FR Doc 02-28607[Federal Register: November 14, 2002 (Volume 67, Number 220)]
[Proposed Rules]               
[Page 69077-69104]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no02-14]                         

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Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 18

Florida Manatees; Incidental Take During Specified Activities; Proposed 
Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AH86

 
Florida Manatees; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the Fish and Wildlife Service, are proposing regulations 
that would authorize for the next five years the incidental, 
unintentional take of small numbers of Florida manatees (Trichechus 
manatus latirostris) resulting from government activities related to 
watercraft and watercraft access facilities within three regions of 
Florida.
    Under the provisions of the Marine Mammal Protection Act (MMPA), 
the Secretary of the Department of the Interior may authorize the 
incidental taking of small numbers of marine mammals in a specified 
geographic area if the Secretary finds, based on the best scientific 
evidence available, that the total taking for the authorized period 
will have no more than a negligible impact on the species or stock. If 
this finding is made, specific regulations will be established for the 
activities that describe permissible methods of taking; means of 
effecting the least practicable adverse impact on the species and its 
habitat; and requirements for monitoring and reporting. If the 
Secretary cannot make a finding that the total taking will have a 
negligible impact on the species or stock, the Secretary must publish 
the negative finding in the Federal Register along with the basis for 
such determination.
    We have defined the specified geographic area for this proposed 
rule to be the species' range within the State of Florida. Long-term 
studies suggest four regional populations of manatees in Florida--
Northwest, Upper St. Johns River (from Palatka south), Atlantic 
(including the St. Johns River north of Palatka), and Southwest. 
Through this rule, we have defined these populations as stocks. We are 
proposing a finding that the total expected takings of Florida manatee 
resulting from government activities related to watercraft and 
watercraft access facilities would have a negligible impact in the 
Upper St. Johns River and Northwest stocks and a negligible impact with 
the implementation of additional mitigating measures on the Atlantic 
Stock. For the Southwest Stock, the best available information 
indicates that these activities would have more than a negligible 
impact on the Stock and, therefore, we are not proposing to authorize 
incidental take for this Stock (i.e., a negative finding). We also 
announce the availability of a draft environmental impact statement for 
this action.

DATES: We will consider comments on both the proposed rule and the 
draft environmental impact statement that are received by January 13, 
2003.
    We will hold six public hearings as follows: on December 2, 2002, 
in Ft. Myers; on December 3, 2002, in Tampa; on December 4, 2002, in 
Melbourne; on December 5, 2002, in Daytona Beach; on December 9, 2002, 
in Palatka; and on December 10, 2002, in Gainesville. All hearings will 
run from 6 p.m. to 9 p.m. We will hold additional public hearings if 
requested.
    Persons needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Chuck Underwood of the 
Jacksonville Field Office (see ADDRESSES section) as soon as possible. 
In order to allow sufficient time to process requests, please call no 
later than one week before the hearing.

ADDRESSES: If you wish to comment, you may submit your comments by any 
one of the following methods:
    1. You may submit written comments and information to the Field 
Supervisor, Jacksonville Field Office, U.S. Fish and Wildlife Service, 
6620 Southpoint Drive South, Suite 310, Jacksonville, Florida 32216.
    2. You may hand deliver written comments to our Jacksonville Field 
Office, at the above address, or fax your comments to 904/232-2404.
    3. You may send comments by electronic mail (e-mail) to 
manatee@fws.gov. For directions on how to submit electronic comment 
files, see the ``Public Comments Solicited'' section.
    We request that you identify whether you are commenting on the 
proposed rule or draft environmental impact statement. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this proposed rule, will be available for public 
inspection, by appointment, during normal business hours from 8 a.m. to 
4:30 p.m. Monday through Friday, at the above address. You may obtain 
copies of the draft environmental impact statement from the above 
address or by calling 904/232-2580, or from our Web site at http://
northflorida.fws.gov. Information regarding this proposal is available 
in alternative formats upon request.
    The public hearings will be held at the following locations:
    1. Harborside Convention Hall, 1375 Monroe St., Ft. Myers;
    2. Holiday Inn & Conference Center, 4732 N. Dale Mabry Hwy, Tampa;
    3. Radisson Hotel & Conference Center, 3101 N. Highway A1A, 
Melbourne;
    4. Daytona Beach Resort & Conference Center, 2700 N. Atlantic Ave., 
Daytona Beach;
    5. Holiday Inn, 201 N. 1st St., Palatka; and,
    6. Doubletree University Florida Hotel & Conference Center, 1714 SW 
34th St., Gainesville.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Assistant Field 
Supervisor (see ADDRESSES section), telephone 904/232-2580; or visit 
our Web site at http://northflorida.fws.gov.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. 1361-
1407) 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 the 
MMPA and its implementing regulations (50 CFR part 18) means ``to 
harass, hunt, capture, collect, or kill, or attempt to harass, hunt, 
capture, collect, or kill any marine mammal, including, without 
limitation, any of the following--the collection of dead animals or 
parts thereof; the restraint or detention of a marine mammal, no matter 
how temporary; tagging a marine mammal; or the negligent or intentional 
operation of an aircraft or vessel, or the doing of any other negligent 
or intentional act which results in the disturbing or molesting of a 
marine mammal.''
    ``Harassment'' is defined under the MMPA as, ``any act of pursuit, 
torment, or annoyance which--(i) has the potential to injure a marine 
mammal or marine mammal stock in the wild; or (ii) has the potential to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering.''
    The prohibitions on take apply to all persons, including Federal, 
State, and local government agencies with the

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exception of humane taking (including euthanasia) by government 
officials while engaged in their official duties, if such taking is (1) 
for the protection or welfare of a marine mammal; (2) for the 
protection of the public health and welfare; or (3) the non-lethal 
removal of nuisance animals. When feasible, steps designed to ensure 
return of such animals to their natural habitat, if not killed in the 
course of such taking, must be implemented (16 U.S.C. 1379(h)).
    Section 101(a)(5)(A) of the MMPA allows the Secretary of the 
Department of the Interior, through the Director of the Fish and 
Wildlife Service (Service), upon request, to authorize by specific 
regulation the incidental, unintentional take of a small number of 
marine mammals by U.S. citizens engaged in specific identified 
activities (other than commercial fishing) within specific geographic 
areas. This is the mechanism by which incidental, but not intentional, 
take of small numbers of marine mammals may be authorized in accordance 
with Federal law for activities other than commercial fishing if 
certain findings are made and regulations are enacted pursuant to 50 
CFR 18.27. The Director must find that the total of such taking during 
the specified time period (which cannot be more than five consecutive 
years) will have no more than a negligible impact on the species or 
stock and will not have an unmitigable impact on the availability of 
such species or stock for subsistence uses. The subsistence provision 
is not applicable to Florida manatees.
    The regulations implementing the MMPA define ``negligible impact'' 
as, ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival'' (50 CFR 18.27(c)). If such findings are made, 
we would then establish specific regulations identifying permissible 
methods of taking by such activity, means of effecting the least 
practicable adverse impact on the species or stock and its habitat, and 
requirements for monitoring and reporting such taking. If a finding 
cannot be made that the total taking will have a negligible impact on 
the species or stock, the ``negative finding'' and the basis for 
denying the request for the incidental take must be published in the 
Federal Register (50 CFR 18.27(d)(4)).
    Following issuance of incidental take regulations, U.S. citizens 
(including government agencies) who engage in the specified activities 
in the specified area could apply for a Letter of Authorization (LOA), 
which, if granted, would authorize incidental take associated with the 
applicant's activities. In return for committing to specific measures 
that minimize the applicant's impact on the species or stock and ensure 
that the total taking remains at the negligible level, the applicant 
receives authorization for any remaining take that occurs and that 
would otherwise be unlawful under the MMPA. General procedures for 
obtaining an LOA are described at 50 CFR 18.27(f).

Summary of Request

    The Florida Manatee Recovery Plan, Third Revision (U.S. Fish and 
Wildlife Service 2001), states that the largest known human-related 
cause of manatee deaths is collisions with watercraft. Between 1976 and 
2000, the total number of carcasses (i.e., deaths due to all causes) 
collected has increased at a rate of 6.0 percent per year. Between 1976 
and 2002 deaths attributed to watercraft increased by 7.3 percent per 
year (Florida Marine Research Institute 2002). In 2000 and 2001, 
watercraft-related deaths accounted for at least 29 percent and 25 
percent, respectively, of the total number of known manatee deaths. 
During the past five years (1997 to 2001) watercraft-related deaths 
have been the highest on record ranging from 52 to 82 per year.
    In the State of Florida, government agencies (including Federal, 
State, and local agencies) engage in a variety of activities related to 
watercraft that may affect manatees, positively or negatively. Many of 
these activities relate to the use and regulation of watercraft 
operated in Florida waters accessible to manatees, including--(1) 
regulating watercraft operation (e.g., regulation of marine events); 
(2) authorizing construction of watercraft access facilities (marinas, 
docks, boat ramps, etc.); (3) funding construction of watercraft access 
facilities; (4) operating watercraft access facilities; and (5) 
operating watercraft. To date, there are no regulations under the MMPA 
to authorize the incidental, unintentional death, injury, or harassment 
of manatees caused by these otherwise legal activities.
    We, the U.S. Fish and Wildlife Service, engage in, or have the 
authority to engage in, each of the above five categories of 
activities; therefore, our activities could result in the incidental, 
unintentional take of manatees. As such, we initiated the development 
of incidental take regulations for our own activities related to 
watercraft in Florida. Other Federal agencies also engage in some or 
all of these activities, as do a variety of State and local agencies. 
We have encouraged other Federal and State agencies involved in these 
same types of activities to join us in our rulemaking process as a 
means to coordinate Federal, State, and local measures that would 
reduce the taking of manatees by watercraft; develop additional 
protective measures; and insulate partner agencies against liability 
for take through the authorization process. The U.S. Coast Guard, 
National Park Service, and U.S. Army Corps of Engineers have agreed to 
join us in this rulemaking process.

Specified Activities

    Only activities of government agencies related to watercraft and 
watercraft access facilities are considered within the scope of this 
rule. While it is our view that the operation of watercraft is the most 
important factor influencing watercraft/manatee interactions (see 
``Watercraft-Related Impacts to the Florida Manatee'' section below), 
virtually all aspects of watercraft operation and access are regulated 
by Federal, State, and/or local government agencies. As such, those 
government agencies who hold a Letter of Authorization will have 
protection from liability for take associated with these activities. 
Liability protection afforded under these regulations would also extend 
to individual non-governmental operators of watercraft and watercraft 
access facilities who are authorized or regulated by a Federal, State, 
or local government agency holding a Letter of Authorization, provided 
(1) the government authorization or regulation is implemented in 
accordance with the Letter of Authorization; and (2) the individual is 
in compliance with the terms of the agency authorization or regulation. 
For example, by issuing a Letter of Authorization to an agency that 
permits the construction of watercraft access facilities, entities 
receiving such permits would be covered under the agency's Letter of 
Authorization.
    The following five categories of activities were considered in the 
scope of this rulemaking evaluation as watercraft-related activities of 
government agencies that could cause the incidental take of manatees, 
including mortality, injury, and harassment. Activities of government 
agencies that have the potential to reduce watercraft-related take of 
manatees are described below under ``Mitigating Measures.''
    1. Regulating the operation of watercraft on Florida waters--This 
category of activity includes government programs responsible for the 
establishment of watercraft speed zones and restricted access areas. 
Local, State,

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and Federal agencies establish speed zones and restricted access areas 
in order to reduce watercraft-related take of manatees by slowing 
watercraft speeds or prohibiting waterborne activities in areas of 
importance to manatees such as aggregation areas, travel corridors, 
feeding areas, resting areas, calving areas, and other areas where 
manatees occur. The establishment of such areas does not cause or 
contribute to take. However, to the extent that agencies exempt, 
except, permit, or otherwise allow prohibited activities to occur in 
such areas, such authorization may cause or contribute to the 
incidental take of manatees.
    This category also includes government programs (e.g., State/local 
registration, U.S. Coast Guard vessel documentation) that register 
watercraft for operation in waters inhabited by manatees. This activity 
may cause or contribute to incidental take of manatees to the extent 
that watercraft which are not properly registered are not authorized to 
operate on Florida waters. Finally, this category includes the 
authorization and regulation of marine events (e.g., high-speed races, 
parades, etc.) in Florida waters inhabited by manatees. Such events, 
particularly events that involve high-speed watercraft operation, have 
the potential to cause or contribute to the incidental take of 
manatees.
    2. Authorizing construction of watercraft access facilities (e.g., 
boat ramps, docks, and marinas) that provide watercraft access to 
waters inhabited by manatees--This category of activity includes 
government programs that regulate the location and construction of 
watercraft access facilities including boat ramps, marinas, private and 
public docks, and other such structures that provide watercraft access 
to waters inhabited by manatees. Construction of watercraft access 
facilities is authorized by local, State, and Federal agencies. At the 
local level, construction of watercraft access facilities is regulated 
primarily through zoning ordinances. Several Florida counties have 
adopted Manatee Protection Plans (MPP) which include facility siting 
plans. Facility siting plans generally identify areas within a county 
where construction of additional watercraft access facilities are 
encouraged or discouraged, or define criteria for assessing the 
suitability of sites for construction of new facilities. County MPPs 
must be approved by the Florida Fish and Wildlife Conservation 
Commission (FWC). Upon approval, the facility siting plans must be 
incorporated into the County's comprehensive plan.
    At the State level, construction of watercraft access facilities is 
regulated by the Florida Department of Environmental Protection and the 
water management districts pursuant to the State's Environmental 
Resource Permit Procedures (62-343 Florida Administrative Code 
[F.A.C.]). Permit applications received by the State regulatory 
agencies are also reviewed by the FWC, Bureau of Protected Species 
Management (BPSM), which uses the FWC Manatee Environmental Resource 
Permit Coordination Guidance, and provides an environmental assessment 
of potential adverse impacts to manatees from regulated activities.
    At the Federal level, construction of watercraft access facilities 
is regulated by the Army Corps of Engineers (Corps) through section 404 
of the Clean Water Act of 1972 and section 10 of the Rivers and Harbors 
Act of 1899. Section 7 of the Endangered Species Act (ESA) of 1973 (16 
U.S.C. 1531 et seq.), as amended, requires the Corps to assess the 
effects of any facility under their review on federally listed species 
and consult with us or the National Marine Fisheries Service (NOAA-
Fisheries), as appropriate, if they determine that the facility in 
question may affect listed species or their designated critical 
habitat. The Corps utilizes a decision-making key developed in 
cooperation with us to assist in determining whether a proposed project 
may affect manatees. If potential adverse effects to manatees or 
manatee habitat are identified, the permit can be specifically 
conditioned to avoid the adverse impacts, or where appropriate, denied. 
Typical permit conditions include limitations on the number of slips, 
and avoidance or minimization of impacts to sea grasses. Additionally, 
standard manatee construction conditions have been developed that are 
utilized by the Corps as well as State regulatory agencies to minimize 
the effects of watercraft access facilities on manatees and manatee 
habitat.
    3. Funding construction of watercraft access facilities that 
provides watercraft access to waters inhabited by manatees--In addition 
to authorizing construction of watercraft access facilities, many 
local, State, and Federal agencies fund their construction. The effects 
of funding construction of watercraft access facilities are the same as 
those described for permitting construction of watercraft access 
facilities.
    4. Operating facilities that provide watercraft access to waters 
inhabited by manatees--Many government agencies operate watercraft 
access facilities. Operation includes any act of owning, maintaining, 
or directly or indirectly controlling who has access to waters 
inhabited by manatees through use of any watercraft access facility.
    5. Operating government-owned watercraft in Florida waters 
accessible to manatees for official government business other than that 
covered under section 109(h) of the MMPA--Many government agencies own 
and operate watercraft. Incidental take directly related to the 
protection of manatees is covered under the exemption provided under 
section 109(h) of the MMPA. Other government watercraft activities 
require authorization under the MMPA like that of private watercraft 
operators.
    Other human activities cause the incidental take of manatees 
including, but not limited to, the operation of locks and water control 
structures, port operations, naval and other military activities, the 
operation of industrial warm-water outfalls, commercial and 
recreational fisheries, implementation of projects that affect the 
quality and quantity of water flow from warm water springs, and the 
implementation of water manipulation projects that affect the 
distribution, timing, quality, and quantity of waterflow in manatee 
habitat. These activities are outside of the scope considered in this 
evaluation, but may be subject to the future publication of rules.

Specified Geographic Region

    While the summer range of the Florida manatee extends beyond 
Florida, the entire natural winter range is within Florida where the 
majority of watercraft-related incidental take occurs. The effective 
control of watercraft-related incidental take depends on actions of the 
operators of watercraft and government agencies in Florida. Therefore, 
the specific geographic area considered for coverage by this regulation 
was limited to those waters within the State of Florida that are 
accessible to manatees. Separate regulations for government activities 
in other geographic areas outside of the State of Florida may be 
considered under subsequent rulemakings, if requested.
    Long-term studies suggest four regional populations of manatees in 
Florida--(a) the Northwest Region, consisting of the counties along the 
Gulf of Mexico from Escambia County east and south to Hernando, 
Lafayette, and Gilchrist counties, and Marion County adjacent to the 
Withlacoochee River; (b) the Upper St. Johns River Region, consisting 
of Putnam County from Palatka south, Volusia, Flagler, and Marion 
counties adjacent to the St. Johns River or its tributaries, and Lake

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and Seminole counties; (c) the Atlantic Region, consisting of counties 
along the Atlantic coast from Nassau County south to Miami-Dade County, 
the portion of Monroe County adjacent to the Florida Bay and the 
Florida Keys, Okeechobee County, and counties along the lower portion 
of the St. Johns River north of Palatka, which includes Putnam, St. 
Johns, Clay, and Duval counties; and (d) the Southwest Region, 
consisting of the counties along the Gulf of Mexico from Pasco County 
south to Whitewater Bay in Monroe County and DeSoto, Glades, and Hendry 
counties.
    These divisions are based primarily on documented manatee use of 
wintering sites and from radio-tracking studies of individuals' 
movements. Radio-tracking studies (Bengtson 1981) and other information 
(U.S. Fish and Wildlife Service 2001, Marine Mammal Commission [MMC] 
1988) suggest that most manatees wintering at Blue Spring tend to 
remain in the area identified as the Upper St. Johns River Region. The 
manatees of this region comprise approximately four percent of the 
total Florida manatee population. The lower St. Johns River, the 
Atlantic coast, and the Florida Keys are considered to represent the 
Atlantic Region, based on the results of long-term radio tracking and 
photo-identification studies (Beck and Reid 1995, Reid et al. 1995, 
Deutsch et al. 1998). The manatees of this region comprise 
approximately 42 percent of the total Florida manatee population.
    On the west coast, Rathbun et al. (1995) reported that, of 269 
recognizable manatees identified at the Kings Bay and Homosassa River 
warm-water refuges in northwest Florida between 1978 and 1991, 93 
percent of the females and 87 percent of the males returned to the same 
refuge each year. Radio-tracking results suggest that many animals 
wintering at Crystal River disperse north in warm seasons to rivers 
along the Big Bend coast, particularly the Suwannee River (Rathbun et 
al. 1990). The manatees of this region comprise approximately 12 
percent of the total Florida manatee population. The existence of more 
or less distinct subgroups in the southwestern area of Florida (i.e., 
from Tampa Bay south) is not clear. It is possible that manatees using 
warm-water refuges in Tampa Bay, the Caloosahatchee River, and Collier 
County may be somewhat discrete groups; however, the best available 
data before us and the Florida Manatee Recovery Team indicated that we 
should identify them as one group. The manatees of this region comprise 
approximately 42 percent of the total Florida manatee population.
    Although some movement occurs among regional populations, 
researchers found that analysis of manatee status on a regional level 
provided significant insights into important factors related to manatee 
recovery, such as winter aggregation areas, manatee movement patterns, 
and human interactions (U.S. Fish and Wildlife Service 2001). This led 
the Florida Manatee Recovery Team and the Service to establish 
objective and measurable recovery criteria for the four regions based 
upon demographic benchmarks for certain aspects of manatee life 
history--adult survival, reproduction, and population growth-- in the 
Florida Manatee Recovery Plan.
    Based on available information, we have concluded that these 
regions meet the criteria for classification as separate stocks under 
the MMPA. The guidelines for assessing marine mammal stocks (Barlow et 
al. 1995) advise a risk-averse strategy when determining stock 
structure. The guidelines advise that this requires starting with a 
definition of stocks based on the smallest groupings that are 
biologically reasonable and are practical from a management 
perspective. Biological evidence indicates considerable demographic 
differences among the four regions. For example, based on recent 
analysis (Langtimm et al. 2002) estimates of adult survival rates vary 
among regions; ranging from a high of 96.2 (95 percent confidence 
interval (CI) that ranges from 95.3 to 97.2) in the Northwest Region to 
a low of 90.6 (95 percent CI 86.7 to 94.4) in the Southwest Region. 
Adult survival in the Atlantic Region is estimated to be 94.3 percent 
(95 percent CI 92.3 to 96.2), and adult survival in the Upper St. Johns 
River Region is 96.1 (95 percent CI 90.0 to 98.5). Similarly, estimates 
of population growth rates vary among regions. According to a recent 
analysis by Runge et al. (2002 unpubl. analysis), the growth rate is 
estimated to be highest in the Upper St. Johns River Region at 6.1 
percent per year (95 percent CI 1.7 to 8.7), followed by the Northwest 
Region (5.0 percent growth per year; 95 percent CI 3.2 to 6.8), and the 
Atlantic Region (3.2 percent growth per year; 95 percent CI 0.3 to 
5.7). Growth rate has not been calculated for the Southwest Region, 
although it is thought that the population is declining or is, at best, 
stable.
    As noted above, available evidence indicates that there is 
relatively little movement of manatees among the regions. The highest 
dispersal rate assumed by the FWC for the purposes of their recent 
population viability analysis (PVA) (see ``The Status of the Florida 
Manatee'' section) was two percent per year between the Upper St. Johns 
River Region and the Atlantic Region (Florida Marine Research Institute 
2002). The FWC assumed that dispersal rates among the other regions did 
not exceed 0.5 percent per year. This indicates that dispersal from 
regions in which the population is likely growing (e.g., the Northwest 
Region) is likely not sufficient to compensate for high levels of 
human-related mortality in other regions (e.g., the Southwest Region). 
The stock assessment guidelines warn that managing areas with 
differential levels of take as a single stock can lead to depletion 
(Wade and Angliss 1997).
    The threats facing manatees also vary among regions. For example, 
the number of watercraft-related deaths has been reported (U.S. Fish 
and Wildlife Service 2001) as increasing at a rate of 10.8 percent per 
year in the Northwest Region between 1980 and 1999; although the number 
of manatees killed by watercraft in this region over that period was 
low (N=32). Conversely, watercraft-related deaths in the Southwest 
Region increased at a rate of 7.1 percent per year during the same 
period, and a far greater number of manatees were killed (N=331). The 
disproportionate amounts of incidental take in the Southwest and 
Atlantic regions supports the definition of separate stocks. 
Additionally, manatees in the Southwest Region are more vulnerable to 
red tide than in other regions, and manatees in the Atlantic and 
Southwest regions are more dependent on man-made warm water sources 
than are manatees in the Upper St. Johns River and Northwest regions 
(U.S. Fish and Wildlife Service 2001). Addressing these threats 
necessitates application of different management approaches in each 
region. This further supports the definition of these as separate 
stocks.
    Based on the preceding analysis, we conclude that the four regions 
identified in the Florida Manatee Recovery Plan meet the criteria for 
designation as separate stocks under the MMPA. We intend to use this 
determination in the next revision of the Stock Assessment Report for 
the West Indian Manatee, and for the remainder of this document we will 
refer to the regions as the Northwest Stock, Upper St. Johns River 
Stock, Atlantic Stock, and Southwest Stock. Ideally, we would have 
preferred to review and revise the Stock Assessment Report prior to 
this rulemaking; however, settlement obligations precluded our ability 
to do this.
    We have determined that these stocks, under the MMPA, do not meet 
the criteria for designation as Discrete

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Population Segments pursuant to the ESA, and as such it would not be 
possible or appropriate for us to consider reclassification of the 
stocks separately under the ESA.

Summary of Proposed Rule

    We are proposing regulations to allow the incidental, unintentional 
take of Florida manatee within the Northwest, Upper St. Johns River, 
and Atlantic stocks in Florida. The regulations would be in effect 
year-round from the date of enactment for a period of five years for 
government activities related to the operation of watercraft and 
watercraft access facilities. The proposed regulations would not 
authorize the intentional harassment, hunting, capturing, or killing of 
Florida manatee. These regulations do not permit the actual activities 
associated with use and regulation of watercraft and watercraft access 
facilities in Florida waters, but rather allow the incidental, 
unintentional take of the Florida manatee resulting from these 
otherwise lawful activities. We are not proposing to authorize 
incidental take of manatees from the Southwest Stock at this time. 
However, we will continue to monitor the status of the Southwest Stock, 
and will propose incidental take regulations as soon as available 
information indicates that watercraft-related incidental take in this 
region is having no more than a negligible impact on the Southwest 
Stock, or could be reduced to the negligible impact level with 
implementation of mitigating measures.
    The proposed regulations include requirements for monitoring and 
reporting, and measures to reduce adverse impacts on the Florida 
manatee and its habitat to the maximum extent practicable. The 
regulations are based on the finding that the authorization and 
regulation of watercraft and watercraft access facilities in Florida 
may result in the taking of Florida manatee. We find that with the 
continued and/or additional implementation of the mitigating measures 
described in this proposed rule, the total impact of the takings in 
three of the four stocks will have a negligible impact on these stocks.
    After establishing these regulations, in order to implement the 
regulations and for a person or agency to receive the protections 
offered by the MMPA, government agencies that engage in the specified 
activities would need to apply for and obtain an LOA. The process for 
requesting an LOA is described in the ``Proposed LOA Process'' section 
of this proposed rule.

The Status of the Florida Manatee

    In the southeastern United States, manatees occur primarily in 
Florida and southeastern Georgia, but individuals can range as far 
north as Rhode Island on the Atlantic coast (U.S. Fish and Wildlife 
Service 2001), and as far west as Texas on the Gulf coast. During the 
winter, cold temperatures keep the population concentrated in 
peninsular Florida and many manatees rely on the warm water from 
natural springs and power plant outfalls. We have divided this 
population into four stocks as explained above.
    Research in the early 1980s indicated to scientists that 
development of a means of estimating or monitoring trends in the size 
of the overall manatee population in the southeastern United States 
would be difficult (O'Shea 1988, O'Shea et al. 1992, Lefebvre et al. 
1995). Even though many manatees aggregate at warm-water refuges in 
winter and most if not all such refuges are known, direct counting 
methods (i.e., by aerial and ground surveys) have been unable to 
account for the number of animals that may be away from these refuges, 
are not seen because of turbid water, or for other factors. The use of 
mark-resighting techniques to estimate manatee population size based on 
known animals in the manatee photo-identification database also has 
been impractical, as the proportion of unmarked manatees has not been 
estimated.
    The only data on population size have been uncalibrated indices 
based on maximum counts of animals at winter refuges made within one or 
two days of each other. Based on such information in the late 1980s, 
the total number of manatees throughout Florida was indicated to be at 
least 1,200 animals (U.S. Fish and Wildlife Service 2001). Because 
aerial and ground counts at winter refuges are variable because of the 
weather, water clarity, manatee behavior, and other factors (Packard et 
al. 1985, Lefebvre et al. 1995), interpretation of analyses for short-
lived trends is difficult (Packard and Mulholland 1983, Garrott et al. 
1994). Strip-transect aerial surveys are used routinely to estimate 
dugong (Dugong dugon) population size and trends (U.S. Fish and 
Wildlife Service 2001); however, these surveys do not adapt to manatees 
because of their more linear (i.e., coastal and riverine) distribution. 
This survey method was tested in the Banana River, Brevard County, and 
recommended for use in that area to monitor manatee population trends 
(Miller et al. 1998). This approach may also have utility in the Ten 
Thousand Islands-Everglades area, where manatee population size and 
distribution is poorly understood.
    Beginning in 1991, the former Florida Department of Natural 
Resources (FDNR) initiated a statewide aerial survey program to count 
manatees in potential winter habitat during periods of severe cold 
weather (Ackerman 1995). These surveys are more comprehensive than 
those used to estimate a minimum population during the 1980s. The 
highest two-day minimum count of manatees from these winter synoptic 
aerial surveys and ground counts is 3,276 manatees in January 2001; the 
highest count on the east coast of Florida is 1,756, and the highest on 
the west coast is 1,520, both in 2001. However, the manatee counts of 
March 2002, when weather conditions were less favorable, resulted in a 
total count of 1,796. The FWC stated in their March 6, 2002, press 
release that the ``low count merely reflects the poor visibility during 
the count, not a dramatic change in the manatee population.'' Due to 
the nearly ideal conditions for the 2001 synoptic survey, the results 
of that survey are considered the best available estimate of the 
current minimum population size (i.e., 3,276).
    It remains unknown what proportions of the total manatee population 
were counted in these surveys. No statewide surveys were done during 
the winters of 1992-93 or 1993-94 because of the lack of strong mid-
winter cold fronts. These uncorrected counts do not provide a basis for 
assessing population trends. However, trend analyses of temperature-
adjusted aerial survey counts show promise for providing insight to 
general patterns of population growth in some regions (Garrott et al. 
1994, 1995, Craig et al. 1997, Eberhardt et al. 1999).
    It has been possible to monitor the number of manatees using the 
Blue Spring and Crystal River warm-water refuges. At Blue Spring, with 
its unique combination of clear water and a confined spring area, it 
has been possible to count the number of resident animals by 
identifying individual manatees from scar patterns. The data indicate 
that this group of animals has increased steadily since the early 1970s 
when it was first studied. During the 1970s the number of manatees 
using the spring increased from 11 to 25 (Bengtson 1981). In the mid-
1980s about 50 manatees used the spring (U.S. Fish and Wildlife Service 
2001), and by the winter of 1999-2000, the number had increased to 147 
(Hartley 2001).
    On the northwest coast of Florida, the clear, shallow waters of 
Kings Bay have made it possible to monitor the number

[[Page 69083]]

of manatees using the warm-water refuge in Kings Bay at the head of the 
Crystal River. Large aggregations of manatees apparently did not exist 
there until recent times (U.S. Fish and Wildlife Service 2001). The 
first counts were made in the late 1960s, when 38 animals were counted 
in King Bay during the winter of 1967/1968 (Hartman 1979). By the 
winter of 1981/1982, the maximum winter count had increased to 114 
manatees (Powell and Rathbun 1984), and in December 1997, the maximum 
count was 284 (Buckingham et al. 1999). Both births and immigration of 
animals from other areas have contributed to the increases in manatee 
numbers at Crystal River and Blue Spring. The increases in counts at 
Blue Spring and Crystal River are accompanied by estimates of adult 
survival and population growth that are higher than those determined 
for the Atlantic coast (Eberhardt and O'Shea 1995, Langtimm et al. 
1998, Eberhardt et al. 1999).
    While aircraft synoptic surveys provide a ``best estimate'' of the 
minimum manatee population size, there are no estimates or confidence 
intervals for the size of the Florida manatee population that have been 
derived by reliable, statistically based, population-estimation 
techniques. A census is a complete count of individuals within a 
specified area and time period. A survey, in contrast, is an incomplete 
count. With the exception of a few places where manatees may aggregate 
in clear, shallow water, not all manatees can be seen from aircraft 
because of water turbidity, depth, surface conditions, variable times 
spent submerged, and other considerations. Thus, results obtained 
during typical manatee synoptic surveys yield partial counts. While 
these results are of value in providing information on where manatees 
occur, likely relative abundance in various areas, and seasonal shifts 
in manatee abundance, they do not provide good population estimates, 
nor can they reliably measure trends in the manatee population. 
Consequently, the Florida Manatee Recovery Plan concludes--``Despite 
considerable effort in the early 1980s, scientists have been unable to 
develop a useful means of estimating or monitoring trends in size of 
the overall manatee populations in the southeastern United States'' 
(U.S. Fish and Wildlife Service 2001).
    Population models employ mathematical relationships based on 
survival and reproduction rates to calculate population growth and 
trends in growth. A deterministic model (a model in which there are no 
random events) using classical mathematical approaches and various 
computational procedures with data on reproduction and survival of 
living, identifiable manatees suggests a maximum growth rate of about 
seven percent per year, excluding emigration or immigration (Eberhardt 
and O'Shea 1995). This maximum was based on studies conducted between 
the late 1970s and early 1990s in the protected winter aggregation area 
at Crystal River and did not require estimates of population size. The 
analysis showed that the chief factor affecting the potential for 
population growth is survival of adults.
    Estimated adult survival in the Atlantic Region has suggested a 
slower rate or no population growth over a similar period, compared to 
the Upper St. Johns River and Northwest regions. This modeling shows 
the value of using survival and reproduction data obtained from photo-
identification studies of living manatees to compute population growth 
rates with confidence intervals, providing information which can be 
used to infer long-term trends in the absence of reliable population 
size estimates. However, collection of similar data has been initiated 
only recently for other areas of Florida (notably from Tampa Bay to the 
Caloosahatchee River beginning in the mid-1990s), and none is available 
over much of the remaining areas used by manatees in southwestern 
Florida.
    A PVA is a stochastic modeling approach (i.e., a model in which 
random events, such as red tide and extremely cold winters, are 
incorporated), which varies potential scenarios influencing 
reproduction and survival over long periods, and predicts responses in 
population growth. A PVA was carried out for manatees based on age-
specific mortality rates computed from the age distribution of manatees 
found dead throughout Florida from 1979 through 1992 (Marmontel et al. 
1997). This method of computing survival rests on certain assumptions 
that were not fully testable; yet, results point out the importance of 
adult survival to population persistence.
    Given population sizes that may reflect current abundance, the PVA 
showed that if adult mortality as estimated for the study period were 
reduced by a modest amount (e.g., from 11 percent down to nine 
percent), the Florida manatee population would likely remain viable for 
many years. However, the PVA also showed that slight increases in adult 
mortality would result in extinction of manatees over the long term.
    The above review demonstrates that the basis for statewide 
population size ``estimates'' of any kind, based on current survey 
methods, cannot be used for computing population trends in manatees. 
The weight of scientific evidence suggests that the potential for 
population increases over the last two decades is strong for two 
protected aggregation areas. New population analyses, based on more 
recent (since 1992) information, are not yet available in the peer-
reviewed literature. These analyses will be fundamental to management 
decisions that are more relevant today.
    The most significant problem presently faced by manatees in Florida 
is death or serious injury from boat strikes. An additional long-term 
threat is the lack of availability of warm-water refuges. The 
availability of warm-water refuges for manatees is uncertain if minimum 
flows and levels are not established for the natural springs on which 
many manatees depend, and if industrial warm-water refuges are lost as 
deregulation of the power industry in Florida occurs. Consequences of 
an increasing human population and intensive coastal development are 
also long-term threats to the Florida manatee. Survival of the manatee 
will depend on maintaining the integrity of the ecosystem and habitat 
sufficient to support a viable manatee population.
    Data on manatee deaths in the southeastern United States have been 
collected since 1974 (O'Shea et al. 1985, Ackerman et al. 1995, FWC 
unpubl. data). Data since 1976 were used in the following summary, as 
carcass collection efforts were more consistent following that year. 
They indicate a clear increase in manatee deaths over the last 25 years 
(6.0 percent per year exponential regression between 1976 and 2000; 
U.S. Fish and Wildlife Service 2001). Most of the increase can be 
attributed to increases in watercraft-related and perinatal deaths 
(Marine Mammal Commission 1993). Between 1976 and 2002, watercraft-
related deaths increased at an average of 7.3 percent per year (Florida 
Marine Research Institute 2002). However, it is unclear whether this 
represents an increase in the overall mortality rate or a proportional 
increase relative to the overall population of manatees. The reported 
rate of increase in manatee mortality, and watercraft-related mortality 
in particular, is greater than the likely rate of population increase 
reported by Runge et al. (2002).
    Natural causes of death include disease, parasitism, reproductive 
complications, and other non-human-related injuries, as well as 
occasional exposure to cold and red tide (O'Shea et al. 1985, Ackerman 
et al. 1995). These

[[Page 69084]]

natural causes of death accounted for 17 percent of all deaths between 
1976 and 2000 (FWC, unpublished data). Perinatal deaths accounted for 
21 percent of all deaths in the same period. Human-related causes of 
death include watercraft collisions, manatees crushed in water control 
structures and navigational locks, and a variety of less-common causes. 
Human-related causes of death accounted for at least 31 percent of 
deaths between 1976 and 2000. Cause of death of some individuals could 
not be determined because of advanced decomposition, the cause was 
forensically undeterminable, or the carcass was not recovered. These 
carcasses were classified as undetermined, and accounted for 30 percent 
of deaths between 1976 and 2000.
    A natural cause of death in some years is exposure to cold. 
Following a severe winter cold spell at the end of 1989, at least 46 
manatee carcasses were recovered in 1990; the cause of death for each 
was attributed to cold stress. Exposure to cold is believed to have 
caused many deaths in the winters of 1977, 1981, 1984, 1990, and 2001 
and has been documented as early as the 19th century (Ackerman et al. 
1995, O'Shea et al. 1985, FWC, unpubl. data).
    In 1982, a large number of manatees also died during an outbreak of 
the red tide dinoflagellate (Gymnodinium breve) between February and 
March in Lee County, Florida (O'Shea et al. 1991). At least 37 manatees 
died, perhaps in part due to incidental ingestion of filter-feeding 
tunicates that had accumulated the neurotoxin-producing dinoflagellates 
responsible for causing red tide. In 1996, from March to May, at least 
145 manatees died in a red tide outbreak over a larger area of 
southwest Florida (Bossart et al. 1998, Landsberg and Steidinger 1998). 
Although the exact mechanism of manatee exposure to the red tide 
brevetoxin is unknown in the 1982 and 1996 outbreaks, ingestion, 
inhalation, or both are suspected (Bossart et al. 1998). The critical 
circumstances contributing to high red tide-related deaths are 
concentration and distribution of the red tide, timing and scale of 
manatee aggregations, salinity, and timing and persistence of the bloom 
(Landsberg and Steidinger 1998). It is difficult to manage for these 
rare but catastrophic causes of mortality.
    Perinatal deaths are carcasses of manatees less than 59 inches long 
(O'Shea et al. 1995). Some are aborted fetuses; others are stillborn or 
die of natural causes within a few days of birth. Some may die from 
disease, reproductive complications, and/or congenital abnormalities. 
The cause of many perinatal deaths is difficult to determine, because 
these carcasses are generally in an advanced state of decomposition at 
the time they are retrieved. Most perinatal deaths appear to be due to 
natural causes; however, watercraft-related injuries or disturbance, or 
other human-related factors affecting pregnant and nursing mothers also 
may be responsible for a significant number of perinatal deaths. It has 
also been suggested that some may die from harassment by adult male 
manatees (O'Shea and Hartley 1995). Between 1976 and 1999, perinatal 
deaths increased at an average of 8.8 percent per year, increasing from 
14 percent of all deaths between 1976 and 1980, to 22 percent between 
1992 and 2000 (Ackerman et al. 1995, FWC unpubl. data).
    The largest known cause of human-related manatee deaths is 
collisions with watercraft. The next largest human-related cause of 
deaths is entrapment or crushing in water control structures and 
navigational locks, which accounted for four percent of total mortality 
between 1976 and 2000 (Ackerman et al. 1995, FWC unpubl. data). These 
deaths were first recognized in the 1970s (Odell and Reynolds 1979), 
and steps have been taken to eliminate this source of death. Other 
known causes of human-related manatee deaths include poaching and 
vandalism, entanglement in shrimp nets and monofilament line (and other 
fishing gear), entrapment in culverts and pipes, and ingestion of 
debris. These accounted for three percent of the total mortality from 
1976 to 2000.
    In 2001, the Manatee Population Status Working Group (MPSWG) 
provided a statement summarizing what they believed to be the status of 
the Florida manatee at that time (U.S. Fish and Wildlife Service 2001). 
The MPSWG stated, that for the Northwest and Upper St. Johns River 
regions, available evidence indicated that there had been a steady 
increase in animals over the last 25 years. Such growth was consistent 
with the conditions of these regions--low numbers of human-related 
deaths, high estimates of adult survival, and good habitat. The 
statement was less optimistic for the Atlantic Region due to an adult 
survival rate that was lower than the rate necessary to sustain 
population growth. The MPSWG believed that this region had likely been 
growing slowly in the 1980s but may then have leveled off or even 
possibly declined. They considered the status of the Atlantic Region to 
be ``too close to call.'' This finding was consistent with high levels 
of human-related and, in some years, cold-related deaths in this 
region. Regarding the Southwest Region, the MPSWG acknowledged that 
further data collection and analysis would be necessary to provide an 
assessment of the manatee's status in this region. Preliminary 
estimates of adult survival available to the MPSWG at that time 
indicated that the Southwest Region was similar to the Atlantic Region 
and ``substantially lower than [the adult survival estimates] for the 
Northwest and Upper St. Johns Regions.'' The Southwest Region was cited 
as having had high levels of watercraft-related deaths and injuries and 
natural mortality events (i.e., red tide and severe cold).
    Since the above-mentioned assessment by the MPSWG, additional 
information and analyses have become available. Based on the data 
provided at the April 2002 Manatee Population Ecology and Management 
Workshop, we now believe that the Northwest and Upper St. Johns River 
stocks continue to do well and that these stocks are approaching the 
demographic benchmarks established in the Florida Manatee Recovery Plan 
for downlisting and delisting under the ESA. Furthermore, we believe 
that the Atlantic Stock may be close to meeting the ESA downlisting 
benchmark for adult survival, at a minimum, and is likely close to 
meeting or exceeding the other benchmarks. We are less optimistic, 
however, regarding the Southwest Stock. Although data are still 
insufficient or lacking to compare the Southwest Stock's status to the 
ESA downlisting/delisting criteria, preliminary data for adult survival 
indicate that the Southwest Stock is below the benchmarks established 
in the Florida Manatee Recovery Plan.
    Although we are optimistic about the apparent increases in 
population in three out of the four stocks, it is important to clarify 
that, in order to downlist or delist the manatee pursuant to the ESA, 
all four stocks must simultaneously meet the appropriate criteria as 
described in the Florida Manatee Recovery Plan. Additionally, any 
action under the ESA would be based on a status assessment for the 
species throughout its range and must consider the factors, as 
described in section 4(a)(1) of the ESA, that determine whether any 
species meets the definition of endangered or threatened.

Watercraft-Related Impacts to the Florida Manatee

    Between 1976 and 2002, watercraft-related mortality accounted for 
24 percent of total mortality and increased at an average rate of 7.3 
percent per year

[[Page 69085]]

(Florida Marine Research Institute 2002). From 1996 to 2002, 
watercraft-related deaths have been the highest on record. 
Additionally, many living manatees also bear scars or wounds from 
vessel strikes, indicating that watercraft are also responsible for a 
substantial amount of harassment of manatees. An analysis of injuries 
to 406 manatees killed by watercraft and recovered between 1979 and 
1991 found that 55 percent were killed by impact, 39 percent were 
killed by propeller cuts, four percent had both types of injuries, 
either of which could have been fatal, and unidentified specifics of 
the collision had caused two percent of the mortalities (Wright et al. 
1995). The vast majority of available information regarding the effects 
of watercraft-related activities on manatees is related to lethal take 
of manatees. For the purposes of this analysis, we are assuming that 
activities that result in the lethal take of manatees also have similar 
levels of sub-lethal effects on manatees and manatee habitat.
    Watercraft speed is the primary factor contributing to collisions 
with manatees. At high speeds, watercraft operators are less able to 
detect and avoid objects (such as manatees) in the path of the vessel 
and manatees have less time to detect and avoid the on-coming vessel. 
Due to these facts, Federal, State, and local officials have sought to 
limit watercraft speeds in areas where manatees are most likely to 
occur to afford both manatees and boaters time to avoid collisions. 
Additionally, the mere presence of watercraft can cause harassment of 
manatees in certain situations; most notably at warm water aggregation 
areas, where large numbers of manatees congregate to stay warm during 
winter months. Disturbance of manatees at these sites can cause 
manatees to leave the warm water area, exposing them to potentially 
harmful cold water conditions. To address this threat, State and 
Federal officials have restricted human access to many important warm 
water sites during winter months. The establishment of speed zones and 
restricted access areas do not cause or contribute to incidental take, 
per se; however, to the extent that agencies exempt, except, permit, or 
otherwise authorize restricted or prohibited activities to occur in 
such areas, such authorization may cause or contribute to the 
incidental take of manatees.
    The number of watercraft operating on Florida's waters may also be 
a factor. The FWC Division of Law Enforcement reported that, in 1999, 
more than one million vessels used Florida's waterways, including over 
829,000 State-registered vessels and about 300,000 out-of-state 
vessels. Boating continues to increase in Florida as evidenced by just 
over 943,600 State-registered vessels (FWC 2002a) and more than 400,000 
out-of-state vessels for 2001. At the same time, watercraft-related 
manatee mortality and increasing mortality trends have been documented 
since collection of manatee mortality data began in 1974. Data 
regarding causes of manatee deaths, and particularly the increasing 
number of watercraft-related deaths, should be viewed in the context of 
Florida's growing human population, which has increased by 130 percent 
since 1970, from 6.8 to 15.7 million in 2000 (Florida Office of 
Economic and Demographic Research 2001). The rise in manatee deaths 
during this period is attributable, in part, to the increasing number 
of people and watercrafts sharing the same waterways. It should also be 
noted that the increasing number of deaths could, in part, be due to 
increasing numbers of manatees. If existing protection (zones and 
enforcement) for manatees remains at its current standards, we 
anticipate that human-caused take will continue to increase to levels 
that will lead to a declining population in certain portions of the 
population, which may already be occurring for the Southwest Stock. As 
noted above, the number of manatee carcasses recovered statewide each 
year is increasing at a rate that is likely greater than the rate of 
increase in the manatee population. Continuation of this trend would 
inevitably lead to a population decline. During the past five years 
(1997 to 2001), the watercraft-related deaths have been the highest on 
record with 55, 66, 82, 78 and 81, respectively. This year (2002), 
watercraft-related mortalities have surpassed 1999 as highest on 
record.
    As noted above, where and how fast watercraft are operated are the 
most important factors in watercraft-related incidental take of 
manatees. However, other activities related to operation of watercraft 
are contributing factors to incidental take. Virtually all watercraft 
operating in Florida waters gain access to those waters by watercraft 
access facilities. Construction and operation of such facilities have 
the potential to affect manatee habitat such as seagrass beds, and 
construction activities have the potential to harass manatees. 
Additionally, the availability and location of watercraft access 
facilities influence the number of watercraft that use any given 
waterbody, as well as watercraft travel patterns. To the extent that 
the location and size of a watercraft access facility contributes to 
increased watercraft access to areas of importance to manatees such as 
aggregation areas, travel corridors, feeding areas, resting areas, 
calving areas, and other areas where manatees occur, these facilities 
can indirectly cause or contribute to the incidental take of manatees 
by watercraft. Given that over one million watercraft use Florida 
waters each year, the relative effect of any particular watercraft 
access facility on watercraft traffic volume or travel is generally 
small statewide. However, the cumulative effects of constructing many 
facilities substantially influences the number of watercraft on 
Florida's waters and the travel patterns of those vessels, which can 
substantially influence interactions between watercraft and manatees. 
Additionally, in certain situations the construction of a new 
watercraft access facility may substantially influence watercraft 
travel patterns and volume locally. As such, the authorization, 
funding, and/or operation of watercraft access facilities by government 
agencies can cause or contribute to incidental take of manatees.

Determination of Negligible Impact

Background

    The MMPA states that, ``it is the sense of the Congress that 
[marine mammals] should be protected and encouraged to develop to the 
greatest extent feasible commensurate with sound principles of resource 
management and that the primary objective of their management should be 
to maintain the health and stability of the marine ecosystem.'' Section 
2 of the MMPA also identifies a specific goal of maintaining marine 
mammal stocks within their Optimum Sustainable Population (OSP) level. 
However, it is also clear that Congress did not intend that the level 
of incidental take must in every case be reduced to zero. Section 
101(a)(5)(A) clearly indicates that some level of incidental take of 
even depleted marine mammals can be authorized as long as the impact is 
negligible.
    In the 1986 amendments to the MMPA, Congress expanded the 
provisions for the authorization of incidental take of marine mammals 
related to activities other than commercial fisheries by allowing 
authorization of take of depleted species as well as non-depleted 
species. Section 3 of the MMPA defines a ``depleted'' species as one 
that is either below its OSP or is listed as endangered or threatened 
under the ESA. The Florida manatee is listed as an endangered species 
under the ESA, and therefore,

[[Page 69086]]

all four stocks are categorized as depleted under the MMPA.
    The NOAA-Fisheries and the Service issued final rules implementing 
the 1986 amendments to the MMPA on September 29, 1989 (54 FR 40338). 
These regulations define ``negligible impact'' as an impact resulting 
from the specified activity that cannot be reasonably expected to, and 
is not reasonably likely to, adversely affect the species or stock 
through effects on annual rates of recruitment or survival (50 CFR 
18.27(c)). The preamble to these regulations described the analytical 
framework the agencies would use when making negligible impact 
determinations. For non-depleted stocks (i.e., stocks that are within 
the range of OSP) the agencies stated that a finding of negligible 
impact could only be made if the specified activities are not likely to 
reduce the stock below its OSP. However, it was also noted that not all 
takings that do not reduce the population below OSP would be considered 
negligible. The agencies explained that--''healthy marine mammal 
populations that have reached an equilibrium level usually experience 
fluctuations in population numbers within some normal range due to a 
variety of environmental and biological factors. Such fluctuations may 
involve short-term population declines that do not pose a risk to the 
stocks remaining within the limits of OSP. We believe that minimal 
impacts on a healthy stock caused by incidental taking can still be 
considered negligible if such taking does not cause the population to 
fluctuate beyond normal limits. In other words, for a population stock 
that is at its OSP level, slight impacts on the stock resulting from 
incidental take do not rise to the level of `adverse effects' on annual 
rates of recruitment or survival if the population stock is maintained 
at essentially the same level.''
    With respect to depleted stocks, the preamble to the 1989 
regulations states-- ``In order to make a negligible impact finding, 
the proposed incidental take must not prevent a depleted population 
from increasing toward its OSP at a biologically acceptable rate.'' In 
explaining what would constitute a ``biologically acceptable rate'' of 
population increase, the agencies stated that in order to be considered 
``negligible'' the effects of the authorized take must have no 
significant effect on annual rates of recruitment or survival. The 
population growth rate for any species is the result of all births 
during the year (recruitment) minus all deaths (animals that do not 
survive). As such, to be considered ``negligible,'' authorized 
incidental take must not affect annual rates of recruitment or survival 
in such a way as to significantly affect the population growth rate of 
a depleted stock. The analytical framework made clear that it was not 
necessary to demonstrate that an authorized level of take would have 
``no effect'' on a stock's rate of increase toward OSP, but only that 
the take would not significantly affect the long-term population trend.

Methodology

    The language of the MMPA and its implementing regulations provide 
qualitative descriptions of the goals with respect to take of marine 
mammals. For the purposes of this rulemaking, we translated these goals 
into standards against which the effects of the specified activity may 
be measured. The means of making the best use of available scientific 
information regarding the Florida manatee in our negligible impact 
determination was discussed at the April 2002 Manatee Population 
Ecology and Management Workshop. We provided the expert panelists 
convened at the workshop with background information including a 
summary of the existing statute and regulations, rulemaking criteria 
and timeframes, and methods previously considered, and the topic was 
discussed at a general session of the Workshop. We also presented new 
information at the April 2002 Workshop regarding the status of the 
manatee population and the status of manatee research. Additionally, we 
presented new population models and analyses that showed substantial 
promise for improving our ability to assess the status of manatee 
stocks, and to predict and monitor the effects of various factors, 
including human factors, on manatee populations.
    Following the April 2002 Workshop, we held a meeting of scientists 
from the U.S. Geological Survey (USGS), the Service, and other 
organizations with specific expertise in population modeling and marine 
mammals to further clarify the Workshop discussions. Based on our 
review of the legislative history of the MMPA, its implementing 
regulations, existing guidance, past incidental take rulemakings, the 
scientific literature, and the results of the Workshop and the follow-
up meeting, we were able to develop a solid conceptual framework upon 
which to build our negligible impact determination.
    In reviewing existing guidance and previous rulemakings, we note 
that participants at the 1994 Potential Biological Removal (PBR) 
Workshop (Barlow et al. 1995) agreed that the term ``insignificant'' in 
the Zero Mortality Rate Goal for commercial fisheries (as stated in 
section 101(a)(2) of the MMPA) was relative to the biological 
significance of the incidental take. They further agreed that an 
``insignificant'' level of mortality was a level that would have a 
``negligible'' impact on a given marine mammal stock. In terms of 
stocks that are depleted (i.e., population levels below OSP), it is 
generally accepted that the large majority of annual net productivity 
must be reserved for the recovery of the stock to its OSP level, and 
that only a small portion should be allocated for incidental take, so 
that human-related take does not significantly increase the time needed 
to reach OSP. Therefore, based on our interpretation of the MMPA, its 
implementing regulations, previous incidental take rulemakings, and our 
current understanding of manatee population dynamics, we concluded that 
in order for us to determine that the allowable level of human-related 
incidental take would have a ``negligible impact'' we must be 
reasonably certain that the take would not significantly increase the 
time needed to achieve OSP.
    For this rulemaking we must ensure that the total taking authorized 
over the life of the rule has no more than a negligible impact on the 
stocks through effects on annual rates on recruitment or survival, so 
the species will continue to increase toward OSP at a biologically 
acceptable rate. As such, in order to find that watercraft-related 
incidental take is having a negligible impact on each manatee stock we 
must find that:
    1. There is reasonable certainty that authorized incidental take 
will not significantly increase the time needed to reach OSP.
    The PBR formula was suggested as an available method for 
quantitatively making our negligible impact determination for this 
rule. The PBR formula was included in sections 117 and 118 as part of 
the 1994 amendments to the MMPA to allow resource managers to 
conservatively estimate an acceptable amount of human-related 
incidental take of marine mammals relative to commercial fishing 
operations. We do not believe it was intended for assessing incidental 
take relative to the ``negligible impact'' standard prescribed by the 
MMPA for activities other than commercial fishing, which was added to 
the MMPA in 1981. Additionally, the PBR formula is a simplified model 
that uses limited data and default values that we believe are not 
appropriate for determining the negligible impact threshold for

[[Page 69087]]

manatees. There is a relatively large body of data regarding the 
Florida manatee stocks which is not utilized in the PBR formula. As 
such, the use of the PBR formula for management decision-making related 
to manatees would not enable managers to use the best available 
scientific information.
    As stated previously, our negligible impact standard is that there 
is reasonable certainty that the authorized level of incidental take 
would not significantly increase the time needed to reach OSP. 
Determining the OSP level for a species or stock requires an 
understanding of the carrying capacity of the environment for that 
species or stock and the maximum net productivity level. These values 
are currently unknown for the Florida manatee; therefore, we can not 
directly assess the status of the population relative to OSP, or 
estimate the amount of time it may take for the population to reach 
OSP. However, our regulations do not require a formal determination of 
OSP in order to make a negligible impact finding. Rather, one need only 
establish that the total take would not ``significantly reduce the 
increase of that population'' and would not prevent ultimate 
achievement of OSP (54 FR 40341).
    The Florida Manatee Recovery Plan (U.S. Fish and Wildlife Service 
2001) developed quantifiable demographic benchmarks for determining 
when recovery has been achieved for purposes of the ESA. The 
demographic benchmarks were based on published estimates of survival, 
reproduction, and population growth rate. These benchmarks are--(1) 
statistical confidence (95 percent) that the average annual rate of 
adult manatee survival is 90 percent or greater; (2) statistical 
confidence that the average annual percentage of adult female manatees 
accompanied by first or second year calves in winter is 40 percent or 
greater; and (3) statistical confidence that the average annual rate of 
population growth is equal to or greater than zero. The Florida Manatee 
Recovery Plan states that these benchmarks must be based on estimates 
from at least a twenty-year data set. Twenty years was thought to 
encompass approximately two manatee generations, which was deemed to be 
a sufficient data set to ensure that estimated benchmark rates were 
reflective of genuine population trends as opposed to short-term 
fluctuations.
    Adult survival is the most influential factor determining manatee 
population dynamics (Eberhardt and O'Shea 1995, Marmontel et al. 1997, 
Langtimm et al. 1998). A one percent increase in adult survival rate 
results in a one percent increase in growth rate; no other life-history 
parameter has this strong an effect (Eberhardt and O'Shea 1995). While 
manatee population growth is less sensitive to changes in reproductive 
rates than adult survival rates (Eberhardt and O'Shea 1995, Marmontel 
et al. 1997), annual variation in reproductive rates might be greater 
than annual variation in survival rates, and may reflect demographic 
pressures not captured by survival rate, so the Manatee Population 
Status Working Group concluded that reproductive rates are another 
useful indicator of manatee population status. The population growth 
rate benchmark was selected to ensure the manatee population continues 
to increase toward OSP, regardless of any uncertainty regarding the 
relationship between the other two benchmarks and the overall 
population trend.
    As stated above, it was concluded in the Florida Manatee Recovery 
Plan that the Florida manatee population could be considered to be 
``healthy'' and able to sustain itself after the demographic benchmarks 
were met for all four stocks based on at least a 20-year data set. 
Assuming that none of the stocks were severely depleted when data 
collection relative to the demographic benchmarks began (in the late 
1970s and 1980s), twenty years of continued growth at the benchmark 
rates would in all likelihood result in stocks that are within or near 
the range of OSP. As such, we have determined that it is reasonable to 
assume that achievement of the demographic benchmarks will result in a 
population that is within or near the range of OSP, and that the 
negligible impact threshold would be that level of incidental take that 
does not significantly increase the time needed to achieve the 
demographic benchmarks.
    We examined the current data set and analyses of survival rates, 
and recruitment, and reviewed population growth rate projections 
generated by the model presented by Runge et al. at the April 2002 
Manatee Population Ecology and Management Workshop (Runge unpubl. 
analysis), which incorporate the historically observed level of 
watercraft-related incidental take. This enabled us to qualitatively 
assess the status of the four stocks relative to the demographic 
benchmarks, and determine whether anticipated levels of watercraft-
related take during the five-year period of the rule are likely to 
significantly increase the time needed for the stocks to reach OSP. 
These assessments were based on a twenty year data set including 15 
years of historical data and projections (including levels of 
watercraft-related take) for the five-year period of the rule. For the 
Southwest population, for which a 15 year historical data set is not 
available, we made projections based on the available historical data 
and the long-term trends of the survival rates (which incorporate 
watercraft-related take), recruitment, and population growth rates of 
the 15 year period necessary to run our assessment
    For each of the stocks, our projected information covered a twenty-
year period ending with the five-year period of this rule. Using these 
projections, we qualitatively assessed the status of the four stocks 
relative to the demographic benchmarks. As part of this analysis we 
considered effects of activities that would occur within the five-year 
period of this rule but that may not manifest themselves until after 
the five-year period. Due to life history characteristics, the Florida 
manatee population may experience a delayed response to changes in 
mortality rates. Therefore, effects resulting from incidental take may 
not produce noticeable changes during the five-year period, but could 
affect the ability of the stock to maintain itself within OSP or affect 
the rate of increase toward OSP over a longer term. We also assessed 
the availability and relative effectiveness of various types of 
mitigating measures.
    In addition, separate from this rulemaking process, we are working 
to ensure that we meet the MMPA's long term goal of maintaining marine 
mammal populations within OSP. The Florida Fish and Wildlife 
Conservation Commission (2002b) noted that manatees have a low 
reproductive rate, low intrinsic population growth rates, low genetic 
variability, and high vulnerability to stochastic and epizootic events 
such as extreme cold and red tide. The Florida Marine Research 
Institute (2002) also noted that long term threats to the Florida 
manatee related to natural and man-made warm water sites are likely to 
be felt over the next 50 to 100 years. As such, we have the established 
standards to measure the stocks' relationship to OSP over the longer 
term. These objectives are stated as follows:
    2. There is reasonable certainty that the manatee stock will remain 
within OSP for 50 years; and
    3. There is reasonable certainty that the manatee stock will remain 
within OSP for 100 years.
    The determinations in this proposed rule are based on our review of 
the best available data, and we believe this method is adequate for 
making this negligible impact determination. We believe that it may be 
possible to refine this analysis based on a modeling effort

[[Page 69088]]

that is currently being developed. As stated above, in terms of stocks 
that are depleted (i.e., population levels below OSP), it is generally 
accepted that the large majority of annual net productivity must be 
reserved for the recovery of the stock to its OSP level, and that only 
a small portion should be allocated for incidental take, so that human-
related take does not significantly increase the time needed to reach 
OSP. It is also generally accepted that the ``small portion'' of net 
productivity authorized for removal due to human causes should not 
exceed ten percent of annual net productivity, and that for depleted 
stocks of marine mammals generally, incidental take should not increase 
the time needed to reach OSP by more than ten percent (Wade 1994, Wade 
and Angliss 1997).
    The concept of increasing the time needed to achieve OSP by not 
more than ten percent is embodied in the PBR guidelines and is 
consistent with recommendations submitted to the NOAA-Fisheries by the 
Marine Mammal Commission in 1990 regarding the regulation of incidental 
take related to commercial fishing operations (65 FR 35904). This 
concept also appeared in the 1992 legislative proposal by NOAA-
Fisheries, which became the basis for the 1994 amendments to the MMPA 
(Wade 1998).
    Because most marine mammal species, including manatees, are 
difficult to observe and study, it is difficult to collect data of 
sufficient quality to allow detection of statistically significant 
changes in population parameters such as abundance or growth rate 
within the timeframes and with the precision needed for effective 
management (Wade 1998). As such, assessing the probability of a given 
action (or set of actions) causing a greater than ten percent increase 
in time needed to achieve OSP provides a reasonable standard, whereas 
attempting to quickly detect statistically significant changes in 
population parameters is impracticable.
    The negligible impact standard established above could be restated 
quantitatively as follows:
    1. There is 95 percent certainty that authorized incidental take 
will not increase the time needed to reach OSP by more than ten 
percent;
    Additionally, the long term standards established above could be 
restated as follows:
    2. There is a 95 percent probability that the manatee stock will be 
within OSP in 50 years; and
    3. There is a 99 percent probability that the manatee stock will be 
within OSP in 100 years.
    Regarding the probabilities associated with the above standards, 
the 95 percent probabilities for the first two standards were chosen to 
be consistent with the modeling approach used by Wade (1994) for 
selecting appropriate values for the PBR equation variables. We 
selected a higher probability value for the third standard to reflect 
the relative importance of our long term desire to ensure that each 
stock remains within OSP.
    New population models and analyses were presented at the April 2002 
Manatee Population Ecology and Management Workshop that clearly 
represent state-of-the-art analyses of manatee population status. 
Additionally, new data were presented regarding important manatee life 
history parameters; particularly, survival estimations for various life 
stages. In reviewing the models and analyses presented, it was decided 
that the model presented by Runge et al. (2002) was most suitable for 
adaptation for use in our negligible impact determination. This model 
was determined to be particularly well suited for use in the negligible 
impact determination because it utilizes the best available scientific 
information regarding Florida manatee survival estimates. It also 
utilizes the best available information regarding reproductive rates 
(recruitment) in Florida manatees. The fact that the model is built on 
estimates of survival and recruitment also corresponds directly to the 
regulatory definition of ``negligible impact.''
    The Negligible Impact Model (model), based on the work of Runge et 
al. (2002), is described in detail in Appendix I of the draft 
Environmental Impact Statement. The model is based on female manatee 
population dynamics. The female manatee population is separated by age 
and reproductive status. Survival and reproductive probabilities are 
defined for each class. The model projects population trends for each 
of the four manatee stocks based on repeated simulations that 
incorporate environmental and demographic variability, as well as 
varying levels of human-related take.
    Discussions with the model's author indicated that the model could 
be modified to allow for estimation of the effects of varying levels of 
human-related incidental take on population structure and growth. 
Projections can be made assuming that no human-related take occurs. 
This establishes the baseline condition for purposes of comparison. In 
other words, in the absence of any incidental take, the four stocks 
would be expected to achieve the demographic benchmarks as quickly as 
possible. This baseline can then be compared to projections based on 
various levels of incidental take to determine at what point such take 
causes a greater than ten percent increase in the time needed to 
achieve the demographic benchmarks. Repeated simulations are performed 
to create a distribution of population projections from which the 
probability of achieving the benchmarks for a given level of take can 
be calculated.
    In examining the possibility of modeling the time needed to achieve 
the demographic benchmarks, we realized that the Negligible Impact 
Model may indicate, under certain foreseeable scenarios, that the 
demographic benchmarks cannot be achieved even in the absence of 
incidental take. As mentioned above (see ``The Status of the Florida 
Manatee'' section), a substantial portion of the Florida manatee 
population currently depends on industrial warm water outfalls for 
survival during cold weather. It is likely that these sites will cease 
operation over the next 100 years; although we do not believe the loss 
of any significant warm water sites is currently imminent or likely 
over the term of this proposed rule. If alternative warm water sites 
are not available, the carrying capacity of the environment for 
manatees could be substantially reduced. This could substantially 
affect future demographic factors such as survival rates and population 
growth rates, even if no other human-related take occurs. It would also 
affect the OSP level for the species. The model will be used to assess 
scenarios based on the assumption of a declining carrying capacity as 
well as scenarios in which the carrying capacity is assumed to remain 
unchanged. If model results indicate that the demographic benchmarks 
cannot be maintained over 50 and 100 years for reasons unrelated to 
watercraft-related incidental take, we will reassess our assumed 
relationship between the demographic benchmarks and OSP, and base our 
final determination on the best available scientific information.
    If our analysis indicates that the currently observed level of 
incidental take exceeds the negligible impact standards (i.e., if 
current incidental take levels are increasing the time needed to 
achieve the demographic benchmarks by more than ten percent and/or are 
likely to prevent the stocks from continuing to meet the benchmarks 
over 50 and 100 years), then we would assess whether mitigating 
measures (discussed below) are available that could reduce incidental 
take to the negligible impact level.

[[Page 69089]]

Mitigating Measures

    We have identified five categories of mitigating measures that 
government agencies can implement to reduce and control watercraft-
related incidental take. In decreasing order of effectiveness these 
include--(1) establishment of speed zones and protected areas to 
control watercraft speeds and/or restrict access to areas of importance 
to manatees; (2) law enforcement to ensure compliance with restrictions 
established pursuant to (1); (3) education to improve public 
understanding of manatee conservation needs and enhance compliance with 
manatee protection measures; (4) review of proposals to construct 
watercraft access facilities with a view toward minimizing the effects 
of such facilities on manatees and manatee habitat; and (5) other 
measures that are available or may become available over the period of 
this rule. Although the categories vary in terms of their relative 
effectiveness, they cannot be viewed as completely separate measures 
because the effectiveness of each depends on others. For example, speed 
zones must be enforced and the public must be informed and educated 
about the zones through appropriate signage and outreach in order for 
the zones to provide effective protection of manatees.
    1. Watercraft Regulations--As previously stated (see Watercraft-
Related Impacts to the Florida Manatee) watercraft operation and speed 
are the primary factors contributing to collisions with manatees. As 
such, government programs that regulate watercraft speeds and access to 
areas of importance to manatees have the greatest potential to control 
watercraft-related incidental take. At high speeds, watercraft 
operators are less able to detect and avoid objects in the path of the 
vessel (such as manatees) and manatees have less time to detect and 
avoid the on-coming vessel. Additionally, when collisions do occur, 
high-speed collisions are more likely to cause death or serious injury 
than low speed collisions. Due to these facts, Federal, State and local 
officials have sought to limit watercraft speeds in areas where 
manatees are most likely to occur to afford both manatees and boaters 
time to avoid collisions.
    In addition to the threat posed by collisions with watercraft, the 
mere presence of watercraft can cause harassment of manatees in certain 
situations; most notably at warm water aggregation areas, where large 
numbers of manatees congregate in small areas in order to stay warm 
during winter months. Disturbance of manatees at these sites can cause 
manatees to leave the warm water area, exposing them to potentially 
harmful cold water conditions. To address this threat, Federal, State 
and local managers have restricted human access to many important warm 
water sites during winter months.
    Watercraft speed and access are controlled through--(a) 
establishment of watercraft speed zones and restricted access areas, 
including posting of appropriate signage; and (b) regulation of 
specific marine events; particularly high-speed watercraft races. 
Federal, State, and local government agencies have the authority to 
designate speed zones and restricted access areas within waters 
accessible to manatees. At the Federal level, we designate ``manatee 
protection areas'' pursuant to 50 CFR 17.103. 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 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.
    State manatee protection rules are established by the FWC to 
restrict the speed and operation of vessels where necessary to protect 
manatees from harmful collisions with vessels and from harassment. In 
areas that are especially important to manatees, the State's rules can 
prohibit or limit entry into an area as well as restrict what 
activities can be performed in the area. The FWC is authorized to adopt 
these rules by the Manatee Sanctuary Act (370.12(2), Florida Statutes). 
The rules appear in Chapter 68C-22 of the Florida Administrative Code 
(FAC).
    Local governments can also establish manatee protection zones 
through the adoption of a local ordinance. These zones must be approved 
by FWC before they can take effect, as required by Chapter 
370.12(2)(o), F.S. The only other limitation on a local government's 
ability to establish manatee protection zones is that local zones 
cannot include waters within the main marked channel of the Florida 
Intracoastal Waterway or waters within 100 feet. The FWC manatee 
protection rulemaking process is described in rule 68C-22.001, FAC.
    The goal with respect to the establishment of watercraft speed 
zones and restricted access areas is to identify areas of importance to 
manatees, including wintering sites, travel corridors, feeding areas, 
calving areas, and other areas of similar importance, and to ensure 
that such areas are protected with appropriate designations. 
Designations should be consistent at a regional level and configured as 
simply as possible to facilitate public understanding and compliance. 
Signage for all designated areas should be consistently and 
appropriately worded and located in order to enhance compliance in all 
manatee protection areas.
    Marine events are regulated at the Federal level by the U.S. Coast 
Guard (USCG), in consultation with us. Marine events include watercraft 
races, ski shows, fishing tournaments, boat parades and events such as 
fireworks shows, which can attract large numbers of spectators in 
watercraft. Marine events involving high-speed activities are of 
primary concern as it relates to threats to manatees. These events 
generally include races, waterskiing and fishing tournaments with high-
speed starts or other high-speed operations. The USCG is authorized to 
issue regulations to promote the safety of life on navigable waters 
during regattas and marine parades (33 U.S.C. 1233). This authority 
includes events on, in, and under the water.
    Whenever a marine event is planned by an individual or an 
organization (the sponsor) which, by its nature, circumstances, or 
location, will restrict navigation or otherwise introduce extra or 
unusual hazards to the safety of life on navigable waters of the United 
States, the sponsor must submit an application to the USCG for review 
and approval. The application is received and investigated by 
respective district, group, or unit offices that have authority to 
permit or deny the proposed event. Current USCG policy allows issuing 
authorities to add conditions or deny permits for marine events based 
on environmental concerns (COMDTINST 16751.3A, Regattas and Marine 
Parades). In Florida, sponsors apply to USCG group offices in Key West,

[[Page 69090]]

Mayport, Miami, and St. Petersburg. USCG reviewers investigate each 
application and, when appropriate and as required under section 7 of 
the ESA, request consultation with us when it is apparent that the 
proposed event may affect manatees or other listed species. The USCG 
also coordinates with the Florida Department of Environmental 
Protection for events held in State waters. Through these review 
processes it is generally recommended that marine events be held in 
areas and at times when there is little or no likelihood of 
encountering manatees. When this is not possible, it is either 
recommended that the event not be held or that certain measures be 
adopted as a condition of the USCG permit to minimize the effect of the 
event on manatees and manatee habitat. These measures include the use 
of manatee watches, designating slow speed areas for the duration of an 
event, education of event participants and spectators, and other 
measures.
    2. Enforcement--In order to be effective in controlling watercraft-
related incidental take, there must be a high level of compliance with 
established watercraft speed zones and restricted access areas. 
Enforcement is an important element of compliance. Ideally, our goal is 
to achieve full compliance with manatee protection regulations. Studies 
indicate that in the absence of law enforcement roughly 54 to 63 
percent of boaters are in compliance with posted speed zones; while 20 
to 51 percent are in technical non-compliance (exceeding posted speeds 
by one speed category or any level of excessive speed for a relatively 
small distance within the posted area), and the remainder are in 
blatant non-compliance (exceeding posted speeds by greater than one 
speed category for a significant portion of the posted area) (Gorzelany 
1996, 1998, 2001; Shapiro 2001). Studies have found, however, that the 
level of boater compliance is variable depending on location. For 
example, Gorzelany (1998) found overall boater compliance for several 
sites in the Caloosahatchee River averaged 57.3 percent, but ranged 
from a low of 12 percent to a high of 77 percent. In the presence of 
law enforcement, Shapiro (2001) recorded a compliance rate of up to 89 
percent. Gorzelany (2001) observed an increase of compliance from 29-44 
percent to 64-73 percent in the presence of law enforcement. Our 
proposed compliance goal, based on recent work by Mote Marine 
Laboratory and Florida Marine Research Institute (Gorzelany 1996, 1998, 
2001, Shapiro 2001), is to achieve 70 percent or greater full 
compliance and no more than ten percent blatant non-compliance levels 
throughout the State, as determined by independent monitoring studies. 
Based on the above-mentioned studies, this level of compliance appears 
to be achievable, while also representing the upper range of observed 
compliance levels in the presence of enforcement. We recognize that 
this goal does not assess the effects of other important aspects of 
compliance. For example, in situations where there are very high number 
of watercraft operating in an area with high numbers of manatees, 
achieving the above compliance standard could still lead to a high 
number of non-compliant watercraft operating in a manner that poses a 
threat to manatees.
    Enforcement of manatee protection rules is provided by officers of 
the Service, FWC, USCG, and local law enforcement agencies, as well as 
the courts. To ensure compliance with the waterway speed and access 
rules and with manatee harassment provisions, enforcement capabilities 
must be expanded and coordinated. Although efforts have increased 
significantly during the past few years, manatee enforcement operations 
still must be expanded in both geographic scope and frequency. To meet 
these needs, Federal and State enforcement agencies should take all 
possible steps to increase funding and heighten agency priority for 
manatee-related law enforcement activities. Those activities should be 
maintained at levels commensurate with those of vessel traffic, 
watercraft-related manatee deaths, and added enforcement 
responsibilities. To carry out enforcement activities as efficiently 
and cost-effectively as possible, involved agencies should coordinate 
enforcement efforts. In addition, enforcement agencies should review 
and assist as much as possible with the development of new manatee 
protection statutes and regulations, the posting of manatee regulatory 
signs, enforcement training seminars, studies to monitor regulatory 
compliance, and actions by the judiciary to prosecute violations.
    3. Watercraft Operator Education/Awareness--In addition to signage 
and enforcement, watercraft operator education and awareness is 
essential to achieving greater compliance within and understanding/
recognition of manatee protection areas, as well as the general 
public's understanding of manatee conservation issues. A study by the 
Environmental Protection Agency (EPA) found that the more the EPA 
invested in outreach and education through various avenues, including 
press releases, trade articles, and plain English brochures, the 
greater the likelihood that companies would be informed about 
environmental regulations and be likely to comply (Eustis 1993). Many 
manatee and habitat education programs and materials are produced and 
made available to school systems as well as the general public and user 
groups; however, such efforts need to be continually evaluated and 
updated. This information must be clear, consistent, concise, and 
readily available to the general public and target user groups. As 
such, Federal and State agencies should cooperatively develop uniform 
multi-media educational programs/curricula for the general public and 
schools, and ensure that these materials are provided to all watercraft 
operators utilizing Florida waters.
    The success of manatee/habitat conservation efforts requires 
identification of target audiences and locations. Target audiences and 
key locations should be prioritized by need, i.e., areas where manatee 
mortality and injury are highest, areas where manatee/human interaction 
occurs frequently, and areas where habitat is most at risk. These areas 
include, but are not limited to, high watercraft use areas, boat ramps, 
manatee aggregation sites, manatee observation areas, fishing piers, 
seagrass areas, and other areas identified as having important habitat 
features (e.g., fresh water areas and areas used for resting and/or 
calving). It is also important that some materials explicitly target 
specific user groups, such as boaters in areas of high watercraft 
mortality.
    4. Watercraft Access Facility Siting--The siting and construction 
of watercraft access facilities can be directed through local zoning, 
in the form of facility siting components of county manatee protection 
plans (MPPs), or through Federal and State permitting processes.
    A. Watercraft Access Facility Siting Plans--Development of MPPs is 
mandated by the Florida Manatee Sanctuary Act (Chapter 370.12, F.S.). 
Watercraft access facility siting plans, as components of comprehensive 
county MPPs, are excellent tools for guiding long-term watercraft 
access facility development and anticipating and addressing the 
cumulative impacts of such facilities. By anticipating and planning for 
the future access needs at a county-wide level, the cumulative effects 
on manatees and manatee habitat can be anticipated and mitigated. It is 
our view that this forward-looking approach is preferable to the more 
reactive approach or dealing with the effects of such facilities on a 
case-by-case basis. Under the Florida Manatee

[[Page 69091]]

Sanctuary Act, 13 counties are mandated to develop MPPs by July 1, 
2004. The FWC is to designate any other county where there exists a 
substantial risk to manatees by January 1, 2005, and those counties are 
to develop MPPs by July 1, 2006.
    B. Permit review--The agencies involved in the authorization of 
watercraft access facilities and their regulatory processes are 
described above (see Specified Activities). Through these review 
processes, the potential adverse effects to manatees or manatee habitat 
are identified, and if necessary permits can be specifically 
conditioned to avoid the adverse impacts, or where appropriate, denied. 
Typical permit conditions include limitations on the number of slips, 
and avoidance or minimization of impacts to sea grasses and other 
habitat features. Additionally, standard manatee construction 
conditions have been developed that are utilized by the Corps as well 
as State regulatory agencies to minimize the direct effects of 
watercraft access facilities on manatees and manatee habitat. These 
conditions include education of construction personnel regarding 
manatee awareness; control of construction-related vessel speeds; use 
of construction equipment such as siltation barriers that avoid manatee 
entrapment; stand-off distances from manatees sighted in construction 
area; and manatee awareness signage. These standard conditions and 
other conditions developed through the permit review process have been 
effective in minimizing the direct effects of watercraft access 
facilities and their construction on manatees and manatee habitat.
    5. Technological and Other Mitigating Measures--Devices such as 
propeller guards have been used in limited circumstances to reduce the 
threat of manatee death or injury. Other technologies have been 
discussed or proposed; however, none have yet been demonstrated to be 
effective or practical. The FWC has recently funded additional research 
into various types of technological measures to reduce watercraft-
related take of manatees, and any such measures that are demonstrated 
by this research, to be effective and practicable to implement during 
the period of this rule will be considered along with the mitigating 
measures described above. This would occur through future review and 
renewal of agency LOAs.

Negligible Impact Analysis and Conclusions

    Based on our application of the above described method for 
assessing the status of Florida manatee stocks relative to the 
``negligible impact'' standards and our review of the existing and 
potentially available/necessary mitigating measures, we have made the 
following findings for each of the four stocks. As stated above, these 
determinations are based on our review of the best available data, and 
we believe this method is adequate for making this negligible impact 
determination. It may be possible to refine this analysis for the final 
rule based on a modeling effort that is currently being developed.
    1. Upper St. Johns River Stock--Adult survival for this Stock has 
been calculated to be 96.1 percent with a 95 percent confidence 
interval range from 90.0 to 98.5 percent (Langtimm et al. 1998), based 
on data collected between 1977 and 1993. It is estimated that 41 
percent of females at the winter sites are accompanied by first or 
second-year calves (U.S. Fish and Wildlife Service 2001). It is also 
estimated that this stock is growing at a rate of 6.1 percent per year, 
with a 95 percent confidence interval between 1.7 and 8.7 (Runge, 
unpubl. analysis). All three estimates exceed the levels indicated in 
the demographic benchmarks, which indicates a healthy and growing 
population, and provided the factors affecting this population remain 
essentially the same (including continued implementation of existing 
conservation measures), we anticipate that the stock will continue to 
increase toward OSP at a biologically acceptable rate.
    Existing conservation measures in this area include an adequate 
system of watercraft speed zones that have been implemented by the FWC. 
There is also a seasonal motorboat prohibited zone at Blue Spring, the 
primary wintering site for this stock. These zones are enforced by 
local, State and Federal law enforcement. Shapiro (2001) reported 85 
percent compliance with speed zones near Blue Spring in the presence of 
law enforcement. There are no County MPPs in place within this Stock; 
however, Volusia County is in the process of preparing one. In the 
absence of county MPPs, applications for construction of watercraft 
access facilities are reviewed on a case-by-case basis, and effective 
measures to reduce impacts on manatees will be required. Other measures 
such as boater education and regulation of marine events are also 
carried out within this Stock. As reflected by rates that exceed the 
demographic benchmarks, these measures are effectively controlling the 
amount of watercraft-related incidental take. Our analysis of historic 
levels of watercraft-related incidental take, levels of take 
anticipated during the five-year period, and the effectiveness of 
existing measures indicates that the anticipated take during the five-
year period will not significantly affect rates of recruitment or 
survival. Provided existing measures continue to be implemented we 
expect this Stock to continue to perform at the currently observed 
level, and there will be no significant delay in achieving OSP. 
Therefore, we find that watercraft-related incidental take is having a 
negligible impact on this Stock. Separate from our negligible impact 
finding, we also find no evidence to suggest that the currently 
observed levels of watercraft-related incidental take will adversely 
affect long term population trends.
    2. Northwest Stock--Adult survival for this Stock has been 
calculated to be 96.2 percent with a 95 percent confidence interval 
range from 95.3 to 97.2 percent (Langtimm et al., unpubl. analysis), 
based on data collected between 1981 and 2000. It is estimated that 43 
percent of females at the winter sites are accompanied by first or 
second-year calves (U.S. Fish and Wildlife Service 2001). It is also 
estimated that this Stock is growing at a rate of 5.0 percent per year, 
with a 95 percent confidence interval between 3.2 and 6.8 (Runge, 
unpubl. analysis). All three estimates exceed the levels indicated in 
the demographic benchmarks, which indicates a healthy and growing 
population, and provided the factors affecting this population remain 
essentially the same (including continued implementation of existing 
conservation measures), we anticipate that the stock will continue to 
increase toward OSP at a biologically acceptable rate.
    As reflected through rates that exceed the demographic benchmarks, 
the existing measures that are in place in this stock are effectively 
controlling the amount of watercraft-related incidental take. These 
measures include implementation of the Citrus County MPP. This plan was 
adopted in 1993 and includes, among other components, an adequate set 
of speed zones in areas of importance to manatees. Additionally, we 
have established several manatee protection areas that prohibit and 
control watercraft access to important wintering sites within the 
County. One of these sites is also designated as a seasonal watercraft 
prohibited area by the FWC. The speed zone and restricted access area 
regulations are enforced by County, State and Federal law enforcement.
    The Citrus County MPP also includes a watercraft facility siting 
component

[[Page 69092]]

that establishes effective criteria for the location and construction 
of such facilities within the County. The MPP has been adopted by 
local, State, and Federal agencies for evaluating the effects of 
proposed watercraft access facilities on manatees and manatee habitat. 
Other measures, such as boater education and regulation of marine 
events, are also carried out within this Stock.
    No other counties within this stock have adopted MPPs and no other 
speed zones or restricted access areas have been established for 
manatee protection. However, manatee use of the waters outside Citrus 
County is limited to the warm season, and this portion of Florida is 
much less densely populated than other areas of Florida. As such, there 
is much less watercraft traffic and the threat of collisions between 
boats and manatees is low. Our analysis of historic levels of 
watercraft-related incidental take, levels of take anticipated during 
the five-year period, and the effectiveness of existing measures 
indicates that the anticipated take during the five-year period will 
not significantly affect rates of recruitment or survival. Provided 
existing measures continue to be implemented we expect this Stock to 
continue to perform at the currently observed level, and there will be 
no significant delay in achieving OSP. Therefore, we find that 
watercraft-related incidental take is having a negligible impact on 
this Stock. Separate from this negligible impact determination, we also 
find no evidence to suggest that the currently observed levels of 
watercraft-related incidental take will adversely affect long term 
population trends.
    3. Atlantic Stock--Adult survival in this Stock has been calculated 
to be 94.3 percent with a 95 percent confidence interval range from 
92.3 to 96.2 (Langtimm et al., unpubl. analysis), based on data 
collected between 1984 and 2000. The percentage of adult females with 
first and second-year calves has been estimated to be 42 percent (U.S. 
Fish and Wildlife Service 2001). The annual population growth rate has 
been calculated to be 3.2 percent with a 95 percent confidence interval 
range between 0.3 and 5.7 (Runge unpubl. analysis). These three 
estimates are close to the demographic benchmarks. However, the number 
of manatees killed by watercraft increased at a rate of 5.5 percent per 
year between 1980 and 1999 (U.S. Fish and Wildlife Service 2001), which 
is higher than the estimated population growth rate. Additionally, 
Langtimm et al. (unpubl. analysis) found evidence for a decline in 
adult survival in the Atlantic Stock in the latter part of a 16-year 
time period. This apparent trend is currently being studied further 
with other statistical methods (Langtimm, personal communication).
    Numerous manatee protection measures are currently in place for the 
Atlantic Stock. Speed zones and/or restricted access areas have been 
established in Duval, Volusia, Brevard, Indian River, St. Lucie, 
Martin, Palm Beach, Broward, and Miami-Dade counties. We recently 
implemented Federal manatee protection areas at two sites in Brevard 
County, and the FWC has recently enacted new speed zones in Brevard and 
Indian River counties. MPPs have been approved by the FWC for Miami-
Dade, Duval, Indian River and St. Lucie counties. We believe that 
manatee protection measures recently implemented by the FWC and us in 
the Atlantic Stock as well as the additional measures described below 
will reduce levels of incidental take in the Atlantic Stock to the 
negligible impact level.
    In order to determine where additional mitigating measures need to 
be implemented, we have examined mortality trends within this Stock in 
an attempt to focus implementation of mitigating measures in those 
areas with continuing histories of high levels of watercraft-related 
incidental take. The analysis conducted by Flamm (2002) identified 
three primary manatee mortality concentration areas within the Atlantic 
Stock--(1) the Duval County area, (2) the Volusia-Brevard County area, 
and (3) Palm Beach-Broward County area. The best available information 
indicates that in order to reduce incidental take to a level that would 
have a negligible impact on this stock, mitigating measures must be 
focused in these areas.
    Within regard to the Duval County area, the FWC approved the Duval 
County MPP in 1999, which includes speed zones, facility siting 
criteria, education, and enforcement components. We have determined 
that the configuration of the speed zones is minimally acceptable, and 
the recent decision by the County to improve signage of the zones on 
the St. Johns River will improve manatee protection in this area. 
Implementation of the Duval County MPP should reduce manatee mortality 
in this area. Shapiro (2001) observed a 56 percent compliance rate and 
a seven percent blatant non-compliance rate at a site in Duval County, 
indicating that additional mitigating measures in this area should 
include improved enforcement and boater education efforts.
    Within the Volusia-Brevard County area, we believe that the newly 
enacted speed zones in Brevard County are adequate and appropriate, and 
given that Brevard County has historically been the area in the 
Atlantic Stock with the highest levels of watercraft-related mortality, 
the new Brevard County zones will substantially enhance protection of 
the Atlantic Stock. There is a continued high level of watercraft-
related manatee mortality in portions of Volusia County, including the 
Halifax and Tomoka Rivers, and no recent actions have been taken to 
improve the speed zones in these areas. We believe additional 
protective measures are needed in these areas.
    In addition to improvements in watercraft speed zones, it is likely 
that efforts are necessary to improve compliance with speed zone 
regulations. As noted above, Shapiro (2001) observed levels of 
compliance at sites within the Atlantic Stock that were below our 
above-stated compliance goal. As such, additional law enforcement and 
boater education efforts, focused within the above-described manatee 
mortality concentration areas (Flamm 2002) are considered to be 
appropriate and necessary mitigating measures to reduce watercraft-
related incidental take within the Atlantic Stock.
    We are continuously collecting and evaluating information regarding 
trends in watercraft-related mortality, and as new information becomes 
available, additional or different specific sites may be identified as 
being in need of additional protection. It is also possible that 
additional information could alter our views regarding the adequacy of 
protection measures in the above-identified areas. However, based on 
our current assessment of the best available information, 
implementation of the above-mentioned measures will be effective in 
reducing watercraft-related incidental take within the Atlantic Stock.
    In regard to the review of applications to construct watercraft 
access facilities, as stated above the preferred method is through the 
development and implementation of county MPPs, and the use of the 
facility siting component of those plans to guide local, State, and 
Federal permit review processes. It is our view that MPPs should be 
developed and implemented for all counties where the watercraft-related 
manatee mortality rate for the preceding five years averages one or 
more manatees. Based on current data, this includes the following 
counties within the Atlantic Stock-- Brevard, Broward, Duval, Indian 
River, Martin, Miami-Dade, Palm Beach, and Volusia. As noted above, 
MPPs have been approved by the FWC for Miami-Dade, Duval,

[[Page 69093]]

Indian River and St. Lucie counties. While development of MPPs for the 
above counties would be an appropriate, and indeed preferable 
mitigating measure with respect to the effects of watercraft access 
facilities, we have determined that it is not necessary to ensure that 
the effects of the authorized activities have a negligible impact on 
manatees, because until such plans are adopted the effects of 
watercraft access facilities on manatees and manatee habitat will 
continue to be assessed and reduced on a case-by-case basis through 
effective State and Federal regulatory processes, as described above.
    In summary, the Atlantic Stock is close to the demographic 
benchmarks; however, watercraft-related take is high, and it appears 
that this level of watercraft-related incidental take may affect this 
stock's ability to continue to increase toward OSP. Based on this, we 
conclude that the current level of watercraft-related incidental take 
is having a greater than negligible impact on this Stock. However, with 
the continued implementation of existing effective measures along with 
implementation of the additional mitigating measures described above, 
we conclude that the total effect of watercraft-related incidental take 
will have a negligible impact on this Stock. Our analysis of historic 
levels of watercraft-related incidental take, levels of take 
anticipated during the five-year period, and the effectiveness of 
existing and additional measures indicates that the anticipated take 
during the five-year period will not significantly affect rates of 
recruitment or survival. Separate from our negligible impact 
determination, if the apparent recent decline in adult survival is 
confirmed and continues, it will inevitably lead to a population 
decline that would adversely affect the long term population trend and 
prevent the stock from maintaining itself within OSP; however, we 
conclude that with the continued implementation of existing effective 
measures along with implementation of the additional mitigating 
measures described above, the total effect of watercraft-related 
incidental take will not adversely affect the long-term population 
trend.
    4. Southwest Stock--Adult survival for this Stock has been 
calculated to be 90.6 percent with a 95 percent confidence interval 
range from 86.7 to 94.4 percent (Langtimm et al. unpubl. analysis), 
based on data collected between 1994 and 2001. There are no reliable 
estimates of the percent of adult females at the winter sites that are 
accompanied by first or second-year calves, although we are working 
with our partners to collect these data. It seems reasonable to assume 
that the recruitment rate for the Southwest Stock is similar to or 
lower than observed for the Atlantic Stock. There are no estimates of 
the population trend for this Stock. However, based on the estimated 
adult survival rate, it is likely that this Stock is currently 
declining or is, at best, stable. It seems unlikely that the Southwest 
Stock is meeting any of the demographic benchmarks at this time, and 
based on the adult survival estimates, it appears as though 
considerable improvement will be needed in order to begin to move this 
Stock toward achieving the demographic benchmarks. Additionally, 
watercraft-related mortality has increased greatly in recent years. The 
average annual number of manatee mortalities attributed to watercraft 
during the past five years (1997 to 2001) was 34.2, compared to 19.0 
for the previous five-year period (1992 to 1996), and the number of 
manatees killed by watercraft increased at a rate of 7.3 percent per 
year between 1976 and 2002, which is a likely cause of the stable or 
declining population trend. Further, given the susceptibility of this 
Stock to naturally occurring mortality events such as red tide, it is 
possible that this Stock is less capable than other stocks of 
sustaining itself in the face of high levels of human-related take.
    Numerous manatee protection measures are currently in place within 
the Southwest Stock. Speed zones and/or restricted access areas have 
been established in portions of Hillsborough, Pinellas, Manatee, 
Sarasota, Charlotte, Lee, and Collier counties. We recently enacted 
Federal manatee protection areas at sites in Hillsborough, Pinellas, 
Sarasota, Charlotte, Desoto, and Lee counties, and the FWC has recently 
enacted new speed zones in Hillsborough, Manatee, Sarasota, Charlotte, 
and Desoto counties. A MPP has been approved by the FWC for Collier 
County. We believe that manatee protection measures recently 
implemented by the FWC and us for the Southwest Stock will reduce the 
rate of increase in the number of watercraft-related mortalities.
    In considering where additional mitigating measures need to be 
implemented, we have examined mortality trends within this Stock in an 
attempt to focus implementation of mitigating measures in those areas 
with continuing histories of high levels of watercraft-related 
incidental take. The analysis conducted by Flamm (2002) identified one 
primary manatee mortality concentration area within the Southwest Stock 
(i.e., the Charlotte, Lee, Collier County area). Additionally, review 
of mortality statistics indicate that the number of manatees killed by 
watercraft in the greater Tampa Bay area (Hillsborough, Pinellas, 
Manatee, and Sarasota counties) has increased rapidly in recent years. 
For the period between 1992 and 1996 an average of 4.6 manatees were 
killed by watercraft in the greater Tampa Bay area each year, whereas 
an average of 8.6 manatees per year were killed by watercraft between 
1997 and 2001. It is our view that in order to reduce incidental take 
to a level that would have a negligible impact on the manatee, 
mitigating measures must be focused in these areas.
    Within the greater Tampa Bay area, substantial efforts have been 
made to improve manatee protection by local governments, and recently 
by the FWC and us; however, large areas of these bays that are of 
importance to manatees remain unprotected. We understand that the FWC 
will begin to prepare a rulemaking proposal for Tampa Bay in the near 
future. It is our view that implementation of additional protection 
measures in Tampa Bay, Old Tampa Bay, and Hillsborough Bay are 
appropriate and necessary mitigating measures to reduce watercraft-
related incidental take within the Southwest Stock.
    Speed zones for manatee protection have been established only in 
very limited portions of Manatee County. There are no significant 
wintering sites in Manatee County. However, waters throughout the 
county receive considerable use by manatees; particularly Terra Ceia 
Bay, Anna Maria Sound, Sarasota Bay, the Manatee River and the Braden 
River. Recent enactment of speed zones in Terra Ceia Bay by the FWC 
will benefit manatees. It is our view that implementation of additional 
protection measures in Manatee County are appropriate and necessary 
mitigating measures to reduce watercraft-related incidental take within 
the Southwest Stock.
    Within the Charlotte-Lee-Collier County area, the recent enactment 
of speed zones on Lemon Bay and the Peace River by the FWC and us will 
improve manatee protection in these areas. Additionally, the FWC is 
conducting a study of the Caloosahatchee River, which may lead to 
recommendations for improving manatee protection in this area. 
Additionally, the FWC will conduct a broader study of the existing 
speed zone rules in Lee County, and a study of the waters of the Ten 
Thousand Islands area of Collier County, which may lead to 
recommendations for addressing our concerns regarding the waters near

[[Page 69094]]

Bokeelia Point, the Ten-mile Canal, Mullock Creek, and Chokoloskee Bay. 
Finally, the National Park Service (NPS) intends to address manatee 
protection measures within Everglades National Park as part of their 
General Management Plan process. It is our view that implementation of 
additional protection measures in the above-identified waterbodies are 
appropriate and necessary mitigating measures to reduce watercraft-
related incidental take within the Southwest Stock.
    As new information becomes available, additional areas of 
importance to manatees may be identified as being in need of additional 
protection. It is also possible that additional information could alter 
our views regarding the adequacy of protection measures in the above-
identified areas. However, based on our current assessment of available 
information, resolution of the above-mentioned deficiencies are 
considered to be appropriate and necessary mitigating measures to 
reduce watercraft-related incidental take within the Southwest Stock.
    In addition to improvements in watercraft speed zones, efforts are 
necessary to improve compliance with speed zone regulations. As noted 
above, Shapiro (2001) and Gorzelany (1996, 1998, 2001) observed levels 
of compliance at sites within the Southwest Stock that were below our 
above-stated compliance goal. As such, additional law enforcement and 
boater education efforts, focused within the greater Tampa Bay area and 
the Charlotte-Lee-Collier County area are considered to be appropriate 
and necessary mitigating measures to reduce watercraft-related 
incidental take within the Southwest Stock.
    In regard to the review of applications to construct watercraft 
access facilities, as stated above the preferred method is through the 
development and implementation of county MPPs, and the use of the 
facility siting component of those plans to guide local, State, and 
Federal permit review processes. It is our view that MPPs should be 
developed and implemented for all counties where the watercraft-related 
manatee mortality rate for the preceding 5 years averages one or more 
manatees. Based on current data, this includes the following counties 
within the Southwest Stock--Charlotte, Collier, Glades, Hillsborough, 
Lee, Manatee, Monroe, Pinellas, and Sarasota. As noted above, an MPP 
has been approved by the FWC for Collier County. We note that per the 
Florida Manatee Sanctuary Act MPPs are not currently mandated to be 
completed for all these counties and no MPPs are required to be 
completed before July 1, 2004. As such, the implementation of MPPs does 
not appear to be a mitigating measure that is likely to be implemented 
within the timeframe of this rule, and applications to construct 
watercraft access facilities will continue to be reviewed on a case-by-
case basis through State and Federal regulatory processes.
    As indicated above, there is a need for considerable improvement in 
the status of the Southwest Stock, and numerous measures are needed to 
bring about those improvements. It is our view that implementation of 
necessary mitigating measures is unlikely to occur within the timeframe 
(five years) necessary to reduce the effects of watercraft-related take 
to negligible levels per this proposed rule. As such, we conclude that 
the current level of human-related take of manatees is substantially 
increasing the time needed to achieve the demographic benchmarks and is 
having a more than negligible impact on this Stock, and incidental take 
of manatees cannot be authorized. This constitutes a negative finding 
pursuant to 50 CFR 18.27(d)(4). We further conclude that it is unlikely 
that the Stock will be able to achieve or maintain OSP levels over the 
near or long term under current levels of watercraft-related incidental 
take.
    We will continue to work with our partner agencies and stakeholders 
to develop and implement measures to reduce incidental take within this 
Stock. Additionally, we will also continue to work with the scientific 
community to collect the data necessary to improve our assessment of 
the status of the Southwest Stock relative to the demographic criteria. 
It is possible that additional and/or improved data collection and 
analysis will result in stronger data sets with greater statistical 
confidence. We believe that if incidental take can be reduced and 
controlled, and the necessary population data is collected, it may 
become possible at a future date to promulgate regulations authorizing 
incidental take in this region. We will continuously monitor the status 
of this Stock relative to the benchmarks, and will propose incidental 
take regulation as soon as we determine that incidental take within 
this Stock has been reduced to a negligible level, or could be reduced 
to a negligible level through implementation of mitigating measures. 
This could occur at any time during the five-year period of this rule, 
or in subsequent rulemakings.

Monitoring and Reporting

    Reducing and controlling the incidental take of manatees at a level 
that would have a negligible impact on the species requires active 
participation of all stakeholders, including boaters, marine 
manufacturers and industry, government agencies, and the general 
public. In order to provide all parties a continuing role in this 
process and implementation of this rule, we propose to establish a 
Working Group on Watercraft-related Incidental Take (WGWIT).
    The WGWIT will be organized as a sub-committee of the Florida 
Manatee Recovery Team, similar to what has been done with the Habitat 
Working Group and the Warm Water Task Force. The composition of the 
WGWIT will have representation from the Florida Manatee Recovery Team 
and participants from each of the following parties/stakeholders--
recreational power boaters, personal watercraft operators, non-
motorized boating groups, commercial fishermen, fishing guides, 
recreational fishing organizations, marine manufacturers, marina 
owners, environmental advocates, consultants and each government agency 
obtaining an LOA from us per the final rule. WGWIT members will serve 
without compensation. Through this notice we are requesting suggestions 
on groups that should be included in the WGWIT and nominations of 
persons interested in serving on this panel. Nominations for the WGWIT 
should be submitted as part of the comments to this proposed rule. 
Comments are due on the date stated above in DATES, and you should 
refer to the ADDRESSES section of this proposed rule on how to submit 
comments. Based upon the nominations, we will send out invitations for 
participation in the WGWIT in late January 2003.
    Once the final rule is in effect, the WGWIT will meet regularly 
(twice yearly) to assist in evaluating the effectiveness of the 
mitigating measures in reducing incidental take of manatees. Based upon 
these evaluations, the WGWIT will make recommendations to us regarding 
means of improving the effectiveness of existing mitigating measures, 
elimination of ineffective or unnecessary mitigating measures, and 
additional mitigating measures that may be necessary, and will advise 
the Service on needs related to research and monitoring. 
Recommendations from the WGWIT will be non-binding on our actions, but 
will be given strong consideration in the implementation of the 
incidental take regulations.
    We also intend to form a Law Enforcement Committee under the WGWIT, 
comprising of the Federal, State and local entities involved with

[[Page 69095]]

the (1) design, location, installation, and/or maintenance of signs, 
(2) enforcement of speed zone and restricted access regulations, and 
(3) prosecutorial discretion to take action against violators. We 
envision this committee to include representatives from the Service 
(Ecological Services and Law Enforcement), FWC (Bureau of Protected 
Species Management and Law Enforcement), FDEP, Corps, USCG, Inland 
Navigation Districts, and the U.S. Attorney's Office. The Law 
Enforcement Committee would be tasked with development of a statewide 
violation tracking system as well as a uniform profile and fine 
structure. The committee would also assist researchers and managers in 
the identification and prioritization of manatee protection areas for 
targeted compliance monitoring and enforcement. We believe improved 
coordination among law enforcement entities will result in improved 
compliance and improved manatee protection overall.
    The monitoring and reporting requirements associated with this rule 
are intended to enable us to track agency compliance with the terms and 
conditions of issued LOAs, and to evaluate observed levels of 
incidental take against the negligible impact threshold. We intend to 
integrate information received through these requirements with current 
and future research efforts in order to evaluate the effectiveness of 
mitigative measures with a view toward refining measures to improve 
results, and to identify and fill data gaps in order to improve future 
decision-making.
    Monitoring efforts for each of the five categories of mitigating 
measures will be structured as follows. We anticipate improvement of 
these efforts as information is gathered and the WGWIT has the 
opportunity to evaluate the monitoring methods and standards.
    1. Watercraft Speed Regulations--We, in coordination with the FWC 
and other LOA holders, will evaluate areas of manatee habitat, with or 
without designated watercraft speed zones and restricted access areas, 
to determine if an adequate system of protective measures has been 
established. The evaluation would include, but not be limited to, 
carcass retrieval information/annual mortality statistics, aerial 
surveys, speed zone compliance, mapping quantity and quality of 
important habitat features (e.g., warm water refugia, fresh water 
sources, seagrass beds, etc.), and the status of the development or 
implementation of facility siting plans.
    2. Enforcement--To monitor the level of compliance in designated 
speed zones and restricted access areas, we propose the use of the 
methodology developed by Mote Marine Laboratory (Gorzelany 1996 and 
1998).
    For each site to be monitored, a land-or water-based observation 
area should be chosen to provide the observer with a vantage point that 
also allows discreet observation so as not to influence speed or 
behavior of watercraft operators utilizing the site. At each site, 
three 2-hour observation periods per month should be conducted and 
include two weekend days (Saturday and Sunday) and one weekday (Monday-
Friday). For the purposes of this rule, the duration and time of year 
of monitoring will be site specific and determined by several factors, 
including but not limited to, peak season(s) of manatee use in relation 
to peak season(s) of watercraft use, historic and present level of 
watercraft-related manatee mortality, proximity to winter aggregation 
site or other important habitat features, and seasonality, if any, of 
the manatee protection area. Each site should be sampled equally among 
three different 2-hour time windows: 0800-1000 hours, 1100-1300 hours, 
and 1400-1600 hours. For each observation day, the observer(s) should 
record the weather, wind, wave, and boating conditions for each site. 
For each watercraft observed, the observer(s) should record the time, 
vessel type, vessel size, activity the vessel is engaging in, origin, 
destination, vessel speed, evaluation of compliance, and any additional 
comments. Gorzelany (1996) provides a detailed description of the 
categories and definitions of the data to be collected as well as an 
example of a data collection sheet. Data should be compiled and 
analyzed consistent with Gorzelany (1996 and 1998) in order to have 
meaningful, comparable results throughout the state.
    3. Watercraft Operator Education/Awareness--Monitoring of 
education/awareness efforts would be accomplished by LOA holders 
through participant evaluation forms included in education packages for 
watercraft operator safety programs as well as programs designed for 
the general public and schools. Periodic surveys of the public at large 
should also be developed through the WGWIT and administered in a 
random, statewide study to determine the overall effectiveness of 
manatee education and outreach.
    4. Watercraft Access Facility Siting--The FWC's BPSM currently 
tracks and reports on the status of county MPPs. In addition, LOA 
holders who permit watercraft access facilities will be required to 
report the numbers and types of watercraft access facilities authorized 
each year by water body, as well as other relevant information 
including permit conditions and permit denials.
    Each agency receiving an LOA will be required to submit a report of 
all activities conducted pursuant to the LOA annually. The specific 
reporting requirements, including which activities must be reported and 
the level of detail necessary for reporting, will depend on the 
specific activities for which each agency seeks an LOA, and will be 
specified in the LOA.

Research

    On-going and additional research activities will provide additional 
information for implementation of this rule and development of future 
rules and conservation efforts. These include, but are not limited to, 
the following--continued efforts to gather data on survival rates for 
the various life stages and the reproductive rates defined in the 
population model; continued and expanded efforts to assess the 
effectiveness of watercraft speed zones as tools for reducing 
watercraft-related incidental take; expanded research on the effects of 
speed zones and watercraft access facility siting on boater behavior 
and travel patterns; continued and expanded monitoring of compliance 
with posted speed zones; and continued research into development of 
technologies to reduce manatee/watercraft interactions. These and 
future studies will be used to further evaluate and modify this process 
through time. Additionally, this research may help us make future 
findings for the Southwest Stock, as mentioned above.

Proposed LOA Process

    The proposed regulations have been designed to identify the 
appropriate mitigation, monitoring, and reporting requirements to be 
detailed in the LOA, rather than in these regulations. This has been 
done because of the variable scope of authority, area of 
responsibility, and activities engaged in by the potential LOA 
applicants, and because appropriate measures need to be tailored to 
particular areas. Mitigating measures identified above as appropriate 
and necessary to ensure the effects of watercraft-related activities 
have a negligible impact on manatees must be in place before incidental 
take authorization can be granted.
    Additional mitigating measures are not required for the Northwest 
and Upper St. Johns River stocks beyond those actions currently being 
taken by local, State, and Federal agencies; therefore, we anticipate 
that as long as

[[Page 69096]]

applicants for LOAs commit to continue to engage in their current 
efforts to conserve manatees and to minimize the potential adverse 
affects of their activities on manatees, and these stocks continue to 
meet or exceed the demographic criteria, incidental take can be 
authorized. In the Atlantic Stock, however, those government agencies 
that have the necessary authority and resources will need to work with 
us to implement the appropriate mitigating measures in order to achieve 
negligible impact. Without their participation, other parties will not 
be able to receive authorization for incidental take within this Stock. 
Participation by other LOA holders will help reduce levels of take, but 
individually we do not believe that smaller government agencies can 
implement mitigative measures necessary to reduce watercraft-related 
manatee mortality to the negligible level within the Atlantic Stock.
    In regard to local governments, most of the activities engaged in 
by local governments with respect to this rule are conducted under the 
purview of the State. For example, local MPPs and associated speed 
zones are approved by the FWC, and watercraft facility siting plans are 
incorporated into county comprehensive plans per the Department of 
Community Affairs. As such, should the State of Florida seek and 
receive an LOA that addresses incidental take related to their 
oversight of such local government activities, separate LOAs would not 
be needed by the counties.
    No incidental take is authorized until LOAs are issued. Where there 
is the likelihood of taking Florida manatee, the entities who conduct 
activities described in the Specified Activities section may request an 
LOA. The proposed regulations require those who request an LOA to 
submit (1) a description of the specific activity or class of 
activities that can be expected to result in the incidental take of 
manatees; (2) the dates and duration of such activity and the specific 
geographical region where it will occur; (3) the anticipated impact of 
the activity on manatees (i.e., death, injury, harassment, etc.); (4) 
the anticipated impact of the activity to manatee habitat and the 
likelihood of restoration of the affected habitat; (5) the anticipated 
impact of the loss or modification of manatee habitat; (6) the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting such activity or other means of 
effecting the least practicable adverse impact on the manatee and its 
habitat; (7) suggested means of accomplishing the necessary monitoring 
and reporting; and (8) suggested means of encouraging and coordinating 
research opportunities, plans, and activities to reduce such incidental 
take.
    Each request for an LOA will be evaluated for the specific activity 
and the specific area for which authorization of incidental take is 
requested, and we will specifically condition each LOA for that 
activity and area. LOAs will be valid for one calendar year from the 
date of issuance, with re-authorization contingent on the submission of 
required report(s), including but not limited to, the status of 
implementation of LOA conditions and results of required monitoring. We 
will withdraw or suspend an LOA if we find that either the LOA or 
regulations are not being substantially complied with or that the 
authorized level of take is having or is likely to have more than a 
negligible impact on the Florida manatee (50 CFR 18.27(f)(5)). We 
anticipate that in the event that an LOA holder is not substantially 
complying with the conditions of an LOA in a manner that leads to 
incidental take that is or is likely to be higher than the negligible 
impact level for the stock for which incidental take is being 
authorized, all LOAs issued may have to be suspended or withdrawn. 
Except in emergency situations where we have determined that there is a 
significant risk to the well-being of the Florida manatee, suspension 
or withdrawal of LOAs will not occur prior to notice and opportunity 
for public comment.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be based on the best available information. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule.
    We welcome any and all suggestions, materials, and recommendations 
to assist and guide us in this endeavor. Specifically, we are seeking:
    1. Information regarding manatee population studies/data, 
particularly for the Southwest Stock;
    2. Information regarding measures, including technological 
measures, that would result in the least practicable impact on manatees 
and their habitat;
    3. Information regarding the effectiveness of mitigating measures 
currently in place;
    4. Information regarding the potential social and economic effects 
of the proposed regulations;
    5. Information regarding means of minimizing potential social and 
economic effects of the negative finding for the Southwest Stock;
    6. Suggested means and measures to report and monitor the effects 
of incidental take on manatees;
    7. Suggested additional research efforts related to the findings of 
this rule; and
    8. Nominations for participants to serve on the Working Group on 
Watercraft-related Incidental Take.
    Additionally, we are requesting specific public comment on the 
following issues pertaining to the economic analysis, which is printed 
in its entirety in the EIS for this action:
    1. Information to better model the change in boater behavior and/or 
the economic surplus impacts of changes in marine access;
    2. Additional estimates of the difference in residential property 
values with and without the potential to construct private boat dock;
    3. Information to estimate the number and regional distribution of 
boaters in Florida who register their boats out-of-state; and
    4. Alternative regional impact models (i.e., alternatives to 
IMPLAN) that would more accurately capture changes in sector outputs 
and employment resulting from the rule.
    Please submit comments as a DOS text file format and avoid the use 
of special characters and encryption. Please also include ``Attn--RIN 
1018-AH86'' and your name and return address in your email message. If 
you do not receive a confirmation from the system that we have received 
your email message, contact us directly by calling the Jacksonville 
Field Office (see ADDRESSES section).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their name and home address from the rulemaking record, which we will 
honor to the extent allowable by law. If you wish us to withhold your 
name and/or address, you must state this prominently at the beginning 
of your comment. However, we will not consider anonymous comments. We 
will make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Public Hearings

    The MMPA provides for one or more public hearings on this proposal, 
if requested. Requests must be filed within

[[Page 69097]]

30 days of the date of this proposal. We have scheduled six public 
hearings for this proposal (see DATES and ADDRESSES sections). We will 
hold additional public hearings at dates, times, and sites to be 
determined, if requested. Requests for additional hearings must be made 
in writing and should be addressed to the Field Supervisor, 
Jacksonville Field Office (see ADDRESSES section). We will publish a 
separate notice in the Federal Register providing information about the 
time and locations of those hearings. Written comments submitted during 
the comment period receive equal consideration with those comments 
presented at a public hearing.

Clarity of Rule

    Executive Order (E.O.) 12866 requires each agency to write 
regulations/notices that are easy to understand. We invite your 
comments on how to make this proposed rule easier to understand, 
including answers to questions such as the following--(1) Are the 
requirements in the proposed rule clearly stated? (2) Does the proposed 
rule contain unnecessary technical language or jargon that interferes 
with the clarity? (3) Does the format of the proposed rule (grouping 
and order of sections, use of headings, paragraphing, etc.) aid or 
reduce its clarity? (4) Is the description of the proposed rule in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? (5) What else could we do to make the 
proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to--Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may e-mail your comments to the following address--
Execsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

    Under EO 12866 (58 FR 51735), we must determine whether this 
proposed regulatory action is ``significant'' and therefore subject to 
Office of Management and Budget (OMB) review and the requirements of 
the EO. The EO defines ``significant regulatory action'' as one that is 
likely to result in a rule that may--(1) have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
transfer fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in EO 12866. In accordance with the criteria in EO 12866, 
this rule is a significant regulatory action. OMB makes the final 
determination under EO 12866.
    a. This proposed rule will not have an annual economic impact of 
over $100 million, but may adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. A 
complete analysis is available in ``Alternative 3--Socioeconomic 
Impacts'' in the Draft Environmental Impact Statement for this proposed 
rulemaking.
    Regulatory impact analysis requires the comparison of expected 
costs for each alternative against a ``baseline,'' which typically 
reflects the regulatory requirements in existence prior to the 
rulemaking. The baseline being considered in this analysis assumes that 
the Service takes no regulatory actions to protect the manatee. In 
fact, existing requirements to protect the manatee do exist, and 
currently impose costs on the regulated community. We were not, 
however, able to monetize the current level of regulatory burden. Thus, 
the cost estimates presented below represent a conservative (i.e., more 
likely to overstate as opposed to understate) estimate of the costs of 
this rule. That is, the rule being proposed will, in some cases, result 
in the continuance of costs experienced in the past (i.e., no change in 
regulatory burden), in some cases a reduction in these costs (i.e., 
will reduce overall regulatory burden), and in some cases an increase 
in the current cost of regulation.
    The purpose of this proposed rule is to authorize where appropriate 
the incidental, unintentional take of small numbers of Florida manatees 
resulting from government activities related to watercraft and 
watercraft access facilities in Florida. This rule may lead to actions 
designed to reduce the watercraft-related take of manatees, including 
designating and enforcing manatee protection areas, managing manatee 
habitat, and promoting manatee related research and education and 
outreach. The rule may also be associated with changes to permit review 
procedures. These actions are undertaken to protect and enhance 
Florida's manatee populations.
    The associated economic impacts are due to the implementation of 
MMPA incidental take regulations and any ancillary changes in permit 
review procedures. The analysis estimates the economic impact for the 
five-year duration of the proposed rule for four Florida stocks of 
manatee: Northwest, Upper St. Johns, Atlantic, and Southwest. Under the 
proposed rule, incidental take of manatees would be authorized in the 
Northwest, Upper St. Johns and Atlantic stocks. As the level of take is 
already meeting the negligible standard in the Northwest and Upper St. 
Johns stocks, no mitigating measures would be required for these 
stocks. The only impacts in the Northwest and Upper St. Johns stocks 
would be related to increased administrative activities associated with 
issuing Letters of Authorization (LOAs). In order to authorize 
incidental take in the Atlantic Stock, some mitigating measures would 
be implemented. The socioeconomic impacts associated with these 
mitigating measures are likely to be minimal. However, the inability to 
authorize incidental take in the Southwest stock may continue the 
substantial economic effects of limiting the authorization and 
construction of boat docks, marinas, boat ramps, and other watercraft 
access facilities.
    The economic effect of the proposed rule, including the economic 
effect associated with the inability to authorize incidental take under 
this rule for the Southwest stock and any associated changes in permit 
review procedures, will most likely be manifested in three ways. First, 
there will be a continuation of administrative costs associated with 
various manatee protection and management measures. Second, there will 
be a reduction in the economic value of some waterfront properties, 
reflecting the loss in opportunity for marine access associated with 
residential development. The effect will be borne by individual 
property owners (in terms of a reduction in the value of their asset), 
but it is equivalently a welfare loss to society, reflecting a 
reduction in the value of services potentially provided by coastal 
properties. This category of impact is estimated by considering 
available data on the difference in waterfront property prices for 
properties with marine access versus waterfront property without marine 
access. Third, there will be a reduction in the supply of marine 
access. This change in supply will be expressed in terms of fewer boat 
ramps, marina slips and residential slips than would exist in the 
baseline (i.e., in the absence of

[[Page 69098]]

limitations on permitting of these facilities). The result of this 
reduction in marine access will be a price effect; that is, the cost of 
access to marine waters for all users will rise. This price impact will 
likely be felt by users in the form of higher rental rates for marina 
facilities, higher prices for commercial ramp facilities, longer wait 
times at ramp facilities, and/or the need for boaters to travel farther 
to obtain marine access. Because data do not exist to estimate these 
expected price effects, this analysis uses proxy measures of economic 
impact, by assuming that some boaters will choose not to boat in 
response to the change in marine access.
    Because the analysis predicts the construction of fewer marine 
access facilities (residential docks, commercial marina slips, boat 
ramps), it is also expected that there would be a secondary effect in 
the form of a reduction in output (and jobs) in the marine construction 
sector from the level that would be expected in the baseline. In 
addition, because the analysis predicts fewer overall boating trips by 
Florida boaters, there will be a reduction in the economic output (and 
jobs) in industries that supply goods and services to marine boaters.
    The economic impacts discussed in this analysis are incurred due to 
restricting permits on marine access facilities in the Southwest stock. 
Based on analysis of historical permitting activities, we assume that 
the Service will not concur with 37 percent of permit applications for 
development activities (i.e., boat docks, marinas, boat ramps) in 
manatee habitat areas in the Southwest stock. Associated costs are due 
to (1) continued administration of manatee protection programs, (2) 
diminishment of recreational boating opportunities due to limits on 
access to the water, (3) reduced waterfront property values, (4) 
decreased recreational boating expenditures, and (5) reduced marine 
construction. The impacts include both economic efficiency (i.e., 
social welfare) changes and distributional impacts (i.e., changes in 
regional economic performance, in the form of reductions in economic 
output and jobs from the baseline). All impacts are summarized in 
Tables 1 and 2.

                                                Table 1.--Summary of Efficiency (Economic Surplus) Losses
                                                               [Millions of 2001 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Nominal impacts                            Discounted impacts
                                                                ----------------------------------------------------------------------------------------
                                                                                                                     Present      Present
                                                                  Year 1    Year 2    Year 3    Year 4    Year 5   value total  value total   Annualized
                                                                                                                        3%           7%           7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northwest......................................................        $0        $0        $0        $0        $0           $0            0           $0
Upper St. Johns................................................         0         0         0         0         0            0            0            0
Atlantic.......................................................         0         0         0         0         0            0            0            0
Southwest......................................................     18-25     20-35     21-44     23-53     25-62       97-198       87-175        21-43
                                                                -----------
    Subtotal...................................................     18-25     20-35     21-44     23-53     25-62       97-198       87-175        21-43
                                                                -----------
Administrative costs\a\........................................        10        10        10        10        10           48           43          10
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Sufficient data do not exist to allow administrative costs to be reported by stock.

                     Table 2.--Summary of Distributional (Regional Economic Effects) Impacts
                                           [Millions of 2001 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                       Nominal impacts
                                           ---------------------------------------------------------------------
                                               Year 1        Year 2        Year 3        Year 4        Year 5
----------------------------------------------------------------------------------------------------------------
Northwest Reduction in economic output....  $00-$00       $00-$00       $00-$00       $00-$00       $00-$00
    Reduction in jobs.....................       0             0             0             0             0
Upper St. Johns Reduction in economic       $00-$00       $00-$00       $00-$00       $00-$00       $00-$00
 output...................................
    Reduction in jobs.....................       0             0             0             0             0
Atlantic Reduction in economic output.....  $00-$00       $00-$00       $00-$00       $00-$00       $00-$00
    Reduction in jobs.....................       0             0             0             0             0
Southwest Reduction in economic output....  $14-$24       $15-$36       $17-$47       $18-$59       $20-$70
    Reduction in jobs.....................     147           170           193           217           240
    Subtotal Reduction in economic output.  $14-$24       $15-$36       $17-$47       $18-$59       $20-$70
    Reduction in jobs.....................     147           170           193           217          240
----------------------------------------------------------------------------------------------------------------
\a\ Distributional impact estimates reflect the expected change in regional economic output and jobs; these
  measures should not be summed with reported efficiency (surplus) effects, but viewed as separate measures of
  economic impact.

    The inability to authorize incidental take for the Southwest stock 
under the proposed rule is expected to result in present value economic 
surplus losses of approximately $87 to $175 million over five years 
(assuming a seven percent discount rate), or $21 to $43 million per 
year (annualized to 2001). Between 40 and 75 percent of these losses 
are associated with the expected reduction in waterfront property 
values. The principal source of uncertainty in these estimates is the 
lack of a model to estimate boaters' responses to a change in the 
supply of marine access facilities.
    In addition, it is expected that the inability to authorize 
incidental take for the Southwest stock under the proposed rule will 
result in a reduction in economic output and employment in each of the 
five years. The impact ranges from approximately $14-$24 million and 
147 jobs in year one, to

[[Page 69099]]

approximately $20-$70 million and 240 jobs in year five. The majority 
of the reduction in economic output in year five is associated with a 
decrease in recreational boating trips in the Southwest region, in the 
high end estimate. Again, the principal source of uncertainty in these 
estimates is the lack of information on the likely behavior of marine 
boaters in response to a change in the supply of marine access.
    It is important to recognize the uncertainty inherent in the 
assumptions underlying this analysis. There are a number of factors 
that may lead this analysis to under- or overestimate economic losses. 
In addition to the sources of uncertainty discussed above, we may 
understate economic losses based on the following assumptions.
    [sbull] The analysis does not account for growth in Florida boaters 
who register their boats out-of-state.
    [sbull] Historical residential permitting rates are assumed to 
continue into the future. This assumption may lead us to understate 
economic losses resulting from permitting restrictions associated with 
the inability to authorize incidental take for the Southwest stock.
    In addition, we may overstate economic losses, for the following 
reasons.
    [sbull] The analysis assumes demand for watercraft access 
facilities is not going to be met in certain areas due to permitting 
restrictions associated with the inability to authorize incidental take 
for the Southwest stock under the rule (i.e., that there is no excess 
marina and boat ramp capacity currently). These assumptions may lead us 
to overstate economic losses.
    [sbull] The model used to estimate regional economic impacts is a 
static model, and thus does not account for adjustments by the economy 
following regulatory or other changes. That is, this model measures the 
effects of a specific policy change at one point in time. Over the 
long-run, the economic losses predicted by the model may be overstated 
as adjustments such as re-employment of displaced workers occurs.
    [sbull] The analysis calculates surplus loss for residential 
property owners who are unable to build a dock on their property, as 
well as surplus losses associated with property value impacts. This may 
result in some degree of double counting of regulatory costs.
    In addition to the caveats noted above, our analysis does not take 
into account any economic benefits. For example, there may be economic 
benefits related to reduced congestion on the water and avoided costs 
for maintaining shoreline protection.
    Administrative Costs. Administrative costs statewide over the next 
five years are associated with the development and enforcement of 
manatee protection areas ($19 million), agency administrative efforts 
($15 million), education and outreach ($3 million), permitting efforts 
($4 million), and additional impacts ($11 million). These would be 
costs incurred by Federal, State and other agencies.
    Efficiency (Economic Surplus) Losses. The inability to authorize 
incidental take for the Southwest stock may limit authorization and 
construction of watercraft access facilities, causing economic impacts 
to waterfront property owners by impacting recreational boating 
activities and waterfront property values. Some homeowners who would 
otherwise have constructed residential dock facilities on their 
properties in the Southwest stock will be unable to obtain required 
permits, thus affecting their recreational boating activities and their 
property values.
    Recreational boating will be impacted based upon the assumption 
that these homeowners would instead rent slips at an existing marina 
facility. Welfare losses incurred by waterfront homeowners are 
associated with marina rentals and the time and effort spent to travel 
to the marina. We estimate that, cumulatively over the five-year 
period, unmet residential slip demand would result in demand for 10,600 
marina slip rentals in the Southwest region. Using the range of annual 
wet and dry marina slip rental costs (from $1,500 to $4,600 per slip 
per year) yields a five-year welfare loss between $13 to $38 million 
(2001 dollars with a seven percent discount rate).
    The inability to authorize incidental take for the Southwest stock 
under the proposed rule would also impact property values for some 
waterfront property owners. Property owners who would otherwise have 
been able to construct residential docking facilities would experience 
a reduction in their property's value. To estimate this loss, we assume 
that a residential boat slip adds approximately $68,000 to the value of 
a waterfront property in Florida. Using the number of waterfront 
property owners that would not be able to construct a residential slip 
(236 annually), we estimate the economic cost to be $66 million over 
five years (2001 dollars with a seven percent discount rate).
    Existing data indicates that marina facilities currently have 
capacity to handle some increase in slip rental demand without new 
construction, but this capacity will not address all of the expected 
demand for slips over the five-year period of the rule. Thus, boat 
owners who otherwise would utilize marina facilities or boat launches 
may be unable to access these facilities.
    This analysis assumes that, as demand for watercraft access 
increases, some boaters will be unable to obtain access, and thus the 
total number of boat trips originating from marinas will decrease. To 
estimate welfare losses to these boaters over the five-year period, we 
apply the willingness to pay for a boating day ($40), multiplied by the 
cumulative future unmet marina slip demand (i.e., 4,500 slips) and the 
average number of boating trips taken per year (60 trips/year). 
Discounting these figures using a seven percent discount rate, the 
welfare loss over the five-year period is estimated to be $8 million 
(2001 dollars).
    Due to the inability to authorize incidental take for the Southwest 
stock under the proposed rule, it is assumed that the Service would not 
concur with 37 percent of permit applications for the construction of 
new boat ramps, resulting in an increased demand for existing boat ramp 
facilities. This demand for existing boat ramp facilities in the 
Southwest region will likely exceed supply in the next five years. As 
boat ramp congestion increases over time, boaters may decide not to use 
a boat ramp to launch their vessel, and may choose to refrain from 
boating. Similar to our estimate of losses to marina users, we estimate 
welfare losses to boat ramp users based on information on projected 
growth in boat ramp usage, and estimates of boating values and boating 
trips per year. Because we lack data on boat ramp capacity, we provide 
a range of surplus loss estimates based on assumptions about the lost 
number of boating trips attributable to the proposed rule. The low end 
is zero while the high-end represents the maximum possible surplus loss 
by assuming that some boat ramp users (equal to the number to newly 
registered boats expected to use ramps) choose not to participate in 
boating activities. This high end assumption likely overestimates the 
actual surplus losses. Applying the value for a day of boating ($40) to 
the five-year cumulative reduction in boat ramp trips (ranging between 
zero and two million), we estimate the welfare loss for boat ramp users 
for the Southwest region. When these figures are discounted using a 
seven percent discount rate, the welfare loss over the five-year period 
ranges from $0 to $62 million (2001 dollars).
    Marine Industry Impacts. The inability to authorize incidental take 
for the Southwest stock under the proposed

[[Page 69100]]

rule would likely lead to two categories of indirect impacts. First, a 
loss of marine access points would result in a decrease in recreational 
boat trips for marina users and boat ramp users. This decrease in 
boating activity may lead to a reduction in expenditures related to 
recreational boating. Second, a limit on the authorization and 
construction of such facilities as boat docks, marinas, and boat ramps 
is likely to result in a reduction in the demand for marine 
construction services.
    This analysis assumes that the inability to authorize incidental 
take for the Southwest stock under the proposed rule will lead to a 
reduction in recreational boating activity, equal to 132,000 trips 
accumulating per year from boat ramps and 18,000 trips accumulating per 
year from marina slips. The decrease in trips from boat ramp users will 
result in an estimated annual decrease in direct expenditures ranging 
from $6 million in year one to $32 million in year five, and a regional 
economic impact ranging from $10 million in year one to $51 million in 
year five. The decrease in trips from marina slip users will result in 
an estimated annual decrease in direct expenditures ranging from $1 
million in year one to $4.3 million in year five, and a regional 
economic impact ranging from $1 million in year one and $7 million in 
year five for marina slip users (2001 dollars).
    In addition to impacts from reduced recreational boating activity, 
marine industry would also be impacted by the reduced demand for marine 
construction. Applying the cost of building docks, marina slips, and 
boat ramps to the projected unmet demand for these marine access 
facilities in the Southwest stock, we estimate the total revenue likely 
to be lost to the marine construction industry to be $7 million 
annually. This decrease in marine construction would lead to a regional 
impact of $13 million annually for five years.
    b. This rule will not create inconsistencies with other agencies' 
actions. The Service will continue to work with State and local 
agencies to monitor and evaluate the need for incidental take 
regulations. The Service recognizes the important role of State and 
local partners, and the Service continues to support and encourage 
State and local measures to improve manatee protection. Furthermore, 
the Service will be able to issue LOAs covering agency activities in 
the Northwest, Upper St. Johns, and Atlantic stocks. The application 
process will likely only cause minimal impacts on applicant agencies.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
There are restrictions to existing human uses of the proposed sites as 
a result of this rule, but the restriction is not expected to have a 
material effect.
    d. This rule will not raise novel legal or policy issues. This 
proposed action will reduce the need for enforcement actions to prevent 
the takings of manatees by harassment resulting form human-related 
waterborne activities in the Northwest, Upper St. John, and Atlantic 
stocks. Within the Southwest stocks, there will be a lack of incidental 
take regulations. However, property owners already experience a variety 
of county and Federal development restrictions due to numerous other 
regulations including: the Endangered Species Act, National Historic 
Preservation Act, Coastal Zone Management Act, Magnuson-Stevens Fishery 
Management and Conservation Act, Fish and Wildlife Coordination Act, 
and the Marine Mammal Protection Act.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. A ``substantial 
number'' of small entities is more than 20 percent of those small 
entities affected by the regulation, out of the total universe of small 
entities in the industry or, if appropriate, industry segment.
    SBREFA amended the RFA to require Federal agencies to provide a 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. According to the Small Business Administration, small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR part 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000.
    We certify that this rule would not have a significant economic 
effect on a substantial number of small entities as defined under the 
RFA Act (5 U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is 
not required. Accordingly, a Small Entity Compliance Guide is not 
required.
    Marine Recreation Impacts. As noted in the previous section, 
reduced recreational boat trips could lead to an estimated $4 to $36 
million decrease in direct expenditures, which would yield a regional 
economic impact to the Southwest stock between $7 to $58 million 
annually for five years. Expenditures that would be affected would be 
for food and lodging, transportation, and other incidental expenses. 
The table below describes the total business activity for these sectors 
in the Southwest stock. Sales in these sectors total to $7 billion. 
Pinellas and Hillsborough counties account for the largest proportion 
of the sales while Glades and De Soto counties account for the smallest 
proportion. The decreased recreational boating expenditures ($4 to $36 
million) would represent less than one percent of the region's total 
sales in these sectors.

[[Page 69101]]

                   Table 3.--Affected Establishments in the Affected Counties in Florida--1997
                                       [Includes NAICS codes 451 and 72] 1
----------------------------------------------------------------------------------------------------------------
                                                                    Total sales                   Establishments
                            Counties                               (thousands of       Total      with less than
                                                                   2001 dollars)  establishments   10 employees
----------------------------------------------------------------------------------------------------------------
Southwest.......................................................      $6,842,646           8,271           4,699
    Manatee.....................................................         298,331             438             255
    Sarasota....................................................         593,332             798             441
    Pasco.......................................................         302,965             495             307
    Pinellas....................................................       1,727,750           2,233           1,314
    Hillsborough................................................       1,574,791           1,774             939
    Lee.........................................................         844,625             934             517
    Collier.....................................................         649,629             603             353
    Charlotte...................................................         155,756             252             138
    De Soto.....................................................          13,335              35              18
    Glades......................................................           5,047              20              14
    Hendry......................................................          19,781              48              33
    Monroe......................................................         657,304             641            370
----------------------------------------------------------------------------------------------------------------
1 NAICS 451--Sporting Goods. NAICS 72--Food and Accommodation.
Source: U.S. Census Bureau, 1997.

    Marine Construction Impacts. In 1997, Construction in Building, 
Developing, and General Contracting (NAICS 233) in Florida accounted 
for $25.5 billion (1997 $) in gross sales, 10,130 establishments, and 
77,238 employees.\1\ Because county-level data is not published for 
Construction, it is difficult to assess the direct effect on individual 
businesses due to decreased marine construction. However, using IMPLAN, 
we can calculate the change in net employment (Table 4). The impact in 
the Southwest stock would be a reduction of approximately $13 million 
in economic activity, which would result in a reduction of 
approximately 123 jobs. Within the construction sector, the decrease in 
the Southwest stock represents less than one percent of gross sales and 
less than one percent of employees in the State of Florida.
---------------------------------------------------------------------------

    \1\ Source: U.S. Census Bureau.

 Table 4.--Annual Regional Economic Impact of a Reduction in Boat Dock,
      Marina, and Slip Construction Expenditures on Southwest Stock
------------------------------------------------------------------------
                                            Decrease in
                                             regional       Decrease in
                                              output         regional
                                           (millions of     employment
                                           2001 dollars)     (persons)
------------------------------------------------------------------------
Initial Expenditures....................            $6.9              46
Indirect Impact.........................             2.9              37
    Induced Impact......................             2.8              40
                                         -----------------
    Total Impact........................            12.6             123
------------------------------------------------------------------------

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This proposed rule:
    a. Will not have a significant impact on a substantial number of 
small entities. As shown above, the inability to authorize incidental 
take for the Southwest stock under this proposed rule may decrease 
recreational boating expenditures and marine construction with a direct 
impact estimated between $11 to $43 million per year (2001 dollars), 
resulting in a total regional economic impact between $20 to $70 
million per year. The cost of the inability to authorize incidental 
take for the Southwest stock under this rule for businesses both small 
and large would be dispersed across Southwest Florida. The Small 
Business Administration defines a ``small business'' as one with annual 
revenue that meets or is below the established size standard, which is 
$29 million for NAICS 23 Construction, $6 million for NAICS 451 
Sporting Goods, and $6 million NAICS 72 Food and Accommodation. An 
unknown portion of the establishments shown in Table 3 could be 
affected by this rule. In Table 3, over half of the establishments have 
less than 10 employees. If the expenditure impact ($11 to $43 million) 
were evenly distributed across the affected establishments, gross sales 
at each would reduced by up to $9,200. If an establishment has gross 
sales of $500,000, the inability to authorize incidental take for the 
Southwest stock under this proposed rule would impact the gross sales 
by just 1.8 percent. Thus, we do not expect the impact to be 
significant.
    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 
unforseen changes in costs or prices for consumers stemming from this 
proposed rule. This proposed rule will have an effect on the costs of 
recreational boating. However, the Service believes that it is unlikely 
that an increased cost of slip rentals or boat ramps will result in a 
significant economic effect. Based on an analysis of public comment, 
further refinement of the impact on this industry may be possible.

[[Page 69102]]

    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, the inability to authorize incidental take for the 
Southwest stock under this proposed rule may result in a loss of jobs 
due to decreased marine construction. The total impact would be less 
than a one percent job reduction in Florida's construction sector.

Energy Supply, Distribution or Use (EO 13211)

    On May 18, 2001, the President issued EO 13211 on regulations that 
significantly affect energy supply, distribution, and use. EO 13211 
requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions.
    In accordance with EO 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' the Service 
asserts that this rule is not likely to have a significant adverse 
effect on the supply, distribution or use of energy. This rulemaking to 
authorize incidental and unintentional take of Florida manatees by U.S. 
citizens engaged in specific activities within certain geographic 
areas, does not impact the Nation's energy resources. This rulemaking 
does not affect areas having oil or gas reserves, whether in production 
or otherwise identified for future use.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. The 
development of incidental, unintentional take regulations for 
government activities related to watercraft and watercraft access 
facilities within certain geographic areas of the species' range in 
Florida for a period of not more than five years, pursuant to the MMPA, 
imposes no new obligations on State or local governments.

Takings

    In accordance with EO 12630 (``Government Actions and Interference 
with Constitutionally Protected Private Property Rights''), this rule 
does not have significant takings implications. A takings implication 
assessment is not required. Any property owners will have navigational 
access and the opportunity to maintain property.

Federalism

    In accordance with EO 13132, this rule does not have significant 
Federalism effects, therefore a Federalism assessment is not required. 
This rule does not require or mandate the State or any other government 
entities to apply for an LOA; therefore, it 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, and in keeping with Department of the Interior policies, we 
coordinated with the State of Florida to the extent possible on the 
development of this proposed rule.

Civil Justice Reform

    In accordance with EO 12988, the Office of the Solicitor has 
determined that the rule does not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order. We 
are proposing to develop incidental, unintentional take regulations for 
government activities related to the operation of watercraft and 
watercraft access facilities within certain geographic areas of the 
species' range in Florida for a period of not more than five years, 
pursuant to the MMPA.

Paperwork Reduction Act of 1995

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is required because we 
do not anticipate that more than ten agencies would apply for an LOA.

National Environmental Policy Act

    The Service has determined that it is necessary to prepare an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 (NEPA). On June 10, 2002 (67 FR 39668), the Service 
announced intent to prepare an EIS to evaluate the effects of 
authorizing the incidental, unintentional take of small numbers of 
Florida manatees within certain regions of Florida. Pursuant to the 
MMPA, the Service is in the process of developing incidental take 
regulations for government activities related to the operation of 
watercraft and watercraft access facilities within three geographic 
areas of the species' range in Florida for a period of not more than 
five years. The public comment period on the notice of intent to 
prepare an EIS ended on July 25, 2002.

Endangered Species Act

    We will be conducting an intra-service consultation under section 7 
of the ESA on this action. The consultation will be concluded prior to 
a determination on issuance of a final rule.

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), EO 13175, and the Department of Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. We have determined that there are no 
tribal lands essential for the conservation of the Florida manatee; 
therefore, proposing to develop incidental take regulations for 
government activities related to the operation of watercraft within 
certain areas of the species' range in Florida, will not adversely 
affect Tribal lands.

Federal Actions To Address Environmental Justice in Minority 
Populations and Low-Income Populations

    The purpose of EO 12906, signed on April 11, 1994, is to bring 
attention to the need for accurate geographic information. This 
information is critical to promote economic development, improve 
stewardship of natural resources, and protect the environment. Modern 
technology now permits improved acquisition, distribution, and 
utilization of geographic (or geospatial) data and mapping.
    The National Performance Review has recommended that the executive 
branch develop, in cooperation with State, local, and tribal 
governments, and the private sector, a coordinated National Spatial 
Data Infrastructure to support public and private sector applications 
of geospatial data in such areas as transportation, community 
development, agriculture, emergency response, environmental management, 
and information technology. The Federal Geographic Data Committee, 
established by the Office of Management and Budget and chaired by the 
Secretary of the Department of the Interior or the Secretary's 
designee, shall coordinate the Federal Government's development of the 
National Spatial Data Infrastructure.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon

[[Page 69103]]

request from the Jacksonville Field Office (see ADDRESSES section).

Author

    The primary authors of this document are Pete Benjamin (904/232-
2580, extension 106), and Stefanie Barrett (904/232-2580, extension 
114), (see ADDRESSES section).

Authority

    The authority to establish regulations that would authorize for the 
next five years the incidental, unintentional take of small numbers of 
Florida manatees is provided by the Marine Mammal Protection Act of 
1972 (16 U.S.C. 1361-1407), as amended.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 
Marine mammals, Oil and gas exploration, Reporting and recordkeeping 
requirements, and Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 18, subchapter B of chapter 
1, title 50 of the Code of Federal Regulations as follows.

PART 18--MARINE MAMMALS

    1. The authority citation for part 18 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. Add subpart K to read as follows:

Subpart K--Taking of Florida Manatees Incidental to Government 
Activities Related to Watercraft Operations and Watercraft Access 
Facilities in Florida

Sec.
18.131 What specified activities does this subpart cover?
18.132 In what specified geographic region does this subpart apply?
18.133 When is this subpart effective?
18.134 How can I obtain a Letter of Authorization?
18.135 What criteria does the Service use to evaluate Letter of 
Authorization requests?
18.136 What does a Letter of Authorization allow?
18.137 What activities are prohibited?
18.138 What monitoring and reporting requirements must I meet?

Sec.  18.131  What specified activities does this subpart cover?

    This subpart applies to the incidental, but not intentional, take 
of small numbers of Florida manatees by Federal, State, and local 
government agencies engaged in activities related to the authorization, 
regulation, or operation of watercraft or watercraft access facilities.

Sec.  18.132  In what specified geographic region does this subpart 
apply?

    (a) This subpart applies to the specified geographic area for three 
stocks of manatees within the state of Florida:
    (1) The Northwest Stock, consisting of the counties along the Gulf 
of Mexico from Escambia County east and south to Hernando County; 
Lafayette and Gilchrist counties; and Marion County adjacent to the 
Withlacoochee River;
    (2) The Upper St. Johns River Stock, consisting of Putnam County 
from Palatka south; Volusia, Flagler, and Marion counties adjacent to 
the St. Johns River or its tributaries; and Lake and Seminole counties; 
and
    (3) The Atlantic Stock, consisting of counties along the Atlantic 
coast from Nassau County south to Miami-Dade County; the portion of 
Monroe County adjacent to the Florida Bay and the Florida Keys; 
Okeechobee County; and counties along the lower portion of the St. 
Johns River north of Palatka, which includes Putnam, St Johns, Clay, 
and Duval counties.
    (b) A fourth region, the Southwest Stock, is excluded from this 
subpart. The Southwest Stock consists of the counties along the Gulf of 
Mexico from Pasco County south to Whitewater Bay in Monroe County; and 
DeSoto, Glades, and Hendry counties.

Sec.  18.133  When is this subpart effective?

    This subpart is effective from [insert date 120 days after date of 
publication of final rule in the Federal Register] through [insert date 
five years from the effective date] for government agencies engaged in 
activities related to the authorization, regulation, or operation of 
watercraft or watercraft access facilities.

Sec.  18.134  Who can obtain a Letter of Authorization?

    (a) Federal, State, or local agencies are eligible to apply for a 
Letter of Authorization.
    (b) You should apply for a Letter of Authorization if you are 
conducting activities that:
    (1) Are related to the authorization, regulation, or operation of 
watercraft or watercraft access facilities in the specified geographic 
area described in Sec.  18.132; and
    (2) May cause the taking of a Florida manatee.
    (c) You must submit an application for a Letter of Authorization to 
our Jacksonville Field Office at least 90 days before the start of the 
proposed activity.
    (d) Your application for a Letter of Authorization must include the 
following information:
    (1) A description of the specific activity or class of activities;
    (2) The dates and duration of the activity and the specific 
geographic region where it will occur;
    (3) The anticipated impact of the activity on manatees;
    (4) The anticipated impact of the activity on manatee habitat and 
the likelihood of restoration of the affected habitat;
    (5) The anticipated impact to manatees from the loss or 
modification of habitat;
    (6) The availability and feasibility (economic and technological) 
of using equipment, methods, and other manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact on the manatee and its habitat;
    (7) Suggested means of accomplishing the necessary monitoring and 
reporting; and
    (8) Suggested means of encouraging and coordinating research 
opportunities, plans, and activities to reduce incidental take.
    (e) We will evaluate each request for a Letter of Authorization 
based on the specific activity and the specific geographic location. 
Each Letter of Authorization will identify allowable conditions or 
methods that are specific to the activity and location.

Sec.  18.135  What criteria does FWS use to evaluate Letter of 
Authorization requests?

    We will evaluate your request for a Letter of Authorization using 
the standards in this section.
    (a) We will determine whether the level of activity you are 
requesting exceeds the level that we consider to have a negligible 
impact on the stock. If the level you are requesting is greater, we 
will re-evaluate our findings to determine if those findings continue 
to be appropriate based on the greater level of activity. Depending on 
the results of the evaluation, we may grant the authorization as 
requested, add further conditions, or deny the authorization.
    (b) In accordance with Sec.  18.27(f)(5), we will make decisions 
concerning withdrawals or suspensions of Letters of Authorization, 
either on an individual or class basis, only after notice and 
opportunity for public comment.
    (c) The requirement for notice and public comment in Sec.  
18.135(b) will not apply if we determine that an emergency exists that 
poses a significant risk to the well-being of the stock.

Sec.  18.136  What does a Letter of Authorization allow?

    (a) Your Letter of Authorization will vary depending upon what you 
request

[[Page 69104]]

in your application. Your Letter will allow the incidental, but not 
intentional, take of Florida manatees when you are carrying out one or 
more of the following activities within one of the specified geographic 
regions defined in Sec.  18.132:
    (1) Regulating watercraft operation, including government programs 
responsible for regulating watercraft speed zones and restricted access 
areas for manatee protection, programs authorizing access or operation 
of watercraft, and programs authorizing marine events (e.g., high-speed 
races, parades, etc.);
    (2) Authorizing or regulating the location and construction of 
watercraft access facilities, including boat ramps, marinas, private 
and public boat docks, and other structures providing watercraft access 
to waters inhabited by manatees;
    (3) Financing, in whole or in part, construction of watercraft 
access facilities;
    (4) Operating government-owned or controlled facilities that 
provide watercraft access; and
    (5) Operating government-owned or controlled watercraft for 
official government business other than that covered under Sec.  
18.22(a).
    (b) You must conduct methods and activities identified in your 
Letter of Authorization in a manner that minimizes, to the greatest 
extent practicable, adverse impacts on Florida manatees and their 
habitat.
    (c) Each Letter of Authorization will identify allowable conditions 
or methods that are specific to the activity and location.

Sec.  18.137  What activities are prohibited?

    (a) You must not intentionally take Florida manatees under this 
subpart.
    (b) Letters of Authorization do not authorize any take that does 
not comply with the terms and conditions of this subpart or the terms 
of the relevant Letter of Authorization.
    (c) This subpart does not authorize the incidental take of Florida 
manatees during the illegal or reckless operation of watercraft or 
unauthorized construction of watercraft access facilities.

Sec.  18.138  What monitoring and reporting requirements must I meet?

    (a) Holders of Letters of Authorization must cooperate with us and 
other designated agencies to monitor the impacts of activities related 
to watercraft operation and watercraft access facilities on Florida 
manatees.
    (b) Holders of Letters of Authorization must designate a qualified 
individual or individuals to observe, record, and report the effects of 
their activities on Florida manatees.

    Dated: November 5, 2002.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-28607 Filed 11-13-02; 8:45 am]

BILLING CODE 4310-55-P