[Federal Register: July 7, 2004 (Volume 69, Number 129)]
[Rules and Regulations]               
[Page 40796-40805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ23

Endangered and Threatened Wildlife and Plants; Removal of Federal 
Protection Status From Two Manatee Protection Areas in Florida

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the Fish and Wildlife Service (Service), take action to 
withdraw two areas in Florida from those designated as federally 
established manatee protection areas. We are taking this action under 
the Endangered Species Act (ESA) of 1973 and the Marine Mammal 
Protection Act (MMPA) of 1972. The areas we are withdrawing from 
designation are manatee refuges, in which watercraft operators are 
required to operate at slow speeds throughout the year. Specifically, 
the sites are the Pansy Bayou Manatee Refuge in Sarasota County and the 
Cocoa Beach Manatee Refuge in Brevard County. Manatee protection will 
not be diminished under this action because the sites will remain 
protected under State law.

DATES: This rule is effective August 6, 2004.

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

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



    The West Indian manatee (Trichechus manatus) is federally listed as 
an endangered species under the ESA (16 U.S.C. 1531-1544) (32 FR 4001), 
and is further protected as a depleted stock under the MMPA (16 U.S.C. 
1361-1407). The Florida manatee (Trichechus manatus latirostris), a 
subspecies of the West Indian manatee (Domning and Hayek 1986), lives 
in freshwater, brackish, and marine habitats in coastal and inland 
waterways of the southeastern United States. The majority of the 
population can be found in Florida waters throughout the year, and 
nearly all manatees use the waters of peninsular Florida during the 
winter months. During the winter months, most manatees rely on warm 
water from industrial discharges and natural springs for warmth. In 
warmer months, they expand their range and are occasionally seen as far 
north as Rhode Island on the Atlantic Coast and as far west as Texas on 
the Gulf Coast.

Watercraft Collisions

    Collisions with watercraft are the largest cause of human-related 
manatee deaths. Data collected during manatee carcass salvage 
operations conducted in Florida from 1978 to 2002 indicate that a total 
of 1,145 manatees (from a total carcass count of 4,545) are confirmed 
victims of collisions with watercraft. This number may underestimate 
the actual number of watercraft-related mortalities since many of the 

[[Page 40797]]

listed as ``undetermined causes'' show evidence of collisions with 
vessels. Collisions with watercraft comprise approximately 25 percent 
of all manatee mortalities since 1978. Approximately 75 percent of all 
watercraft-related manatee mortality has taken place in 11 Florida 
counties: Brevard, Lee, Collier, Duval, Volusia, Broward, Palm Beach, 
Charlotte, Hillsborough, Citrus, and Sarasota (Florida Fish and 
Wildlife Conservation Commission (FWCC) 2003). Recent years have been 
record years for the number of watercraft-related mortalities. From 
1998 to 2002 (2003 data from the FWCC Florida Marine Research Institute 
are still preliminary), 409 watercraft-related manatee deaths were 
recorded (36 percent of all watercraft-related deaths documented during 
the 1978 to 2002 period) (FWCC 2003).

Manatee Protection Areas

    To help prevent injuries and deaths associated with watercraft, we 
and the State of Florida (State) have designated manatee protection 
areas at sites throughout coastal Florida where conflicts between boats 
and manatees have been well documented and where manatees are known to 
frequently occur. Signs are posted in these areas to inform the boating 
public about restrictions and prohibitions.
    Federal authority to establish protection areas for the Florida 
manatee is provided by the ESA and the MMPA, and is implemented in 50 
CFR 17.100 et seq. We have discretion, by regulation, to establish 
manatee protection areas whenever substantial evidence shows that the 
establishment of such an area is necessary to prevent the taking of one 
or more manatees. Take, as defined by the ESA, means to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt 
to engage in any such conduct. Harm, in the definition of take, means 
an act which kills or injures wildlife (50 CFR Sec.  17.3). Such an act 
may include significant habitat modification or degradation that kills 
or injures wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering. Harass, in the 
definition of take, includes intentional or negligent acts or omissions 
that create the likelihood of injury to wildlife by annoying it to such 
an extent as to significantly disrupt normal behavioral patterns, which 
include, but are not limited to, breeding, feeding, or sheltering (50 
CFR 17.3).
    Take, as defined by the MMPA, means to harass, hunt, capture, or 
kill, or attempt to harass, hunt, capture, or kill any marine mammal. 
Harassment, as defined by the MMPA, means any act of pursuit, torment, 
or annoyance which, (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A]; 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 [Level 
B] (16 U.S.C 1362).
    We may establish two types of manatee protection areas: Manatee 
refuges and manatee sanctuaries. A manatee refuge is defined as an area 
in which we have determined 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 (50 CFR 
17.102). 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 (50 CFR 
17.102). 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 operations (50 CFR 17.102).
    An extensive network of manatee speed zones and sanctuaries has 
been established throughout peninsular Florida by Federal, State, and 
local governments (Service 2001). This existing network supports our 
goal of providing adequate protected areas throughout peninsular 
Florida to satisfy the biological requirements of the species.
    The timing and implementation of State and Federal manatee 
protection area designations have been influenced by decisions and 
settlements in State and Federal court cases and by the respective 
agencies and their ability to effectively post regulatory signage and 
enforce measures in a timely fashion. Pansy Bayou Manatee Refuge was 
identified by both the State and Federal governments as an area in need 
of protection. Neither agency was able to coordinate or communicate its 
intent to designate because such plans were part of confidential legal 
negotiations then in progress. As a result, we designated this site in 
November 2002, and the State subsequently designated this site in 
December 2002. Cocoa Beach Manatee Refuge was designated by the State 
in June 2002 and was subsequently designated by the Service in November 
2002. The Service pursued its designation because the State had not yet 
posted regulatory signage at the site. Because the State has now 
designated and posted both sites as manatee protection areas, and is 
enforcing the protective regulations, and because the Service believes 
that State protection for both sites is now comparable to Federal 
protection, the Service is withdrawing its designations at these two 
sites. We are not withdrawing protections from other remaining Federal 
manatee refuges.

Relationship to Manatee Lawsuit

    In Save the Manatee Club v. Ballard, Civil No. 00-00076 EGS 
(D.D.C., filed January 13, 2000), several organizations and individuals 
filed suit against the Service and the U.S. Army Corps of Engineers 
(Corps) alleging violations of the ESA, MMPA, National Environmental 
Policy Act, and the Administrative Procedure Act. Four groups 
representing development and boating interests intervened. Following 
extensive negotiations, a settlement agreement was approved by the 
court on January 5, 2001. In this settlement agreement, we agreed to 
submit a proposed rule for new refuges and sanctuaries to the Federal 
Register by April 2, 2001, and to submit a final rule by September 28, 
    Subsequent to the Federal settlement, the FWCC voted to settle Save 
the Manatee v. Egbert, Case No. 90-00-400CIV17-WS (N.D. Fla., filed 
January 13, 2000) (the State case). That settlement, which was entered 
into 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. (An advance notice of proposed rulemaking 
had been published in the Federal Register on September 1, 2000 [65 FR 
53222], and six public workshops were held in December 2000, prior to 
approval of the Settlement Agreement.) The proposed rule was published 
in the Federal Register on August 10, 2001 (66 FR 42318). On January 7, 
2002, we published a final rule designating two sites in Brevard 
County, the Barge Canal and Sykes Creek, as Federal manatee refuges (67 
FR 680).
    On July 9, 2002, the United States District Court for the District 
of Columbia ruled that the Federal Government violated the Settlement

[[Page 40798]]

Agreement by failing to designate a sufficient number of refuges and 
sanctuaries throughout peninsular Florida. On August 1, 2002, the Court 
issued a remedial order requiring the Service to publish, by November 
1, 2002, a final rule for new manatee refuges and sanctuaries 
throughout peninsular Florida. On September 20, 2002, we published an 
emergency rule designating seven sites as manatee refuges and 
sanctuaries on Florida's west coast for a period of 120 days (67 FR 
59408). We submitted a final rule to the Federal Register on November 
1, 2002, designating 13 manatee protection areas in Florida, including 
the sites previously designated under the emergency rule. The final 
rule was published on November 8, 2002 (67 FR 68450). We entered into a 
Stipulated Order wherein the Service agreed to submit to the Federal 
Register for publication a proposed rule for the designation of 
additional manatee protection areas. The proposed rule published April 
4, 2003 (68 FR 16602), and on August 6, 2003, we published a final rule 
that designated three additional manatee protection areas (68 FR 
46870). The requirements of the Stipulated Order have been met.

Coordination With State Actions

    The sites that were designated in our final rule on November 8, 
2002 (67 FR 68450), were selected prior to the disclosure of the terms 
of the proposed settlement in the State case. After the terms of the 
State settlement were disclosed, it became apparent that there would be 
overlap between potential State and Federal actions. However, prior to 
a final determination on potential State designations, the Service was 
required by Court Order to move forward with its final rule for the 
designation of additional manatee protection areas throughout 
peninsular Florida. We designated protection areas at these sites in 
accordance with the site selection process and criteria identified in 
our final rule (67 FR 68456) because State protections had not been 
implemented at these sites. Because the State has subsequently 
designated and/or implemented comparable measures for the Pansy Bayou 
Manatee Refuge and the Cocoa Beach Manatee Refuge, the Service believes 
it prudent to withdraw its Federal designation in these areas.

Manatee Refuges De-Designation Final Action

    On November 8, 2002, we designated 13 manatee protection areas in 
Florida, including the Pansy Bayou Manatee Refuge in Sarasota County 
and the Cocoa Beach Manatee Refuge in Brevard County (67 FR 68450). The 
State has now designated both sites as manatee protection areas, has 
posted them, and enforces the protective regulations (68C-22.026, 
F.A.C., and 22.006, F.A.C., respectively). As such, both sites are 
currently protected under both Federal and State authorities. Federal 
and State restrictions are comparable in terms of areal extent (the 
roughly bounded area of the area being protected), duration, and type 
(year-round, slow speed), and each should prevent the taking of one or 
more manatees. In our November 8, 2002, rule (67 FR 68450), we stated 
that ``if the State or counties implement measures at these sites that, 
in our view, provide comparable protection for manatees, we will 
consider withdrawing or modifying established designations through the 
rulemaking process.''
    Because the State has now implemented measures that provide 
comparable protection and we believe that Federal designation is not 
necessary to prevent the taking of manatees, we proposed to withdraw 
our designations for the Pansy Bayou Manatee Refuge and the Cocoa Beach 
Manatee Refuge and defer to the State's regulations governing 
waterborne activities currently in effect in these areas (68C-22.026, 
F.A.C., and 22.006, F.A.C., respectively) on October 22, 2003 (68 FR 
60316). In our proposed rule, we solicited public comments until 
November 21, 2003. The Service received a total of 11 comments on the 
proposed regulation: 9 comments in general support of this initiative 
and 2 opposed. Comments were received from the following: 3 peer 
reviewers; 2 State agencies; 3 conservation organizations; a marine 
industry association; a private business; and one private citizen.
    Because the manatee remains listed under the ESA, and protected by 
the MMPA, we have the authority and responsibility to reinstate Federal 
protective measures should it become necessary. 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 

Pansy Bayou Manatee Refuge

    The federally designated Pansy Bayou Manatee Refuge includes 
approximately 47 hectares (ha) (116.1 acres) in the northern Pansy 
Bayou area between City Island and the John Ringling Parkway Bridge on 
Sarasota Bay in Sarasota County and regulates vessel traffic to slow 
speed year-round (67 FR 68450) (see Pansy Bayou Manatee Refuge map). 
This refuge is located within a State manatee protection area in which 
all vessels are required by State law to operate at slow speed year-
round (68C-22.026(2)(a)(4), F.A.C.).

[[Page 40799]]

Pansy Bayou Manatee Refuge Map

[[Page 40800]]

Cocoa Beach Manatee Refuge

    The federally designated Cocoa Beach Manatee Refuge includes 
approximately 23.9 ha (59.1 acres) in an area adjacent to Municipal 
Park, just west of Cocoa Beach in the Banana River, in Brevard County 
and regulates vessel traffic to slow speed year-round (67 FR 68450) 
(see Cocoa Beach Manatee Refuge map). This refuge is located within a 
State manatee protection area in which all vessels are required by 
State law to operate at slow speed year-round (68C-22.006(2)(d)(16), 

[[Page 40801]]

Cocoa Beach Manatee Refuge Map


[[Page 40802]]

    Summary of Comments Received on Our October 22, 2003, Proposed Rule 
(68 FR 60316):
    Comment 1: Several commentors asked for clarification on what 
constitutes ``comparable'' protection.
    Response: At 67 FR 6845 (November 8, 2002), we set out a number of 
factors that we would consider in determining when to withdraw or 
revise our designations. Specifically, we stated that we may withdraw 
or revise our designations if, in our view, State or local 
government(s) provide a comparable level of protection. We stated that 
we would rely upon the best professional judgment of our biologists to 
determine whether alternative State and local measures are comparable 
to ours. We acknowledged, and continue to acknowledge, that there may 
be more than one way to provide adequate manatee protection at any 
given location. In making our determination, we stated that we would 
consider factors such as areal extent of the measures, duration of the 
measures, and types of restrictions (e.g., no entry, motorboat 
prohibited, idle speed, slow speed, etc.). We stated that determination 
would be based on our judgment of whether a State and local management 
plan provides comparable protection by presenting take to the same or 
greater extent as our actions. After evaluating these factors, we have 
determined that the State's management plan at the Pansy Bayou and 
Cocoa Beach manatee refuges provide a comparable level of protection.
    Comment 2: Several peer reviewers and commentors commented on 
whether State protections were ``identical.''
    Response: We do not believe that State or local regulatory 
mechanisms must be identical to be comparable in effect. Federal and 
State restrictions are comparable in terms of areal extent, duration, 
and type (year-round slow speed). It is true that State regulations 
allow exemptions, by permit, that the Federal regulations do not. 
However, the State will not authorize take of manatees, and permittees 
will continue to be subject to applicable Federal, State, and local 
laws and regulations, including the ESA and the MMPA. Furthermore, 
State regulations require immediate reconsideration of the permit if 
the permittee is in violation of permit terms. The factors that we set 
out for determining when a Federal designation may be withdrawn or 
revised require a determination that replacement measures provide a 
comparable level of protection which will prevent the taking of one or 
more manatees.
    Comment 3: One peer reviewer and several commentors asked whether 
the State's variances and exemptions would compromise manatee safety or 
decrease protection of manatees at Pansy Bayou Manatee Refuge and Cocoa 
Beach Manatee Refuge.
    Response: We believe that the variance and exemption regulations 
will not compromise manatee safety nor decrease manatee protection at 
these two specific sites. The State will not authorize take of 
manatees, and permittees will continue to be subject to applicable 
Federal, State and local laws and regulations, including the ESA and 
the MMPA. State regulations require immediate reconsideration of the 
permit if the permittee is in violation of permit terms.
    Comment 4: One peer reviewer and several commentors asked for 
better clarification and explanation of what specific circumstances 
make it appropriate to withdraw protection in these refuges, but not 
    Response: In our response to comment 1, we set out the factors that 
we would consider in determining when it may be appropriate to withdraw 
or revise our designations. After considering these factors, we have 
determined that comparable protective measures now exist at the Pansy 
Bayou and Cocoa Beach manatee refuges, and Federal designation is 
unnecessary to prevent the taking of manatees. At this time, we are not 
of the opinion that comparable protective measures exist at other 
Federally designated manatee protection areas.
    Comment 5: One peer reviewer noted that variances and exemptions 
cover more than just commercial fishermen, crabbers, and fishing 
    Response: We concur. At 68C-22.003, F.A.C., the State allows 
variances and exemptions for commercial fishing and professional 
guiding, testing of motors or vessels by manufacturers, resident 
access, boat access, boat races, and general activities. We believe the 
State has implemented measures that are comparable to ours, and Federal 
protection is not necessary to prevent the taking of manatees. The 
State will not authorize take of manatees; State regulations require 
immediate reconsideration if take of a single manatee occurs, and 
require revocation of the permit if the permittee is in violation of 
permit terms.
    Comment 6: One commentor encouraged the Service to assert its right 
to reinstate these Federal protected areas if State regulations prove 
insufficient to insure manatee survival and recovery.
    Response: Within the ``Coordination with State Actions'' section of 
this rule and the proposed rule (68 FR 60316), we have stated that we 
have the authority and responsibility to reinstate Federal protective 
measures if necessary. This authority is derived from the ESA, the 
MMPA, and 50 CFR 17.
    Comment 7: One commentor stated that the determination that 
protections are comparable is complex and requires continued 
involvement of the Service.
    Response: We have concluded that State protection is comparable, 
and we concur that manatee protection requires the continued 
involvement of the Service.
    Comment 8: One commentor stated that removing Federal protections 
in these two areas should not open the door to further rollbacks of 
Federal manatee protections in Florida.
    Response: We will continue to take an active role in the management 
of the Florida manatee by assessing the adequacy of manatee protection 
measures. We may find it necessary to designate, re-designate, or de-
designate sites in the State as necessary. We will conduct our analysis 
in a way that furthers the recovery of the Florida manatee while 
providing the most efficient use of limited resources.
    Comment 9: One commentor stated that it is evident that the Federal 
Government is better suited to provide protection and has the greater 
authority and resources to do so. This is especially true, the 
commentor stated, as the Federal Government, unlike the State, has no 
economic interest in accommodating human users of the resource.
    Response: We believe that the protection of the Florida manatee 
requires the active participation of Federal, State, and local 
government agencies. 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. Additionally, we will 
continue to take an active role in manatee protection and will exercise 
our authority, if necessary, to designate, re-designate, or de-
designate sites in the State.
    Comment 10: One commentor asserted that the Florida manatee is 
almost exclusively found within the internal waters of Florida and 
therefore is a natural resource of Florida and is entitled to 
protection from the State.
    Response: We concur that the State should take an active role in 
the protection of its natural resources. We acknowledge that a State 
and Federal

[[Page 40803]]

cooperative partnership is an important component for the protection of 
the Florida manatee. Insofar as this comment may have been intended to 
imply that Federal protection should not infringe upon State efforts, 
we believe that the most effective means of protecting the Florida 
manatee is to have a partnership with our State and local partners. As 
State law requires State protective measures, Federal law under the 
MMPA and ESA requires us to actively participate in the protection of 
the Florida manatee.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this 
final rule is not a significant regulatory action. The Office of 
Management and Budget makes the final determination under Executive 
Order 12866.
    a. This final 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 removal of Federal designation of these two 
manatee refuges in Sarasota and Brevard Counties in the State of 
Florida. We do not expect any significant effects because comparable 
State protection would remain in place following the removal of Federal 
    Activities affected by the designation of manatee protection areas 
include waterborne activities conducted by recreational boaters, 
commercial charter boats, and commercial fishermen (including 
transiting, cruising, water skiing, and fishing activities). Federal 
measures in place at the Pansy Bayou Manatee Refuge and the Cocoa Beach 
Manatee Refuge require boat operators to operate at slow speeds 
throughout the year. State measures also require boat operators, 
depending on whether or not the operator has a variance or exemption 
and the terms of the variance or exemption, to operate at slow speed. 
In removing Federal protection, boat operator behavior in these areas 
will likely remain unchanged. Therefore, these activities will not be 
affected by this rule, and no substantive economic impacts should 
    b. This final rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
This final 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. In 
previous rule-makings, we stated that ``[i]f comparable or similar 
protections are put in place in the future, we will consider removing 
those areas from Federal protection.'' The removal of Federal 
protection follows the implementation of comparable State protection.
    c. This final rule will not materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    d. This final rule will not raise novel legal or policy issues.

Regulatory Flexibility Act

    We 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. Sec.  601 et seq.) for the reasons 
cited below. A Regulatory Flexibility Analysis is not required. 
Accordingly, a Small Entity Compliance Guide is not required.
    The characteristics of the two areas (Pansy Bayou and Cocoa Beach) 
affected by this rule are described below. The economic effects 
considered include the direct effects, primarily on homeowners, and the 
indirect effects on businesses in the removal of speed zones.
Direct Economic Effects
    Pansy Bayou Manatee Refuge. The Pansy Bayou Manatee Refuge is 
located on the northwestern shore of Roberts Bay in Sarasota County, 
Florida. Adjoining land uses are primarily residential. Approximately 
50 to 75 homes are in the vicinity of the Refuge, and most of these 
residences have private docks. The city/county owns a parcel in the 
vicinity of the Refuge that is leased to a marine lab, sailing club, 
and ski club. Principal use of Refuge waters is for transit to open 
waters (i.e., traveling to and from docks out to the adjoining 
Intracoastal Waterway) and for waterskiing. A small number of 
commercial fishermen may also use the site for crabbing, and some 
fishing guides may transit the site when traveling to and from fishing 
    The removal of the Federal ``slow speed'' designation will not 
affect residential activities. Users will continue to be restricted in 
their operations by the State ``slow speed'' restrictions currently in 
place, and State exemptions for fishermen will remain in place. 
Residents in private homes are able to maintain their current 
actitivies and should experience no change in use of this site.
    Cocoa Beach Manatee Refuge. The Cocoa Beach Manatee Refuge is 
located along the eastern shore of the Banana River in Brevard County, 
Florida. The refuge is surrounded by water on all sides, and the 
nearest adjoining land is occupied by a municipal golf course with no 
marine facilities. Immediately to the north and south of the Cocoa 
Beach site lie residential areas composed of approximately 500 single-
family houses. Approximately one-half of the houses have boat docks. 
Residents must pass through Refuge waters in order to reach more open 
waters. Refuge waters are also used by commercial fishing guides to 
reach more open waters and by a small number of commercial fishermen 
for crabbing, which for the purposes of this analysis are considered to 
be small businesses.
    The removal of the Federal ``slow speed'' designation will not 
affect direct use activities because the State is implementing an 
identical speed limit in its place. Resident boaters will be able to 
continue passing through Refuge waters at the currently posted speed. 
The conditions placed upon the issuance of a permit and the terms under 
which it may be revoked will not likely increase the take of manatees.
Indirect Economic Effects
    Since this rule deals solely with speed restrictions on water, it 
is reasonable to look at the effect of speed restrictions on the demand 
for boats in the affected areas. In a study by Bendle and Bell (1995), 
four economic models were estimated to determine the effect of speed 
zones in a county on the demand for boats. In each of the models the 
coefficient on the speed zones was not statistically different from 
zero. This indicates that the presence or absence of speed zones does 
not affect the demand for boats in Florida counties. In a study by 
Parker (1989), ``The bulk of boaters (91%) supported protecting the 
manatee even if it meant reducing the speed allowed on some 
waterways.'' These studies indicate that it is valid to say that a 
large majority of Florida residents support manatee protection and the 
presence or absence of speed zones does not influence the demand for 
boats. As a result, it then seems to follow that most Florida residents 
will not change their spending patterns because of the presence or 
absence of speed zones, and any indirect economic effects on small 
businesses will not be significant.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. Sec.  804(2), the 
Small Business

[[Page 40804]]

Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. This rule to remove Federal designation from two manatee 
protection areas is expected to have an insignificant economic benefit 
for some small businesses in the two affected counties. However, the 
substitution of State speed zones for Federal speed zones may very well 
negate any economic changes resulting from this rule. Without changes 
in recreational use patterns, the economic effects will be 
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. It is unlikely that there are 
unforeseen changes in costs or prices for consumers stemming from this 
rule. However, the substitution of State speed zones for Federal ones 
will not affect the vast majority of boaters who use the two former 
Federal manatee protection areas.
    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. Any 
economic effects associated with this rule are believed to be minor and 
will not appreciably change competition, employment, investment, or 
productivity in the affected counties. The commercial enterprises who 
qualify for a State exemption may receive some benefit from the reduced 
amount of travel time to business sites; however, the Service does not 
believe this will be economically significant.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. Sec.  
1501 et seq.):
    a. This final rule will not ``significantly or uniquely'' affect 
small governments. A Small Government Agency Plan is not required. 
Removal of Federal Protection Status from manatee refuges imposes no 
new obligations on State or local governments.
    b. This final 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 final rule does not 
have significant takings implications. A takings implication assessment 
is not required.


    In accordance with Executive Order 13132, this final rule does not 
have significant Federalism effects. A Federalism assessment is not 
required. This final 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. We coordinated with the State of Florida 
to the extent possible on the development of this rule.

Civil Justice Reform

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

Paperwork Reduction Act

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

National Environmental Policy Act

    We have analyzed this final rule in accordance with the criteria of 
the National Environmental Policy Act (NEPA) of 1969, Pub. L. 91-190, 
83 Stat. 852 (codified in current form at 42 U.S.C. Sec. Sec.  4321 et 
seq.) and have determined that this action is categorically excluded 
from review under NEPA (516 DM 2, Appendix 1.10). An environmental 
assessment was prepared for the establishment of all 13 manatee refuges 
designated in November 2002, including these refuges. Since the first 
action was not implemented, Federal signage has not yet been installed 
for these two refuges, and removal of Federal refuge designation will 
leave comparable State requirements in place, little or no change in 
the environment has occurred that will be reversed as a result of the 
removal of Federal refuge designation. Thus, no environmental 
assessment or environmental impact statement for the removal of Federal 
refuge designation is required.

Government-to-Government Relationship With Tribes

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

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Because comparable 
State requirements will remain in effect, this rule is not anticipated 
to result in any change in activities and, therefore, it is not 
expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

References Cited

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


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


    The authority to establish manatee protection areas is provided by 
the Endangered Species Act (ESA) of 1973, Pub. L. 93-205, 87 Stat. 884 
(codified as amended at 16 U.S.C. 1531-37, 1537a, 1538-44) and the 
Marine Mammal Protection Act (MMPA) of 1972, Pub. L. 92-522, 87 Stat. 
1027 (codified as amended at 16 U.S.C. 1361-1407).

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:

[[Page 40805]]

    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.

Sec.  17.108  [Amended]

2. Amend Sec.  17.108 as follows:

a. Remove paragraphs (c)(5), including the map ``Pansy Bayou Manatee 
Refuge,'' and (c)(11), including the map ``Cocoa Beach Manatee 
b. Redesignate paragraphs (c)(6) through (c)(10) as paragraphs (c)(5) 
through (c)(9), respectively.
c. Redesignate paragraphs (c)(12) through (c)(15) as paragraphs (c)(10) 
through (c)(13), respectively.
d. Amend new paragraphs (c)(10)(i)-(ix) by removing the words 
``paragraph (12)(x)'' each time they appear and adding the words 
``paragraph (10)(x)'' in their place.
e. Amend new paragraphs (c)(11)(i)-(iv) by removing the words 
``paragraph (13)(v)'' each time they appear and adding the words 
``paragraph (11)(v)'' in their place.
f. Amend new paragraphs (c)(12)(i)-(xi) by removing the words 
``paragraph (14)(xii)'' each time they appear and adding the words 
``paragraph (12)(xii)'' in their place.

    Dated: June 16, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-15273 Filed 7-6-04; 8:45 am]