survey data, manatee mortality data, and information from the Florida 
Marine Research Institute, Pathobiology Laboratory, and other 
information from State and Federal sources. These data were 
supplemented with information from manatee experts and the public, and 
our best professional judgment. In determining the potential 
effectiveness of our proposed actions, we considered the costs of 
managing and enforcing sites versus the benefits 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 would entail additional administrative 
burdens in terms of identifying and providing access to affected 
residents. We considered these administrative burdens in selecting 
sites. Finally, we evaluated the effectiveness of our actions against 
the likely effectiveness of actions by State and/or local governments. 
As stated previously, it was our goal to avoid sites that could be most 
effectively addressed by State or local government. However, the 
parallel suits against the State and Federal governments limited early 
coordination in the development of this proposal and the proposed State 
settlement. Therefore, duplication of effort may occur in the future. 
To resolve this, as appropriate we will consider withdrawing any 
actions where comparable State or local protection is established. We 
did, however, make every effort to make our designations consistent 
with the existing adjacent State or local designations.


    ``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, and not creating an excessive 
    ``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.
    We have amended the definition of ``water vehicle'' to include the 
terms watercraft and vessel. These terms are used interchangeably in 
the rule and in 50 CFR subpart J.
    We have also added personal watercraft to this definition.

Areas Designated as Manatee Refuges

Barge Canal

    We are establishing a manatee refuge, containing approximately 
276.3 hectares (ha) (682.7 acres), for the purpose of regulating 
watercraft operation to slow speed (channel included) for the entire 
length of the Barge Canal and extending eastward to the Canaveral 
Locks, Brevard County. These regulations will be in effect all year.
    The Barge Canal serves as a travel corridor between the Indian and 
Banana Rivers for manatees and mariners alike. Aerial survey data 
indicate significant use of the site by manatees. Currently there are 
four areas within the Barge Canal that are regulated by the State as 
40-kilometers-per-hour (25-miles per hour) zones with a 7.6-meters (25-
feet) slow-speed shoreline buffer, all year, while the remainder of the 
Barge Canal is a slow-speed all-year zone. High-speed vessel operation 
in a confined migration corridor has an enhanced likelihood of 
resulting in take of manatees. There have been 16 watercraft-related 
manatee mortalities in the Barge Canal and its vicinity (Florida Marine 
Research Institute 2000). Requiring vessels to operate at slow speed 
would minimize the potential for take of manatees.
    The State recently approved new regulations for Brevard County that 
would also designate the Barge Canal as a slow-speed zone; thereby 
providing a comparable level of manatee protection as our designation. 
A number of organizations and individuals have appealed the State's 
rulemaking and it is uncertain at this time when, or whether, the 
State's designation may take effect. Due to the urgent need to reduce 
watercraft-related mortality in the Barge Canal, we are proceeding with 
this designation at this time so that appropriate protective measures 
will be in place should the State be unable to implement its rule.

Sykes Creek

    We are establishing a manatee refuge, containing 342.3 ha (845.8 
acres) more or less, in Sykes Creek in Brevard County for the purpose 
of regulating watercraft operation to slow-speed (channel included) all 
    Aerial survey data indicate a significant amount of manatee use of 
Sykes Creek. Manatees consistently use this site for feeding, resting, 
and breeding. Like the Barge Canal, it is a fairly narrow water body 
and has been the site of 13 watercraft-related manatee mortalities 
(Florida Marine Research Institute 2000). High-speed vessel operation 
in this area has a high likelihood of resulting in take of manatees. 
Regulating vessels to proceed at slow speed minimizes the likelihood of 
a take incident.
    The State recently approved new regulations for Brevard County that 
would also designate Sykes Creek as a

[[Page 685]]

slow speed zone; thereby providing a comparable level of manatee 
protection as our designation. A number of organizations and 
individuals have appealed the State's rulemaking and it is uncertain at 
this time when, or whether, the State's designation may take effect. 
Due to the urgent need to reduce watercraft-related mortality in Sykes 
Creek we are proceeding with this designation at this time so that 
appropriate protective measures will be in place should the State be 
unable to implement its rule.

Summary of Comments and Recommendations

    In the August 10, 2001, proposed rule (66 FR 42318), 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, 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. The following is a summary of the comments received. 
Comments of a similar nature have been grouped together. Comments 
related to specific sites in the proposed rule, other than the two 
discussed in this final rule, will be addressed when final 
determinations for those sites are published.
    Comment 1: The FWC noted our intention to consider withdrawing 
Federal designations should State or local governments enact comparable 
protective measures, and recommended that we define the means by which 
we will determine if actions by State or local governments provide a 
comparable level of protection.
    Response: With regard to the Barge Canal and Sykes Creek, we 
believe that the pending State rule for Brevard County provides, on 
balance, a greater level of manatee protection than our rule. While we 
continue to have reservations regarding certain exemptions that have 
been granted by the State (see response to Comment 21 below), it is 
clear that the FWC's Brevard County rule, taken as a whole, provides 
needed protection to a far greater area than our rule. The FWC rule 
addresses the four areas identified in our proposed rule (Barge Canal, 
Sykes Creek, Haulover Canal, and Cocoa Beach Municipal Park) with 
similar or identical measures. Additionally, the FWC rule provides 
additional protection for manatees throughout the Indian River and 
Banana River within Brevard County by adding additional shoreline 
buffers and by eliminating several high-speed access channels. As such, 
should the State prevail in the challenge to their rulemaking, we 
believe that the Federal designation of the Barge Canal and Sykes Creek 
would likely be unnecessary. We view this as a prime example of how the 
greater resources of the FWC can enable them to accomplish more through 
State action than can be accomplished through Federal action.
    With respect to the other 14 sites identified in our proposed rule, 
we cannot, at this time, identify specific standards for what would 
constitute comparable levels of protection. We recognize that there may 
be alternative means of implementing effective protective measures at 
many of these sites. These alternatives may be beyond our authority or 
resources to implement through our rulemaking, but may be available to 
State or local governments. Rather than limiting the options of State 
and local governments by insisting that they enact regulations 
identical to those we have proposed, we intend to participate fully in 
the State and local rulemaking processes and to articulate our views 
and recommendations regarding proposed protective measures as early as 
possible in those processes, particularly with respect to whether we 
consider potential protection measures to provide a comparable level of 
    Comment 2: The FWC noted that appropriate posting of designated 
manatee protection areas is a critical element in the success of 
manatee protection zones, and recommended that we incorporate meetings 
with the FWC, appropriate Inland Navigation Districts, and local 
governments, to develop a clear delineation of responsibilities for 
posting signs for federally designated areas.
    Response: We agree that appropriate signage is a critical element 
to the effective implementation of manatee protection areas. We will 
fully involve the FWC, appropriate Inland Navigation District and local 
governments, as well as the U.S. Coast Guard, in the development of 
sign plans for all Federal manatee protection areas.
    Comment 3: The FWC expressed concern regarding enforcement of the 
new manatee protection areas and recommended that we clarify that we 
are responsible for enforcement of these areas. They also expressed 
concern that establishment of Federal manatee protection areas in and 
adjacent to State speed zones, which carry different penalties for 
violation, may generate confusion among the boating public.
    Response: Manatee protection areas are only effective to the extent 
that boaters comply with posted regulations. As such, enforcement is an 
essential component of our effort to establish additional manatee 
protection areas. FWC officers are authorized to enforce Federal 
manatee protection area regulations, just as our law enforcement 
officers can and do enforce State manatee protection regulations. We 
welcome any assistance that the FWC can provide in the enforcement of 
these manatee protection areas, but we have made a commitment to ensure 
that adequate enforcement is provided for these areas. As noted above, 
the ability to adequately post and enforce designated sites was an 
important factor in our site selection process.
    Comment 4: The FWC noted that we have deferred action on the 
remaining 14 sites identified in the proposed rule until December 2002 
to give State and local governments the opportunity to enact comparable 
protective measures.

[[Page 686]]

The FWC stated that they have no plans to consider rules in two of the 
sites in the proposed rule (Little Sarasota Bay and Shell Island) and 
that no final State action would be taken on sites in Tampa Bay by 
December 2002.
    Response: We note that, while State action on the sites in Tampa 
Bay is not anticipated to occur prior to December 2002, local action is 
likely within this timeframe. Pinellas County has recently adopted an 
ordinance to provide increased manatee protection at the Bartow Power 
Plant, and we are currently evaluating the effectiveness of this 
action. Additionally, Hillsborough County is currently considering 
measures to improve manatee protection in much of Tampa Bay, including 
the Gannon and Tampa Electric Company power plant sites identified in 
our proposed rule. We will monitor the progress of these initiatives 
over the coming months to determine whether the proposed Federal 
designations are warranted.
    Information regarding the Shell Island and Little Sarasota Bay 
sites was presented during the public comment period. We are continuing 
to evaluate the information and have made no decisions regarding final 
designation of these sites.
    Comment 5: The FWC concurred with our determination that the data 
strongly support the decision to designate the Barge Canal and Sykes 
Creek as manatee protection areas. The FWC indicated they support our 
proposed designations for these areas, but recommended that the Federal 
rules be repealed if the FWC is successful in defending their recently 
adopted rules.
    Response: We agree that, should the State prevail in the challenge 
to their Brevard County rule, the Federal designations would likely be 
    Comment 6: Several commenters recommended establishing manatee 
protection areas at several sites in addition to, or in lieu of, the 16 
sites identified in the proposed rule. Other sites recommended for 
considerations included--the downtown Jacksonville portion of the St. 
John's River, Duval County; Goodby's Creek, Duval County; the Tomoka 
River, Volusia County; the Canaveral sewer outfall, Brevard County; the 
Indian River southeast of the railroad bridge causeway, Brevard County; 
the Haulover Canal observation area, Brevard County; the Riviera Beach 
power plant outfall, Palm Beach County; the Weeki Wachee River, 
Hernando County; the Little Manatee River, Hillsborough County; the 
Manatee and Braden Rivers, Manatee County; Charlotte Harbor, Charlotte 
County; Bokeelia Point, Lee County; San Carlos Bay, Lee County; the 
Caloosahatchee River, Lee County; Mullock Creek/Ten Mile Canal, Lee 
County; Estero Bay, Lee County; Everglades National Park, Collier and 
Monroe Counties; Faka Union Canal/Port of the Islands, Collier County; 
and Ten Thousand Islands/Chokoloskee Bay, Collier County.
    Response: In designating manatee protection areas, we considered 
the needs of the species on an ecosystem level in an attempt to address 
life requirements of the manatee and to progress toward recovery of the 
species. Tempering this evaluation was the limited resources available 
to us, in terms of both staffing and funding, for accomplishing the 
establishment, maintenance, and regulation and enforcement of 
designated areas.
    All of the above-mentioned sites, and many others, were considered 
at some point in the evaluation process. Some (such as the Weeki Wachee 
River, Goodby's Creek, and the Canaveral sewer outfall) did not meet 
our criteria for further consideration because adequate protective 
measures are currently in place at these sites and the likelihood of 
future take at these sites is limited, provided the existing 
regulations are appropriately enforced. Others (such as Caloosahatchee 
River, Everglades National Park, and Ten Thousand Islands/Chokoloskee 
Bay) did not meet our criteria for designation at this time because it 
is as yet unclear, based on current information, what additional 
protective measures could be implemented to effectively reduce on-going 
watercraft-related manatee mortality in these areas; however, we agree 
that these areas warrant further study. We note that even the commenter 
who recommended we take immediate action in the Ten Thousand Islands/
Chokoloskee Bay area could offer no specific recommendation as to what 
to do in this area. We agree that the remaining sites mentioned above 
(the St. John's River in downtown Jacksonville, the Tomoka River, the 
Haulover Canal observation area, the Indian River southeast of the 
railroad bridge causeway, the Riviera Beach power plant outfall, the 
Little Manatee River, the Manatee and Braden Rivers, Charlotte Harbor, 
Bokeelia Point, Estero Bay, San Carlos Bay, Mullock Creek/Ten Mile 
Canal, and Faka Union Canal/Port of the Islands) do, or may, warrant 
further consideration, particularly if State or local efforts to 
improve manatee protection at these sites are unsuccessful, and if 
manatees do not make satisfactory progress toward recovery. However, we 
do not agree with the commenters that action at any of these sites is 
any more urgent than the actions identified in our proposed rule. As 
previously stated, we believe the sites included in this final rule are 
areas where federal action could be most effective for manatee 
conservation and is most urgently needed.
    We are committed to continuing the protection of the manatee 
through a cooperative effort with our management partners at the 
Federal, State, and local levels, as well as efforts involving private 
entities and members of the public. We encourage State and local 
measures to improve manatee protection. Additionally, we have indicated 
that future actions could establish additional manatee protection areas 
if the need becomes apparent.
    Comment 7: In recommending action at the sites identified in 
Comment 6, some commenters noted that several of the sites identified 
in our proposed rule were under consideration for designation by the 
FWC and/or local governments, and questioned our decision to include 
such sites in our proposed rule, given the likelihood that these sites 
would be appropriately regulated without Federal designation.
    Response: Many of the sites in our proposed rule and the two sites 
in this final rule are currently under consideration for State action. 
We first became aware of this overlap when the Plaintiffs in the State 
lawsuit made the terms of the draft settlement agreement public. Due to 
our inability to discuss pending legal actions with the FWC, only the 
Plaintiffs were in a position to recognize the overlap and conflicts 
between the two settlement agreements. The Plaintiffs did not raise 
these conflicts to our attention. In fact we requested and received 
several extensions of the deadline for publishing the proposed rule, 
and during these extensions several options for resolving the situation 
were presented to the Plaintiffs. All were rejected along with our 
request for further extensions. As such, in order to meet our 
settlement obligations, we published the proposed rule. We are 
publishing this final rule at this time because we have determined that 
the actions are urgently needed at these sites and because these 
actions will fulfill our settlement obligations. We have deferred 
action on the remaining 14 sites because they are somewhat less 
urgently in need of action, and in order to allow for additional 
coordination with State and local governments.
    Comment 8: One commenter stated that we excluded areas from the 
proposed rule that are, in their view, of extremely high priority, 
while including in our proposed rule a number of sites

[[Page 687]]

that are, in their view, of much lower concern and/or are being 
addressed in other ways.
    Response: We have concluded that the sites recommended by this 
commenter either do not warrant additional protection, or are of no 
higher priority than the sites identified in our proposed rule. We note 
that this commenter agreed that the Barge Canal and Sykes Creek are in 
need of improved manatee protection.
    Comment 9: Many commenters recommended that we take action on sites 
identified in the proposed rule sooner than we have proposed. Many 
recommended that we make emergency designations on the Barge Canal, 
Sykes Creek, and the Blue Waters on the Homosassa River, and make final 
designations on other sites sooner than December 2002.
    Response: We are firmly committed to establishing appropriate 
manatee protection in concert with State and local agencies and 
authorities. We believe that the State should have a lead role in 
establishing additional manatee protection areas. As such, we are 
providing latitude to the State and local governments to establish 
protection at 14 of the proposed manatee protection areas prior to 
finalizing Federal action. Such protection must be the same or 
comparable to that described in our proposed rule. We decided to 
expeditiously enact protection at the Barge Canal and Sykes Creek sites 
after evaluation of the significant amount of manatee use at these 
sites and the high probability of take, especially lethal take, at 
these sites, and after we determined that we could implement effective 
measures to reduce take at these sites. We determined that enacting 
emergency designations at any of the sites identified in our proposed 
rule was not prudent given the high level of public use of these waters 
and the high level of public interest/concern regarding this 
rulemaking. While we have determined that effective actions to reduce 
take over the long term can be implemented at the remaining 14 sites 
identified in the proposed rule, immediate action at these sites is not 
necessary to prevent take, nor is it necessary for the recovery of the 
    Comment 10: One commenter implied that we were violating the terms 
of the settlement agreement in the Federal case by failing to propose 
actions at sites identified by the Plaintiffs in the Federal case to be 
of high priority.
    Response: The plain language of the settlement states (paragraph 
11): ``The parties recognize that, in evaluating the need for refuges 
and sanctuaries the Service anticipates considering the needs of the 
manatee at an ecosystem level in order to ensure that adequate 
protected areas are available throughout peninsular Florida to satisfy 
the biological requirements of the species, with a view towards the 
manatees' recovery within the meaning of section 4 of the ESA.'' The 
settlement agreement does not require designation of any specific sites 
as manatee protection areas, and nowhere in the settlement is there a 
requirement that all protected areas established to meet the needs of 
the manatee be Federal. Clearly, in ``evaluating the need'' we must 
consider the existing condition of the ecosystem of which the manatee 
is a part, which includes an extensive network of protected areas 
designed specifically to meet the ``needs of the manatee.'' As long as 
appropriate protective measures are enacted, whether those actions are 
taken by State or Federal agencies does not matter.
    The recovery plan for the Florida manatee makes clear that 
achieving the goal of recovery will necessarily require the cooperation 
and efforts of all stakeholders. Our proposed rule for manatee 
protection areas was also clear on this point when it stated:

    We acknowledge that there exists a network of manatee speed 
zones and sanctuaries, which have been established throughout 
peninsular Florida by Federal, State, and local governments. This 
existing structure works toward the above-stated goal of providing 
adequate protected areas throughout peninsular Florida to satisfy 
the biological requirements of the species. The purpose of our 
evaluation is to identify gaps in the existing network and to 
propose appropriate measures for filling those gaps.

    As such, we have clearly met the letter and spirit of the 
settlement with respect to designation of manatee protection areas. As 
stated previously, we have concluded that many of the sites recommended 
by this commenter do not warrant Federal designation at this time, and 
we do not agree that the other sites recommended by the commenter are 
of any higher priority than the sites identified in the proposed rule.
    Comment 11: One commenter noted that the sites identified in our 
proposed rule differ in some respects from the ``areas with inadequate 
protection'' identified in our Final Interim Strategy on Section 7 
Consultations for Watercraft Access Projects that may Indirectly Affect 
the Florida Manatee (Final Interim Strategy) (66 FR 14924).
    Response: The areas we have proposed for designation as Federal 
manatee protection areas are in some cases different from the 
waterbodies we identified as ``areas with inadequate protection'' for 
the purposes of the Final Interim Strategy. Specifically, of the 13 
sites for which we proposed 16 manatee protection areas, only 6 are 
also identified as ``areas with inadequate protection'' in the Final 
Interim Strategy.
    The standard for manatee protection areas is that such 
establishment is ``necessary to prevent the taking of one or more 
manatees'' (50 CFR 17.103). Because ``take'' is very broadly defined, 
action of some form could be justified for many coastal waters in the 
State of Florida. In order to focus our efforts in the current 
rulemaking, we defined four criteria for selecting sites as follows--
(1) evidence that the site is used by manatees; (2) historic evidence 
of take (harm or harassment) of manatees 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. Again, many sites throughout Florida could be 
argued to satisfy the first three criteria to some extent; however, the 
vast majority of sites do not satisfy criterion four because of 
limitations we face in terms of personnel and budget and because many 
areas present manatee protection problems due to circumstances that are 
difficult or impossible to correct within our manatee protection area 
    On the other hand, ``areas with inadequate protection'' were 
identified in the context of conducting ESA section 7 consultations 
regarding U.S. Army Corps of Engineers authorization of boat access 
facilities. In this context, watercraft-related ``take'' of manatees is 
a distant indirect effect of the authorization of a boat access 
facility. While we agree that construction of boat access facilities is 
a potential contributing factor to watercraft-related take of manatees, 
in the vast majority of cases a direct cause and effect relationship 
does not exist between the construction of a marina, dock, or boat 
ramp, and watercraft-related take of manatees. As such, in order to be 
considered an ``area with inadequate protection'' in this context, the 
existing protection measures on a given waterbody must be such that the 
likely result of adding additional boat access to the area is a 
foreseeable increase in watercraft-related take. This could be because 
current protection measures are either totally lacking or woefully 
inadequate in areas with chronic watercraft-related take, or because of 
issues peculiar to the waterbody such that incidental take of manatees 

[[Page 688]]

inevitable regardless of protective measures implemented.
    As such, the standard for identifying a waterbody as an ``area with 
inadequate protection'' is generally higher than that for establishing 
a manatee protection area. This is why 7 of the 13 areas proposed as 
manatee protection areas are not also ``areas with inadequate 
protection.'' Conversely, 11 sites identified as ``areas with 
inadequate protection'' were not proposed as manatee protection areas. 
This is because either we determined that we could take no action at 
this time to effectively address the identified problem at a given 
site, or we decided that action at a particular site was not as high a 
priority as action at the sites contained in the proposed rule, and was 
therefore not included in the proposed rule due to limitations of staff 
and/or budget. Designation as manatee protection areas could be 
proposed for this latter group of sites in the future, if staffing and 
funding permit, and if such actions are determined to be necessary for 
the recovery of the species. Our list of ``areas with inadequate 
protection'' will continue to be updated as new information becomes 
    Comment 12: Some commenters expressed concern that requiring boats 
to travel at slow speed throughout the entire length of the Barge Canal 
and Sykes Creek would add an unreasonable amount of time to boat trips 
through this area. One commenter estimated that the designations would 
add 3 hours and 12 minutes to a round trip.
    Response: In response to this concern we tested the amount of time 
required to travel from the southernmost end of the slow speed zone on 
Sykes Creek, through Sykes Creek and the Barge Canal to the Canaveral 
Locks. This represents the longest possible distance that would need to 
be traveled at slow speed under this final rule. Under the existing 
speed zones this trip currently takes approximately 50 minutes. Under 
the conditions established in this final rule, the same trip will take 
approximately 1 hour and 25 minutes; an increase in travel time of 35 
    Comment 13: Several commenters requested that we hold additional 
public hearings.
    Response: One public hearing was announced with the proposed rule. 
We scheduled an additional three hearings in order to provide ample 
opportunity for public comment. All hearings were well attended, and 
everyone in attendance was afforded the opportunity to express their 
comments and concerns. Additionally, we afforded a 60-day public 
comment period to allow for the submission of written comments. 
Finally, additional information regarding the proposed rule, including 
the material presented at the public hearings has been available on our 
website. We have also responded, in timely fashion, to requests for 
information from specific stakeholders throughout the rulemaking 
process. We believe that we have provided sufficient opportunity for 
public comment on this rulemaking.
    Comment 14: Some commenters expressed concern that human safety 
could be compromised by forcing all boaters into narrow channels, 
bottlenecks, and other confined circumstances.
    Response: We were very cognizant of human safety issues during the 
design phase of the manatee protection area planning process. Human 
safety while boating has always been and will continue to be the 
responsibility of the vessel operator. The two manatee protection areas 
in this final rule require vessels to proceed at slow speed and, as 
such, enhance boater safety while in these areas. At no site does the 
designation of these manatee protection areas place mariners in a 
position of encountering high-speed vessel traffic with no alternative 
safe route.
    Comment 15: Some commenters expressed concern that human safety 
will be compromised by requiring vessel operators to proceed at slow 
speeds in the face of emergency situations, like rapidly approaching 
thunderstorms or medical emergencies.
    Response: Federal regulations allow for an exemption to manatee 
protection area regulations in the event of emergency. Specifically, 
our regulations (50 CFR 17.105(c)) state that ``any person may engage 
in any activity otherwise prohibited by this subsection if such 
activity is reasonably necessary to prevent the loss of life or 
property due to weather conditions or other reasonably unforeseen 
circumstances, or to render necessary assistance to persons or 
    Comment 16: Several commenters noted that the size of the manatee 
population appears to have increased over time, and questioned the need 
for additional protective measures.
    Response: A discussion of the current status of the manatee 
population is provided in the ``Background'' section. Two of the 
criteria for determining whether species are endangered or threatened 
under the ESA are ``(D) the inadequacy of existing regulatory 
mechanisms and (E) other natural or manmade factors affecting its 
continued existence'' (16 USC 1533(a). Furthermore, the MMPA sets a 
general moratorium for the taking of marine mammals. Regardless of the 
size or status of the manatee population, we are required to ensure 
that take of manatees is minimized to the extent possible, and all take 
is prohibited unless authorized under the MMPA.
    Minimizing, to the extent practical, the taking of manatees as a 
result of watercraft collisions is a top priority in manatee recovery 
and management programs. Currently, the areas addressed in this rule 
have a significant potential for ``take'' based on the amount of 
manatee use and are characterized by limited current protective 
    Comment 17: Several commenters stated that we should focus on 
better enforcement of existing regulations before imposing additional 
restrictions on boaters.
    Response: This issue was identified as one of the alternatives 
addressed within the Manatee Protection Area Environmental Assessment. 
While improvements in both the enforcement and education arenas are 
laudable in enhancing manatee protection, such improvements may be of 
little effect when applied to areas without regulations or with 
inadequate protection to minimize the take of manatees. The State has 
placed an increased emphasis on enforcement, and we have made a 
substantial commitment to enforcing manatee protection areas over the 
past few years. We anticipate that these efforts will continue.
    Comment 18: Some commenters recommended that we abstain from 
designation of Federal manatee protection areas and allow the State and 
local authorities to provide for manatee protection.
    Response: We are the Federal agency responsible for manatee 
management and protection activities under both the ESA and the MMPA. 
As such, we must take an active role in regulatory activities involving 
the manatee. This in no way diminishes the important role that State 
and local agencies play, or the role of the private sector. Recognition 
is given to both State and local efforts to establish manatee 
protection, and we are committed to supporting these efforts. We have 
stated that the State should have leadership in establishing additional 
manatee protection areas. With this final rule, we have focused on 
sites where watercraft-related manatee mortality is highest, and where 
we determined that Federal action can effectively address the needs in 
the particular area. If the State is successful in implementing their 
pending rules for Brevard County, we will consider

[[Page 689]]

withdrawing Federal designation of these sites.
    Comment 19: Some commenters stated that the definition of ``Slow 
Speed'' is arbitrary and unenforceable, and recommended that we 
consider using some other standard, such as a ``miles per hour'' limit 
to regulate vessel speed.
    Response: The definition of ``slow speed'' used in this rule is 
essentially the same as that used by the State in the Florida Manatee 
Sanctuary Act (F.A.C. 68C-22). This definition is generally understood 
by mariners and has proven to be enforceable. It is important to use a 
definition of ``slow speed'' that complements that used by the State. 
The sites included in this final rule are located in direct proximity 
to areas regulated by the State. The use of the same definition will 
ensure consistency and lessen confusion among the boating public.
    The establishment of another definition of ``slow speed'' or the 
use of a ``miles per hour'' speed zone poses many problems. 
Establishment of a ``miles per hour'' standard would necessitate all 
boats operating in these zones to be equipped with accurate 
speedometers. This standard would also require enforcement officers to 
procure equipment and attend periodic training to enforce these 
conditions. Of more importance is that boats operating at speeds in 
excess of what is allowed under the current definition of ``slow 
speed'' pose increased threats to manatees. Boats proceeding while 
``plowing the water'' with elevated bows, such as occurs when a vessel 
is operating at greater than ``slow speed,'' both obscure the forward 
vision of the operator and place the propulsion systems of the 
watercraft lower in the water. Both of these conditions increase the 
likelihood of a vessel collision with a manatee. With a subsequent 
increase of speed, the configuration of the vessel changes to one of 
planing. While this condition places the hull and outdrives of vessels 
higher in the water, it also decreases the reaction time needed by both 
the operator and the manatee to detect one another and take action to 
avoid collision.
    Comment 20: Many commenters stated that we have not adequately 
evaluated the economic impact of these designations.
    Response: The economic analysis conducted as part of this 
rulemaking determined that these actions would not have a significant 
economic impact. The two sites identified in this final rule will 
remain open for public access, albeit at ``slow speed'' travel. Through 
public hearings and public comment periods we sought information and 
comment on the activities occurring in these two sites. To our 
knowledge of the activities in these areas, and the fact that no 
activities will be prohibited although some may be inconvenienced by 
the need to proceed at slower speeds, we believe that this rule will 
not result in a significant economic dislocation.
    Comment 21: One commenter noted that the commenter operates boat 
manufacturing facilities on the Barge Canal, and stated that the 
proposed designation would adversely affect their ability to 
economically continue boat testing operations resulting in a 
substantial economic loss to the commenter's company. The commenter 
requested that we provide an exemption to our rule, similar to the 
exemption granted by the State, to allow the commenter to continue to 
conduct up to 40 tests per month at speeds up to 35 miles per hour in a 
portion of the Barge Canal.
    Response: Federal regulations provide exceptions to manatee 
protection area regulations only in limited circumstances (50 CFR 
17.105(c)). We have assessed the information and recommendations 
presented by this commenter and have concluded that we do not have the 
authority under our existing regulations to grant an exception for this 
type of activity based on economic hardship.
    The MMPA prohibits the take of marine mammals, including manatees. 
As such, we cannot authorize, or exempt from regulation, any activities 
that may cause the take of manatees, other than those necessary for 
protecting life and property. Nonetheless, we recognize that certain 
existing uses of some waterbodies could be adversely affected or 
eliminated by designation of manatee protection areas. We do not oppose 
continuation of these uses, provided it can be demonstrated that such 
uses will not cause take of manatees. Flexibility exists under the MMPA 
to except certain waterborne activities in refuges from the speed zone 
restrictions if it can be shown that such activities will be carried 
out under stringent conditions that prevent the take of manatees. At 
this time we intend to propose amendments to our regulations to 
incorporate a process by which we may evaluate and authorize specific 
activities within designated manatee protection areas, provided parties 
requesting such authorization can demonstrate that their activities 
will not cause the take of manatees.
    Comment 22: One commenter suggested that our proposed rule was 
contrary to the spirit and intent of Executive Order 12866, because we 
did not contact the commenter directly regarding the impact the 
proposed rule may have upon the individual's operations.
    Response: As part of the rulemaking process, we published an 
advance notice of proposed rulemaking in which we solicited information 
from the public regarding issues that should be addressed through the 
rulemaking. We also held six public workshops that provided additional 
opportunities for the public to provide input and voice concerns. With 
publication of the proposed rule, we afforded a 60-day period for 
submitting written comments, and held four public hearings. Through the 
commenter's participation in this process, we are aware of their 
concerns. We have responded to those concerns to the best of our 
ability with this final rule and our stated intent to pursue amendments 
to our regulations. We have also updated the information regarding the 
economic effects of the rule, as appropriate, to reflect information 
submitted by the commenter. These actions meet the requirements of 
Executive Order 12866.
    Comment 23: Many commenters suggested that technological advances 
may now make it possible for boaters and manatees to better detect the 
presence of one another and thereby avoid collisions, and recommended 
that these technologies be employed instead of restricting boat speeds.
    Response: Ongoing research is evaluating the sensory abilities of 
the manatee and the environmental factors that may affect these 
abilities. Potential technologies may enable boaters to better detect 
the presence of manatees. However, no technology is currently available 
that is proven to be effective in avoiding collisions between manatees 
and boats. For the foreseeable future, detection and avoidance 
technology will likely be used to supplement, rather than replace, 
traditional management strategies.
    Comment 24: Some commenters recommended that we selectively 
regulate watercraft and provide exemptions for those not responsible 
for take of manatees. These commenters stated that most watercraft-
related manatee mortality is caused by large vessels and/or barges, and 
that boats without propellers do not harm manatees.
    Response: The manatee mortality database contains information on 
the necropsy results of over 4,000 manatees. From this large 
information source, several interesting aspects of watercraft-related 
manatee mortality may be surmised. It is impossible to determine, in 
most cases, the size of the boat which

[[Page 690]]

struck a manatee. The exception to this is the very few cases where a 
responsible boater has reported a collision and researchers are able to 
compare the actual vessel to the observed injuries. In a few documented 
cases, manatees were obviously killed by a large vessel, the symptoms 
of which include massive crushing and or bifurcation (slicing into 
pieces) of the animal. The vast majority of cases involving watercraft-
related mortality involve less dramatic injuries. Investigations 
comparing blade diameter and pitch indicate that the majority of 
manatees killed from watercraft-related collision are struck by 
smaller, fast-moving vessels.
    As stated above, injuries to manatees from vessel impacts can be 
characterized as either lacerations or blunt trauma. Percentages 
generated by the mortality data-base indicate that 55 percent of the 
watercraft-related mortalities are the result of blunt trauma. Such 
trauma can result from impacts from vessel hulls, lower units, or other 
vessel components. Vessels without propellers (e.g., personal 
watercraft) still have the potential to ``take'' manatees.
    Comment 25: Some commenters recommended that we consider factors 
such as water depth and the presence of aquatic vegetation when 
deciding the boundaries of manatee protection areas rather than base 
boundaries on unnatural features such as navigation channels or bank-
to-bank designation of waterbodies.
    Response: We considered such environmental features in evaluating 
potential manatee protection sites, because these factors influence 
manatee use of areas. There have been instances where habitat features 
(such as water depth) have been used to delineate boundaries of 
protection areas. The disadvantage of the use of such features for the 
purpose of this rule is the complexity and costs associated with such 
designs, and the potential for causing confusion among the regulated 
public resulting in poor compliance. Protection areas designed around 
environmental factors tend to be irregular and complex. This, in turn, 
results in significant increases in costs of implementation in terms of 
posting and the subsequent costs of maintenance. The limited resources 
available for this program required a less complex strategy for 
providing adequate protection for manatees and reasonable use of these 
areas by the public.
    Comment 26: Some commenters recommended that we allow the challenge 
to the State rule for Brevard County to be adjudicated prior to taking 
action at the Barge Canal and Sykes Creek.
    Response: Information regarding these sites indicates a clear need 
to establish protective measures to prevent, to the extent possible, 
take of manatees. The process of finalizing this rule is occurring 
simultaneously with the aforementioned challenge to the State rule. We 
concluded that we must move forward with designation of these sites at 
this time in order to ensure that appropriate protective measures are 
in place at these sites as soon as possible.
    Comment 27: Some commenters noted that the Barge Canal and Sykes 
Creek provide ideal training sites for competitive rowers from around 
the Nation and the world, particularly during winter months. These 
waterbodies are ideally suited for training due to the fact that, 
regardless of wind direction, crews can find protected areas with flat 
water that prevents the rowing shells from being swamped. These 
commenters further noted that crews are accompanied by chase boats that 
carry the coaches, and that a primary function of these chase boats is 
to render aid to the crews in the event of an emergency. The chase 
boats are typically small john boats with 10 to 15 horsepower engines. 
The commenters stated that designating the Barge Canal and Sykes Creek 
as slow speed zones would deprive them of use of these waters as 
training facilities, and that no other suitable locales for such 
training are available in the area.
    Response: We place a high priority on human safety. As such, we 
will allow chase boats operating in the Barge Canal and Sykes Creek 
manatee protection areas to travel in excess of ``slow speed'' for the 
purpose of safety during training of sculling/crewing athletes. The 
purpose of the chase boats is, in part, to render necessary assistance 
to persons or property, which is excepted under our existing 
regulations (50 CFR 17.105). Chase boats must remain in close proximity 
to rowing shells to provide safety equipment (such as personal 
flotation devices) and other needed assistance. Persons engaged in such 
activity must remain vigilant for manatees and must take appropriate 
action, including termination of training if necessary, to avoid take 
of manatees. These vessels will be required to comply with all posted 
speed zones when not actively engaged in training, including during 
transit to and from training areas.

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 2 manatee refuges (1,528.5 
acres) in Brevard County in the State of Florida. The public support 
for manatee protection is substantial in Florida. Using a contribution 
continuum method and 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 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 two additional manatee 
protection areas in Florida. We are proposing to reduce the level of 
take of manatees by controlling human activity in these two areas. 
Affected waterborne activities include the use of water vehicles. The 
two areas designated would be slow-speed zones. The economic effect of 
these designations will be measured by the number of watercraft 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 has 12,000 miles of rivers and streams and 3 million 
acres of lakes and ponds so the designation of 1,528 acres for lower 
speed operation 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.
    One watercraft manufacturer is known to use one of the designated 
sites as a boat testing area. While alternative sites without speed 
zones are available nearby that allow for continuation of boat testing, 
use of these sites would entail costs to the manufacturer due to 
additional travel time needed to conduct testing. This rule will affect 
the company's boat testing program. We are intending to propose 
amendments to our regulations (50 CFR 17.105) to allow for otherwise 
prohibited activities to

[[Page 691]]

continue provided those engaging in such activities can demonstrate 
that the activities will not result in take of manatees.
    For some watercraft users, the inconvenience and extra time 
required to cross a slow-speed zone 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 nearly 800,000 registered boats, but 
only those boats and recreationists using the designated sites will 
potentially be affected. However, since 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. 
The current designation of these two protection areas will cause some 
inconvenience in travel time, but alternative sites within the 
proximity of the sites are available for all waterborne activities. 
Recreationists may be inconvenienced by having to travel to an 
undesignated area, but they are not prohibited from participating in 
any waterborne activity. Currently, no data sources estimate the amount 
of recreational activity in and around the two designated areas. 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 protections are put in place in the future, we will consider 
removing those areas from Federal protection.
    c. This final 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 
    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 both public hearings and public notice and comment 
periods to determine the activities occurring in Barge Canal and Sykes 
Creek that might be affected by the creation of these manatee refuges. 
Based on the activities that we are aware of being conducted in these 
areas, and the fact that no activities will be prohibited although some 
may be inconvenienced by the need to proceed at slower speeds, we 
believe that this rule will not result in a significant economic 
    To determine the potential effects of this rule on small entities, 
we looked at economic data from Brevard County. Table 1, below, depicts 
general economic characteristics, and Table 2 gives employment data. As 
can be seen in Table 1, the growth rate is slightly lower than the 
State average. Larger households account for the lower per capita 
income estimate. The proportion of total industry earnings coming from 
the amusements and recreation sector is 0.5 percent. The service sector 
is the largest economic contributor followed by retail trade and the 
real estate sectors. Overall, only a small proportion of earnings come 
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 Seven Affected Counties in Florida--1997
                                                                     Per                                                           industry
                                                                   capita      10 year     Personal      10 year       Total     earnings for
             Selected Florida Counties               Employment   personal     rate of      Income       rate of     industry     amusements    Percent
                                                                   income      growth       ($000)       growth      earnings         and       of total
                                                                  (Dollars)   (Percent)                 (Percent)     ($000)      recreation
Establishing Sanctuaries:
    Citrus........................................       35,663     $18,493         3.9    $2,060,167         6.9      $793,347        $6,650        0.8
    Hillsborough..................................      644,694      23,719         5.2    21,558,783         6.6    18,847,236        67,676        1.4
    Pinellas......................................      506,946      28,367         4.9    24,770,929         5.5    13,876,518       114,826        0.8
Establishing Refuges:
    Brevard.......................................      223,815      22,205         3.7    10,342,080         6.3     6,255,354        34,237        0.5
    Charlotte.....................................       47,091      21,861         3.7     2,894,781         7.6       995,159        10,336        1.0
    Lee...........................................      196,448      25,568         4.4     9,862,900         7.3     4,848,936        61,103        1.3
    Saralota......................................      169,984      35,654         5.2    10,706,931         6.8     4,239,034       114,742        2.7
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://govinfo.library.orst.edu/cgi-bin/reis-list.

    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.

[[Page 692]]

                                          Table 2.--Employment Characteristics of Brevard County, Florida--1997
                                                [Includes sic codes 09, 44, 59, 79, services, and nec]\1\
                                                                                                                                           Number of
                                             Mid-March        Total           Number of           Number of            Number of         establishments
                                            employment   establishments  establishments (1-  establishments (5-   establishments (10-     (20 and over
                                                                            4 employees)        9 employees)         19 employees)         employees)
Brevard County...........................       65,049          5,292                3,145               1,075                   581                591
Source: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://fisher.lib.virginia.edu/cig-local/cbpbin/go.cgi.
\1\ sic 09--Fishing, hunting, and trapping.
sic 44--water transportation.
sic 59--miscellaneous retail services division.
sic 79--amusement and recreation services nonclassifiable establishments division.

    All of the acreage designated (1,528.5 acres) by this rule is for 
manatee refuges, which would only require a reduction in speed. We 
acknowledge that watercraft operating in barge canal will be required 
to go slower in designated areas and will required approximately 35 
additional minutes to traverse the canal. We believe the additional 
time necessary will cause more than an insignificant economic effect. 
The additional time required may cause some recreationists to go to 
alternative sites, which may cause some loss of income to some small 
businesses. However, the additional time required is minimal and we 
believe that this will not be a significant economic dislocation.
    The only known direct effect will be on a boat manufacturer which 
tests boats in the Barge Canal. Testing boats require the manufacturer 
to operate boats at speeds of up to 35 mph, and the costs of relocating 
the test site have not been specifically estimated. However, based on 
information provided by the company, designation of the Barge Canal as 
a manatee protection area may have a more than minimal impact on the 
boat testing operations of this business. Substitute sites are 
available within a reasonable distance; however, the costs of operating 
at these sites will be substantially greater than the costs of using 
the current test site in the Barge Canal.
    As mentioned above, we intend to propose amendments to our 
regulations (50 CFR 17.105) to incorporate a process by which we may 
evaluate and authorize specific activities within designated manatee 
protection areas, provided parties requesting such authorization can 
demonstrate that their activities will not cause the take of manatees. 
If the manufacturer is able to meet this standard, we anticipate that 
this rule will result in at most a temporary impact on their boat 
testing program.

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 final rule may cause some inconvenience to 
recreationists because of the speed restriction on manatee refuge 
areas, but this should not translate into any significant business 
reductions for the many small businesses in the seven potentially 
affected counties, aside from the above-mentioned boat manufacturer. An 
unknown portion of the establishments shown on Table 2 could be 
affected by this rule. Because the restrictions on recreational 
activity are believed to be no more than an inconvenience for 
recreationists, 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. Aside from the above-mentioned effects 
of this rule on the testing of boats in the Barge Canal, which have not 
been specifically quantified and which are anticipated to be temporary, 
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 because of speed limits, and a temporary interruption in 
the testing of boats in the Barge Canal, 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.


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


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

[[Page 693]]

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 final regulation will not impose new record keeping or 
reporting requirements on State or local governments, individuals, 
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), 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 rule is 
not a significant regulatory action under Executive Order 12866 and it 
only requires vessels to proceed at slow speed along two small segments 
(600.6 ha or 1528.5 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).


    The primary author of this document is Cameron Shaw (see ADDRESSES 


    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.

Regulation Promulgation

    Accordingly, we 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. In Sec. 17.102, remove the definition for ``water vehicle'' and 
add definitions, in the alphabetical order, as follows:

Sec. 17.102  Definitions.

* * * * *
    Idle speed is defined as the minimum speed needed to maintain 
steerage (direction) of the vessel.
* * * * *
    Planing means riding on or near the water's surface as a result of 
the hydrodynamic forces on a water vehicle's hull, sponsons, foils, or 
other surfaces. A water vehicle is considered on plane when it is being 
operated at or above the speed necessary to keep the vessel planing.
    Slow speed is defined as the speed at which a water vehicle 
proceeds when it is fully off plane and completely settled in the 
water. Due to the different speeds at which water vehicles of different 
sizes and configurations may travel while in compliance with this 
definition, no specific speed is assigned to slow speed. A water 
vehicle is not proceeding at slow speed if it is: on a plane; in the 
process of coming up on or coming off of plane; or creating an 
excessive wake. A water vehicle 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) means that the slow-speed designation 
does not apply to those waters within the maintained, marked channel.
    Slow speed (channel included) means that the slow-speed designation 
applies both within and outside the designated channel.
    Wake means all changes in the vertical height of the water's 
surface caused by the passage of a water vehicle, including a vessel's 
bow wave, stern wave, and propeller wash, or a combination thereof.
* * * * *
    Water vehicle, watercraft, and vessel include, but are not limited 
to, boats (whether powered by engine, wind, or other means), ships 
(whether powered by engine, wind, or other means), barges, surfboards, 
personal watercraft, water skis, or any other device or mechanism the 
primary or an incidental purpose of which is locomotion on, or across, 
or underneath the surface of the water.

    3. Amend Sec. 17.108 as follows:
    a. Remove the note following paragraph (b) and;
    b. Add paragraph (c) as set forth below.

Sec. 17.108  List of designated manatee protection areas.

* * * * *
    (c) Manatee refuges. The following areas are designated as manatee 
refuges. For each manatee refuge, we will state on appropriate signs 
which, if any, waterborne activities are prohibited, and state the 
applicable restrictions, if any, on permitted waterborne activities. 
The areas that will be posted are described as follows:
    (1) The Barge Canal Manatee Protection Area
    (i) The Barge Canal Manatee Protection Area is described as all 
waters lying within the banks of the Barge Canal, Brevard County, 
including all waters lying within the marked channel in the Banana 
River that lie between the east entrance of the Barge Canal and the 
Canaveral Locks; containing approximately 276.3 ha (682.7 acres).
    (ii) Watercraft are required to proceed at slow speed (channel 
included) all year. The use of watercraft at speeds greater than slow 
speed is prohibited throughout the Barge Canal Manatee Protection Area.

[[Page 694]]


[[Page 695]]

    (2) The Sykes Creek Manatee Protection Area.
    (i) The Sykes Creek Manatee Protection Area is described as all 
waters, including the marked channel in Sykes Creek, Brevard County. In 
particular, the portion of Sykes Creek southerly of the southern 
boundary of that portion of the creek commonly known as the ``S'' curve 
(said boundary being a line bearing East from a point on the western 
shoreline of Sykes Creek at approximate latitude 28 degrees 23'24" N, 
approximate longitude 80 degrees 41'27" W) and northerly of the Sykes 
Creek Parkway; containing approximately 342.3 ha (845.8 acres).
    (ii) Watercraft are required to proceed at slow speed (channel 
included) all year. The use of watercraft at speeds greater than slow 
speed is prohibited throughout the Sykes Creek Manatee Protection Area.

[[Page 696]]


    Dated: December 28, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-265 Filed 1-4-02; 8:45 am]