[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Proposed Rules]
[Pages 18572-18576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9224]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH80
Endangered and Threatened Wildlife and Plants; Amendment to
Manatee Protection Areas in Florida
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), propose to amend
our existing regulations for establishing and administering manatee
protection areas. We propose to except specific activities that will
not result in take of manatees from the regulations within the Barge
Canal manatee protection area in Brevard County, Florida. We also
propose to establish a mechanism by which persons wishing to engage in
specific activities within the Barge Canal manatee protection area may
request and, as appropriate, receive a determination from us that the
proposed activity will not result in take of manatees and is,
therefore, excepted from the restrictions imposed by the designation.
DATES: We will consider comments on the proposed rule that are received
by June 17, 2002. We must receive requests for public hearings by May
31, 2002.
ADDRESSES: If you wish to comment, you may submit written comments and
information to the Field Supervisor, Jacksonville Field Office, U.S.
Fish and Wildlife Service, 6620 Southpoint Drive, South, Suite 310,
Jacksonville, Florida 32216. Also, you may fax your comments to 904/
232-2404.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours from 8:00 a.m. to 4:30 p.m., at the above address.
FOR FURTHER INFORMATION CONTACT: David Hankla, Peter Benjamin, or
Cameron Shaw (see ADDRESSES section), telephone 904/232-2580.
SUPPLEMENTARY INFORMATION: The authority to establish protection areas
for the Florida manatee is provided by the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.) (ESA), and the Marine Mammal
Protection Act of 1972, as amended (16 U.S.C. 1361-1407) (MMPA), and is
implemented in 50 CFR, part 17, subpart J. We may, by regulation,
establish manatee protection areas whenever substantial evidence shows
that such establishment is necessary to prevent the taking of one or
more manatees.
Take, as defined by the ESA, means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, collect, or to attempt to engage in
any such conduct (16 U.S.C. 1532 (18)). Harm means an act that actually
kills or injures wildlife (50 CFR 17.3). Such an act may include
significant habitat modification or degradation that actually kills or
injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering. Under the ESA,
harass means an intentional or negligent act or omission that creates
the likelihood of injury to wildlife by annoying it to such an extent
as to significantly disrupt normal behavioral patterns, which include,
but are not limited to, breeding, feeding or sheltering (50 CFR 17.3).
Section 104 of the MMPA sets a general moratorium, with certain
exceptions, on the taking and importation of marine mammals and marine
mammal products and makes it unlawful for any person to take, possess,
transport, purchase, sell, export, or offer to purchase, sell, or
export, any marine mammal or marine mammal product unless authorized.
Take, as defined by section 3(13) of the MMPA means to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal.
Harassment is defined at section 3(18) of the MMPA as any act of
pursuit, torment, or annoyance which--(i) has the potential to injure a
marine mammal or marine mammal stock in the wild; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (16 U.S.C. 1362).
We may establish two types of manatee protection areas--manatee
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR
17.102, is an area in which we have determined that certain waterborne
activities would result in the taking of one or more manatees, or that
certain waterborne activities must be restricted to prevent the taking
of one or more manatees, including but not limited to a taking by
harassment. A manatee sanctuary is an area in which we have determined
that any waterborne activity would result in the taking of one or more
manatees, including but not limited to a taking by harassment. A
waterborne activity is defined as including, but not limited to,
swimming, diving (including skin and SCUBA diving), snorkeling, water
skiing, surfing, fishing, the use of water vehicles and dredging and
filling activities.
We have used manatee protection areas to limit human disturbance
around important warm water manatee aggregation sites and to limit
vessel speeds in waterways where it has been shown that manatee/vessel
collisions have resulted in the injury and death of manatees. We have
established seven manatee sanctuaries in the Crystal River area of
Citrus County, Florida, (50 CFR 17.108), and on Aug. 10, 2001, we
proposed establishing 16 additional manatee protection areas throughout
peninsular Florida (66 FR 42318). On
[[Page 18573]]
January 7, 2002, we published in the Federal Register final
designations for two of those 16 sites--the Barge Canal and Sykes Creek
in Brevard County (67 FR 680).
In response to our proposed rule to establish 16 additional manatee
protection areas, we received comments indicating that certain existing
uses of waters proposed for designation would be eliminated or severely
restricted, and that the loss of these uses would result in substantial
hardship to the affected parties. In regard to the two sites for which
we made final designations, on January 7, 2002, we received a request
for an exemption to our regulations for the Barge Canal. After
reviewing the party's request, we believe that conducting certain
otherwise prohibited activities within the Barge Canal in a manner that
would not result in take of manatees may be possible. This would be the
case if the party could ensure that no manatees were present in the
vicinity when the subject activity was to occur.
We have no desire to unnecessarily restrict or prohibit activities
that will not cause incidental take of manatees. Therefore, we are
proposing to amend our regulations at 50 CFR part 17 to establish a
process for evaluating specific requests to conduct otherwise
prohibited activities within the Barge Canal manatee protection area.
We are proposing to establish this process for the Barge Canal, and
only the Barge Canal, at this time, because it is the sole designated
manatee protection area to date for which we have received a request
for authorization of an otherwise prohibited activity. This proposed
rule amendment would establish a process that will allow the public to
apply for authorization to conduct otherwise prohibited activities
within the Barge Canal, and to allow us to provide such authorization
upon finding that the activities will not result in take of manatees.
Additionally, we intend to establish this process for a limited area
initially, so that we may assess the efficacy of the process in a
controlled fashion, both in terms of ensuring effective manatee
protection and in terms of our ability to effectively administer such a
process, before we consider making it more widely available.
Under our proposed amendment, persons wishing to engage in
otherwise prohibited activities within the Barge Canal would submit a
written request to us. The request would contain a description of the
proposed activity including the timing and duration of the activity,
and specific measures to be undertaken by the requester in association
with the proposed activity to ensure that take of manatees will not
occur. Upon receiving a complete request, we will publish a notice in
the Federal Register advising the public that a request has been
submitted. Within 120 days of receiving a complete request, we will
grant or deny the authorization and include any terms and conditions
appropriate to ensure that no take of manatees will occur. In making
these determinations, we will rely on information contained in the
written request, other information supplied by the requester, and the
best available scientific information related to the effects of the
proposed activity on manatees and means for eliminating any such
effects. Upon approving or denying a request, we will publish
notification of our decision in the Federal Register, and will send
copies of any approvals to appropriate local, State and federal law
enforcement and regulatory agencies.
As stated above, we would approve exceptions to the manatee
protection area restrictions in the Barge Canal under this proposed
process only upon finding that the activity would not cause take of
manatees. Given the broad definitions of ``take'' in both the ESA and
MMPA, we believe that the surest means of eliminating the potential for
take is to ensure that no manatees are present when the subject
waterborne activity is taking place. Ensuring the absence of manatees
will require implementation of an effective manatee monitoring program
to cover the manatee watch area.
Water conditions in the Barge Canal are generally murky, and
because the Barge Canal serves primarily as a travel corridor for
manatees, they are typically submerged for extended periods. Therefore,
reliably detecting the presence of manatees from a boat or from shore
at ground level is exceedingly difficult. Under such conditions,
monitoring of manatees (i.e., manatee watch) must be conducted from an
elevated platform that provides a viewing angle as nearly perpendicular
to the water surface as possible in order to be effective. Platforms
that provide a more oblique viewing angle, such as shore-based or
watercraft-based observation stations, are considerably less effective.
Effective viewing platforms are generally airborne platforms such as
helicopters or small planes, with helicopters being the preferred
option. Surface-based observation points (shore or watercraft-based
observers) may be used to supplement aerial observers. Tethered
airships equipped with video cameras have been used by researchers as
an effective method to observe manatee behavior, and are another
alternative aerial platform. Tethered airships may provide the only
viable aerial platform for sites located in or near restricted
airspaces.
Because manatees are frequently submerged while traveling and water
conditions may make it impossible to observe manatees that are not at
the surface, the area of the manatee watch (watch area) must extend
well beyond the limits of the waterborne activity in order to ensure
that any manatees approaching the area are observed. We generally
recommend that the watch area extend at least 0.5 miles beyond the
limits of the waterborne activity. Observers must have the ability to
effectively communicate with those conducting the activity in order to
ensure that any high-speed vessel operation ceases immediately when a
manatee enters the watch area. Finally, the manatee watch must be
initiated at least 30 minutes prior to the start of the activity to
ensure that any manatees present in the watch area are observed.
In confined waters with limited access, such as the Barge Canal,
employing technologies such as acoustic arrays or sonar devices to
detect manatees as they enter and leave the watch area may be possible;
thereby effectively gating the area of the waterborne activity. Such
devices are currently employed for manatee detection at navigation
locks.
The use of aerial manatee watches and certain technologies, as
discussed above, are examples of types of measures that may be
effective in determining that manatees are not present, and that
otherwise prohibited waterborne activities may therefore occur in the
Barge Canal without the potential for causing take of manatees. Other
methods may be available; however, any method proposed must be able to
meet the basic test of ensuring that the proposed waterborne activity
will not cause the take of manatees.
Public Comments Solicited
We are soliciting comments or suggestions from the public, other
concerned governmental agencies, the scientific community, industry, or
any other interested party concerning this proposed rule. We
particularly seek comments concerning:
1. The reasons why the proposed rule amendment should or should not
be adopted;
2. Current or planned activities within designated or proposed
manatee protection areas and their possible effects on manatees;
[[Page 18574]]
3. Any foreseeable economic or other impacts resulting from the
proposed rule amendment;
4. Potential adverse effects to the manatee associated with the
proposed rule amendment;
5. Any actions that could be considered in lieu of, or in
conjunction with, the proposed amendment that would provide comparable
or improved manatee protection;
6. Potential means of conducting waterborne activities in the Barge
Canal in such a way as to ensure that take of manatees will not occur;
and,
7. The appropriateness of the public notification process.
Our practice is to make all comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
also from the rulemaking record a respondent's identity, as allowable
by law. If you wish for us to withhold your name and/or address, you
must state this prominently at the beginning of your comments. However,
we will not consider anonymous comments. We will make all submissions
from organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The ESA provides for one or more public hearings on this proposal,
if requested. Requests must be filed within 45 days of the date of this
proposal. Requests for hearings must be made in writing and should be
addressed to the Field Supervisor, Jacksonville Field Office (see
ADDRESSES section). We will publish a separate notice in the Federal
Register providing information about the time and location for any
hearings. Written comments submitted during the comment period receive
equal consideration with those comments presented at a public hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
unnecessary technical language or jargon that interferes with the
clarity? (3) Does the format of the proposed rule (grouping and order
of sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Is the description of the proposed rule in the
``Supplementary Information'' section of the preamble helpful in
understanding the proposed rule? (5) What else could we do to make the
proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240.
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this
proposed rule is not a significant regulatory action. The Office of
Management and Budget makes the final determination under Executive
Order 12866.
a. This proposed rule will not have an annual economic impact of
$100 million or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. A cost-benefit
analysis is not required. We do not expect that any significant
economic impacts would result from the proposed rule amendment. The
purpose of this proposed rule is to establish a process that will allow
the public to apply for authorization to conduct otherwise prohibited
activities within the Barge Canal, and to allow us to provide such
authorization upon finding that the activities will not result in take
of manatees.
b. This proposed rule is consistent with the approach used by the
State of Florida to protect manatees, although more protective measures
may be deemed necessary. We recognize the important role of State and
local partners, and we continue to support and encourage State and
local measures to improve manatee protection. Therefore, we are eager
to work with State and local agencies to develop and implement measures
to protect manatees. We welcome their comments and participation to
increase the likelihood of consistency of our final action with
possible future action by the State or local agencies.
c. This proposed rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. No entitlements, grants, user fees, loan programs or
the rights and obligations of their recipients are expected to occur.
d. This proposed rule will not raise novel legal or policy issues.
Regulatory Flexibility Act
I certify that this proposed rule will not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An
initial/final Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required.
On August 10, 2001, we proposed in the Federal Register creation of
16 manatee protection areas in Florida (66 FR 42318), and on January 7,
2002, we published in the Federal Register final designations for two
of those sites--the Barge Canal and Sykes Creek in Brevard County (67
FR 680). In conjunction with the August 10 rulemaking proposal, we
conducted a public hearing in Melbourne, FL, and a 60-day public notice
and comment period to determine the activities occurring in Barge Canal
and Sykes Creek, among other sites, that might be affected by the
creation of manatee protection areas. In our final rule of January 7,
2002, we published information we had compiled on the general economic
characteristics and employment statistics for Brevard County and
concluded that the designation of both sites as manatee refuges would
``not have a significant economic effect on a substantial number of
small entities as defined under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).'' (67 FR 691) The current proposed rule would
create a mechanism whereby entities that receive a letter of
authorization would be excepted from the regulations governing the
Barge Canal manatee protection area. Based on the foregoing, we believe
that this rule will not have a significant economic impact on a
substantial number of small entities as defined under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2). This
proposed rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. It is unlikely that
[[Page 18575]]
unforeseen changes in costs or prices for consumers will stem from this
proposed rule.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. The purpose of this rule is to establish a mechanism by
which persons wishing to engage in specific activities within the Barge
Canal manatee protection area may request and, as appropriate, receive
a determination from us that the proposed activity will not result in
take of manatees and is, therefore, excepted from the restrictions
imposed by the designation.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on the
State of Florida, in the relationship between the Federal Government
and the State, or on the distribution of power and responsibilities
among the various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not contain collections of information that
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et seq. Because this proposed rule affects a limited area (the
Barge Canal), and due to the fact that only one entity has requested an
exception to the restrictions imposed per our designation of the Barge
Canal as a manatee protection area, we anticipate that fewer than 10
local governments, individuals, businesses, or organizations, will seek
exceptions under this rule.
National Environmental Policy Act
We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act (NEPA). We have determined that this
rule is categorically excluded under NEPA because it relates to
policies, directives, regulations and guidelines of an administrative,
financial, legal, technical or procedural nature; or the environmental
effects of which are too broad, speculative or conjectural to lend
themselves to meaningful analysis and will later be subject to the NEPA
process, either collectively or case-by-case (516 DM 2, Appendix 1.10).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have
evaluated possible effects on federally recognized Indian tribes and
have determined that there are no effects.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this proposed
rule amendment is not a significant regulatory action under Executive
Order 12866, and because it establishes a process for excepting from
regulation otherwise prohibited activities within the Barge Canal, it
is not expected to significantly affect energy supplies, distribution,
and use. Therefore, this action is not a significant energy action and
no Statement of Energy Effects is required.
Author
The primary author of this document is Peter Benjamin (see
ADDRESSES section).
Authority
The authority to establish manatee protection areas is provided by
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.), and the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-
1407), as amended.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as follows:
* * * * *
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.108 by revising paragraph (c)(1)(ii) and adding
paragraph (c)(1)(iii) to read as follows:
* * * * *
(ii) Watercraft must proceed at slow speed (channel included) all
year unless the Director has granted authorization to conduct an
otherwise prohibited activity under paragraph (c)(1)(iii) of this
section.
(iii) Any waterborne activity otherwise prohibited by this subpart
may be authorized within the Barge Canal manatee protection area if the
Director finds that such activity will not cause the take of manatees.
(A) Persons who want to conduct otherwise prohibited activities in
the Barge Canal manatee protection area must submit a request for
authorization to the Director. Requests for authorization must include
a description of the proposed activity, including the timing and
duration of the activity, specific measures that will be undertaken in
association with the proposed activity to ensure that take of manatees
does not occur, and any other information that the Director may deem
relevant to the evaluation of the request.
(B) Upon receipt of a complete request for authorization, the
Director will publish notification of receipt of the request in the
Federal Register. To the maximum extent practicable, the Director will
make a determination of approval or denial within 120 days. If the
Director decides to issue to a letter of authorization, it will include
terms and conditions specific to the activity. Examples of such terms
and conditions include, but are not limited to, maximum allowable
vessel speed, time and duration of operation, manatee watch protocols,
use of specialized equipment, and monitoring and reporting
requirements. Letters of
[[Page 18576]]
authorization will specify the period of validity, but will not exceed
60 months. Upon approving or denying a request, the Director will
publish notification of the decision in the Federal Register.
(C) The person conducting the authorized activity must be in
possession of a letter of authorization. Violation of any of the terms
and conditions of the authorization may result in suspension or
withdrawal and appropriate penalties provided in the Marine Mammal
Protection Act (16 U.S.C. 1375) or Endangered Species Act (16 U.S.C.
1531). The Director may revoke a letter of authorization upon
determining that the activity is likely to cause a taking of manatees
or impede the recovery of the species or if the person who has been
issued the letter of authorization is convicted of a violation of State
or Federal conservation laws. All other Federal, State, and local
requirements continue to apply.
(D) The Director will notify Federal and State conservation
agencies and other appropriate law enforcement officials of any letters
of authorization granted under paragraph (c)(1)(iii) of this section.
* * * * *
Dated: April 2, 2002.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-9224 Filed 4-15-02; 8:45 am]
BILLING CODE 4310-55-P