680 Federal Register /Vol. 67, No. 4/Monday, January 7 .

Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002 / Rules and Regulationshuman population growth and visitationis the increase in the number ofwatercraft which ply Florida waters. In1999, 829,971 vessels were registered inthe State of Florida. This is an increasein registered vessels of almost 20percent since 1993 (Florida Fish andWildlife Conservation Commission2000). During this same period, thenumber of watercraft-related manateemortalities has increased by 144percent, from 35 to 82 deaths per year.The Florida Department of CommunityAffairs estimates that, in addition toboats belonging to Florida residents,between 300,000 and 400,000 boatsregistered in other States use Floridawaters each year.The large increase in human use ofwaters inhabited by manatees has haddirect and indirect impacts on thisendangered species. Direct impactsinclude injuries and death from vesselimpacts, deaths and injuries from watercontrol structure operations, lethal andsub-lethal entanglements withcommercial and recreational fishinggear, and alterations of behavior due toharassment. Indirect impacts includehabitat destruction and alteration,decreases in water quality throughoutsome aquatic habitats, decreases inquantity of warm water at natural sites,marine debris, and general disturbancefrom human activities.Over the past 10 years, more than 62percent of watercraft-related manateemortality has taken place in sevenFlorida counties (Duval, Volusia, andBrevard, on the east coast; and Collier,Lee, Charlotte, and Hillsborough on thewest coast) (U.S. Fish and WildlifeService 2001). Manatee mortality hascontinued to climb steadily. Averageannual mortality in the 1990s (227.9)was nearly twice that of the 1980s(118.2), and this trend continued in2000, when 273 dead manatees wererecorded. Total mortalities over the past4 years have averaged 45 percent higherthan in the early 1990s. When therecord high total of 1996 is added (theyear in which the red tide die-offinflated total mortality to 416 animals),average annual mortality over the past 5years has been nearly 60 percent greaterthan in the early 1990s (MarineMammal Commission 2001).The continuing increase in thenumber of recovered dead manateesthroughout Florida has been interpretedas evidence of increasing mortality rates(Ackerman et al. 1995). Between 1976and 1999, the number of carcassescollected in Florida increased at a rateof 5.8 percent per year, and deathscaused by watercraft strikes increasedby 7.2 percent per year (U.S. Fish andWildlife Service 2001). Because theVerDate 11 MAY 200007:39 Jan 05, 2002Jkt 197001manatee has a low reproductive rate, adecrease in adult survivorship due towatercraft collisions could contribute toa long-term population decline (O’Sheaet al. 1985). It is believed that a 1percent change in adult survival likelyresults in a corresponding change in therate of population growth or decline(Marmontel et al. 1997).Collisions with watercraft are thelargest source of human-related manateedeaths. Data collected during manateecarcass salvage operations in Floridaindicate that a total of 979 manatees(from a total carcass count of 4,021) areconfirmed victims of collisions withwatercraft since 1976. This number maynot accurately represent the actualnumber of watercraft-related mortalitiessince many of the mortalities listed as‘‘undetermined causes’’ show evidenceof collisions with vessels. Collisionswith watercraft comprise approximately24 percent of all manatee mortalitiessince 1976. The last 5 years have beenrecord years for the number ofwatercraft-related mortalities, andwatercraft-related deaths have become alarger proportion of total mortality.Since 1998, watercraft-related deathshave represented about 30 percent of allmortality, a 5 percent increasecompared to the early 1990s. During the1980s and 1990s the manateepopulation apparently grew; however, ifpopulation growth rate levels off andmanatee mortality continues to increase,a decline in abundance is inevitable(Marine Mammal Commission 2001).The second largest cause of humanrelated manatee mortality is entrapmentin water control structures andnavigation locks (U.S. Fish and WildlifeService 2001). Manatees may be crushedin gates and locks or may be trapped inopenings where flows prevent themfrom surfacing to breathe. Locks andgates were responsible for 159 manateedeaths between 1976 and 1999 (U.S.Fish and Wildlife Service 2000). Whilethere are no well-defined patternscharacterizing these mortalities, it isbelieved that periods of low rainfallincrease the likelihood of manateesbeing killed in these structures. Theseperiods require more frequent, largescale movements of water, whichrequire more frequent gate openings andclosings in areas that attract manateessearching for fresh water.Manatees are also affected by otherhuman-related activities. Impactsresulting from these activities includedeath caused by entrapment in pipesand culverts; entanglement in ropes,lines, and nets; ingestion of fishing gearor debris; vandalism; and poaching.These activities have accounted for 106manatee deaths since 1976, an averagePO 00000Frm 00033Fmt 4700Sfmt 4700681of 4 deaths per year. As with watercraftrelated mortalities, other human-relateddeaths also appear to be increasing, with31 deaths, approximately 3 percent ofthe total mortalities, recorded between1997 and 2000 attributed to thesesources. This is an average of 7.75deaths per year over the last 4 yearsattributable to other human-relatedactivities.Harassment of manatees is a concern,particularly when it impedes the use ofwarm water areas critical to manateesurvival during periods of cold weather.In particular, an increasing number ofswimmers and divers are visitingFlorida’s waters to view and swim withthe manatees. The presence of largenumbers of people and the resultantdisturbance has been documented tocause manatees to leave warm waterareas (Jay Gorzaleny, Mote MarineLaboratory, personal communication2001). On occasion, divers andswimmers have been observedattempting to pet, chase, ride, and evensit on manatees. This type of harassmentmay cause the manatee to leave warmerwater to find relief from the harassmentin colder areas where there are fewerpeople. Such responses, if they areinstigated by human harassment, areconsidered take under the ESA andMMPA.In response to these problems and thewatercraft-related impacts in particular,conservation agencies, such as theService and the Florida Fish andWildlife Conservation Commission(FWC), have increased their emphasison enforcement and compliance withmanatee speed zones by adding newofficers, conducting enforcement taskforce initiatives, increasing overtime,and increasing the proportion of lawenforcement time devoted to manateeconservation. We are also continuing toevaluate development proposals thatwould increase watercraft traffic inmanatee habitats where speed zones,signage, and enforcement areinsufficient. To further address thenegative effects of human actions onmanatees, we are establishing twoadditional manatee refuges in Florida.The authority to establish protectionareas for the Florida manatee isprovided by the ESA and the MMPA,and is codified in 50 CFR part 17,subpart J. We may, by regulation,establish manatee protection areaswhenever there is substantial evidenceshowing such establishment isnecessary to prevent the taking of one ormore manatees.We may establish two types ofmanatee protection areas—manateerefuges and manatee sanctuaries. Amanatee refuge, as defined in 50 CFRE:\FR\FM\07JAR1.SGMpfrm07PsN: 07JAR1

682Federal Register / Vol. 67, No. 4 / Monday, January 7, 2002 / Rules and Regulations17.102, is an area in which we havedetermined that certain waterborneactivities would result in the taking ofone or more manatees, or that certainwaterborne activities must be restrictedto prevent the taking of one or moremanatees, including but not limited toa taking by harassment. A manateesanctuary is an area in which we havedetermined that any waterborne activitywould result in the taking of one ormore manatees, including but notlimited to a taking by harassment. Awaterborne activity is defined asincluding, but not limited to,swimming, diving (including skin andSCUBA diving), snorkeling, waterskiing, surfing, fishing, the use of watervehicles, and dredging and fillingactivities.Throughout the development of thisrule, many commenters cited theincrease in the overall size of themanatee population as evidence that theestablishment of additional manateeprotection areas is not needed. Recentdata regarding the size of the manateepopulation are very encouraging, andindicate that local, State, and Federalefforts to recover the manatee areworking. However, we remainconcerned that waterborne activities areresulting in take of manatees, which isnot allowed under the ESA and MMPA,and which may slow or even impedefurther recovery. Our obligation underthe ESA and MMPA is to furthermanatee recovery, so that we maysomeday achieve our goal of removingthe species from the List of Endangeredand Threatened Wildlife and Plants.This includes using available tools, aspracticable, to reduce the level ofhuman-related manatee mortality. Theestablishment of manatee protectionareas is one such tool. We are pursuingother complementary toolssimultaneously, as described in the nexttwo sections.Synopsis of Manatee LawsuitSettlementIn Save the Manatee Club, et al. v.Ballard, et al, Civil No. 00–00076 EGS(D.D.C.), several organizations andindividuals filed suit against the Fishand Wildlife Service and the U.S. ArmyCorps of Engineers (Corps) allegingviolations of the Endangered SpeciesAct (ESA), Marine Mammal ProtectionAct (MMPA), National EnvironmentalPolicy Act (NEPA), and AdministrativeProcedure Act (APA). Four groupsrepresenting development and boatinginterests intervened. Followingextensive negotiations, a SettlementAgreement was approved by the courton January 5, 2001. Under the terms ofVerDate 11 MAY 200007:39 Jan 05, 2002Jkt 197001the settlement, we agreed to thefollowing: Submit a proposed rule for newrefuges and sanctuaries to the FederalRegister by April 2, 2001, and submit afinal rule by September 28, 2001.Subsequent to the Federal settlement,the FWC also voted to settle Save theManatee v. Egbert, Case No. 90–00–400CIV17–WS (N.D.Fla) (the State case).That settlement, which was entered bythe court on November 7, 2001, calls forvery similar protective measures inmany of the locations included in ourproposed rule. As a result of thesesimultaneous processes, the parties inthe Federal lawsuit agreed to extend theApril 2 deadline in an attempt tonegotiate a means to avoid duplicationof effort and better serve the public.Subsequent negotiations resulted inadditional extensions, which resulted inthe proposed rule being submitted to theFederal Register on August 3, 2001. Wealso agreed to evaluate the propriety ofinvocation of our emergency sanctuary/refuge designation authority. Wepublished an advance notice ofproposed rule-making in the FederalRegister on September 1, 2000, and helda series of six public workshops inDecember 2000. We received 1,752comments in response to the advancenotice, and 396 people attended thepublic workshops. The proposed rulewas published in the Federal Registeron August 10, 2001 (66 FR 42318). A 60day comment period followed thispublication. In addition, we held fourpublic hearings in September 2001, toprovide the public an opportunity tocomment. We held these hearings inCrystal River, Clearwater, Venice, andMelbourne, Florida. As a result of boththe public hearings and writtensubmissions, we received approximately3,500 comments. These comments aresummarized and responded to in the‘‘Summary of Comments andRecommendations’’ section of this rule. Revise the Manatee Recovery Plan.We were required, by December 1, 2000,to make a draft revised Recovery Planavailable for public review andcomment, and to circulate our finalrevised Recovery Plan for signature nolater than February 28, 2001. Wepublished a draft revised Recovery Planon November 30, 2000, and receivedover 500 comments. The Plaintiffs andInterveners agreed to new dates fordevelopment of a second draft andfinalization of the Recovery Plan. As aresult of the comments, we madesubstantial revisions to the RecoveryPlan and subsequently issued a seconddraft for public review and comment onJuly 10, 2001. The Recovery Plan wasfinalized on October 30, 2001.PO 00000Frm 00034Fmt 4700Sfmt 4700 Pursue a rulemaking proceeding toadopt incidental take regulations underthe MMPA. By March 6, 2001, we wererequired to submit to the FederalRegister an advance notice of proposedrulemaking; invite by letter the Corpsand other entities that conduct activitieswhich may influence factors relating toeffects of watercraft on manatees toparticipate in the MMPA rulemakingprocess; and promptly provide copies ofthe Federal Register notice andinvitation letters to the Plaintiffs andInterveners. The advance notice waspublished in the Federal Register onMarch 12,

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,