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Endangered and Threatened Wildlife and Plants; Establishment of an Additional Manatee Protection Area in Lee County, Florida
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 6, 2004 (Volume 69, Number 151)]
[Rules and Regulations]
[Page 48115-48127]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au04-15]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT65
Endangered and Threatened Wildlife and Plants; Establishment of
an Additional Manatee Protection Area in Lee County, Florida
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Emergency rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), as required by
regulation, hereby provide notice of the termination of the emergency
establishment of the Pine Island-Estero Bay Refuge, which was created
when a rule was published in the Federal Register on April 7, 2004, and
will expire effective August 5, 2004. We are publishing a proposed rule
to establish these areas as the Pine Island-Estero Bay Manatee Refuge
by standard rulemaking elsewhere in this issue of the Federal Register.
In order to provide for continued protection of this area during the
rulemaking process, while allowing adequate time for public hearings
and comments on the proposed designation, we are hereby using our
emergency authority to re-establish the temporary Pine Island-Estero
Bay Refuge, effective August 6, 2004. The area established by this rule
will be a manatee refuge and watercraft will be required to proceed at
either ``slow speed'' or at not more than 25 miles per hour, on an
annual or seasonal basis, as marked. While adjacent property owners
must comply with the speed restrictions, the designation will not
preclude ingress and egress to private property. This action is
authorized under the Endangered Species Act of 1973, as amended (ESA),
and the Marine Mammal Protection Act of 1972, as amended (MMPA), based
on our determination that there is substantial evidence of imminent
danger of taking one or more manatees and the emergency designation of
a manatee refuge is necessary to prevent such taking. In evaluating the
need for emergency designation of this manatee protection area, we
considered the biological needs of the manatee, the level of take at
these sites, and the likelihood of additional take of manatees due to
human activity. We anticipate making a final determination on these
sites in a final rule within the 120-day effective period of this
emergency designation, unless State or local governments implement
measures at these sites that would, in our view, make such
establishment unnecessary to prevent the taking of one or more
manatees.
DATES: In accordance with 50 CFR 17.106, the effective date for this
action will be August 6, 2004, which will also be the date of
publication in the following newspapers: Fort Myers News-Press; Cape
Coral Daily Breeze; and Naples Daily News. This emergency action will
remain in effect for 120 days after publication in the Federal Register
(until December 6, 2004).
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the South Florida ES
Field Office, U.S. Fish and Wildlife Service, 1339 20th Street, Vero
Beach, Florida 32960.
FOR FURTHER INFORMATION CONTACT: Jay Slack or Bert Byers (see ADDRESSES
section), telephone (772) 562-3909.
SUPPLEMENTARY INFORMATION:
Background
The West Indian manatee (Trichecus manatus) is federally listed as
an endangered species under the ESA (16 U.S.C. 1531 et seq.) (32 FR
4001) and is further protected under the MMPA (16 U.S.C. 1361-1407).
Manatees reside in freshwater, brackish, and marine habitats in coastal
and inland waterways of the southeastern United States. The majority of
the population can be found in waters of the State of Florida
throughout the year, and nearly all manatees winter in peninsular
Florida during the winter months. The manatee is a cold-intolerant
species and requires warm water temperatures generally above 20[deg]
Celsius (68[deg]
Fahrenheit) to survive during periods of cold weather.
During the winter months, most manatees rely on warm water from natural
springs and industrial discharges for warmth. In warmer months, they
expand their range and are occasionally seen as far north as Rhode
Island on the Atlantic Coast and as far west as Texas on the Gulf
Coast.
Recent information indicates that the overall manatee population
has grown since the species was listed (Service 2001). However, in
order for us to determine that an endangered species has recovered to a
point that it warrants removal from the List of Endangered and
Threatened Wildlife and Plants, the species must have improved in
status to the point at which listing is no longer appropriate under the
criteria set out in section 4(a)(1) of the ESA.
Human activities, and particularly waterborne activities, can
result in the take of manatees. Take, as defined by the ESA, means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect,
or to attempt to engage in any such conduct. Harm means an act which
kills or injures wildlife (50 CFR 17.3). Such an act may include
significant habitat modification or degradation that kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding, or sheltering. Harass includes intentional
or negligent acts or omissions that create the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patterns, which include, but are not limited to,
breeding, feeding, or sheltering (50 CFR 17.3).
The MMPA sets a general moratorium, with certain exceptions, on the
take 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 by 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.
Human use of the waters of the southeastern United States has
increased as a function of residential growth and increased visitation.
This increased use is particularly evident in the State of Florida. The
population of Florida has grown by 124 percent since 1970 (6.8 million
to 15.2 million, U.S. Census Bureau) and is expected to exceed 18
million by 2010, and 20 million by the year 2020. According to a report
by the Florida Office of Economic and Demographic Research (2000), it
is expected that, by the year 2010, 13.7 million people will reside in
the 35 coastal counties of Florida. In a parallel fashion to
residential growth, visitation to Florida has also increased. It is
expected that Florida will have 83 million visitors annually by the
year 2020, up from 48.7 million visitors in 1998. In concert with this
increase of human population growth and visitation is the increase in
the number of watercraft that travel Florida waters. In 2003, 743,243
vessels were registered in the State of Florida. This represents an
[[Page 48116]]
increase of 26 percent since 1993. The number of vessels reported here
differs from that reported in our April 7, 2004, rule establishing a
temporary, emergency refuge on these sites because new data have since
become available from the State of Florida. The apparent decline in
number of vessels registered between 2001 and 2003 is due to a change
in the way registrations were counted. The earlier (2001) numbers
included all registrations occurring during the year and, therefore,
double-counted vessels that were sold and re-registered during the same
year.
The large increase in human use of manatee habitat has had direct
and indirect impacts on this endangered species. Direct impacts include
injuries and deaths from watercraft collisions, deaths and injuries
from water control structure operations, lethal and sublethal
entanglements with commercial and recreational fishing gear, and
alterations of behavior due to harassment. Indirect impacts include
habitat destruction and alteration, including decreases in water
quality throughout some aquatic habitats, decreases in the quantity of
warm water in natural spring areas, the spread of marine debris, and
general disturbance from human activities.
Federal authority to establish protection areas for the Florida
manatee is provided by the ESA and the MMPA and is codified in 50 CFR,
part 17, subpart J. We have discretion, by regulation, to establish
manatee protection areas whenever there is substantial evidence showing
such establishment is necessary to prevent the taking of one or more
manatees. In accordance with 50 CFR 17.106, areas may be established on
an emergency basis when such takings are imminent.
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, taking by
harassment. A manatee sanctuary, as defined in 50 CFR 17.102, 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, 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 dredge and fill activities.
Reasons for Emergency Determination
In deciding to implement this emergency rule, we assessed the
effects of a recent State court ruling overturning critically
important, State-designated manatee protection zones in Lee County. In
this case, (State of Florida Fish and Wildlife Conservation Commission
(FFWCC) v. William D. Wilkinson, Robert W. Watson, David K. Taylor,
James L. Frock (2 Cases), Jason L. Fluharty, Kenneth L. Kretsh, Harold
Stevens, Richard L. Eyler, and John D. Mills), who were issued
citations for alleging different violations of Rule 68C-22.005 (Rule),
challenged the Rule adopted by the FFWCC regulating the operation and
speed of motorboat traffic in Lee County waters to protect manatees. In
its ruling the court determined that under Florida law the FFWCC can
regulate the operation and speed of motorboats in order to protect
manatees from harmful collisions with motorboats, however: (1) In the
area to be regulated, manatee sightings must be frequent and, based
upon available scientific information, it has been determined that
manatees inhabit this these areas on a regular, periodic or continuous
basis; and (2) when the FFWCC adopts rules it must consider the rights
of voters, fishermen and water-skiers and the restrictions adopted by
the FFWCC must not unduly interfere with those rights. In this instance
the court found that the Rule for four of the regulated areas did not
meet the State standard for the frequency of sightings and the rule
unduly interfered with the rights of voters. Thus, the designated
manatee protection zones were invalidated and the citations were
dismissed.
The legal basis for the action to be taken by the Service differs
markedly from that in the FFWCC v. Wilkinson case. The Service's action
is not based on State law but rather is based upon a Federal
regulation, 50 CFR 17.106(a) which provides the standard for an
emergency designation of a protected area. Specifically, this
regulation provides that a manatee protection area may be established
``* * * at any time [the Director]
determines that there is substantial
evidence that there is imminent danger of a taking of one or more
manatees, and that such establishment is necessary to prevent such a
taking.''
We also reviewed the best available information to evaluate manatee
and human interactions in these areas. Manatees are especially
vulnerable to fast-moving power boats. The slower a boat is traveling,
the more time a manatee has to avoid the vessel and the more time the
boat operator has to detect and avoid the manatee. Nowacek et al.
(2000) documented manatee avoidance of approaching boats. Wells et al.
(1999) confirmed that, at a response distance of 20 meters, a manatee's
time to respond to an oncoming vessel increased by at least 5 seconds
if the vessel was traveling at slow speed. Therefore, the potential for
take of manatees can be greatly reduced if boats are required to travel
at slow speed in areas where manatees can be expected to occur.
The waterbodies encompassed in this emergency designation receive
extensive manatee use either on a seasonal or year-round basis as
documented in radio telemetry and aerial survey data (FWCC 2003). The
areas contain feeding habitats and serve as travel corridors for
manatees (FWCC 2003). They have also been regulated at either slow
speed or with a 25-mile-per-hour speed limit by State government since
1999 prior to the State court ruling in (FFWCC) v. William D. Wilkinson
et al. in December, 2003. Without this emergency Federal designation,
watercraft can be expected to travel at high speeds in areas frequented
by manatees, which would result in the take of one or more manatees. In
fact, boat operators could inadvertently be encouraged to travel at
high speeds. While the State court invalidated speed limits in the
areas adjacent to navigation channels, it did not invalidate the 25-
mile-per-hour speed limit in the navigation channels that traverse the
affected area. Therefore, the speed limit in the navigation channel is
now lower than that of the surrounding, shallower areas. As a result,
shallow-draft high-speed boats capable of traveling outside the
navigation channels can be expected to be operated at high speeds
(greater than 25 miles per hour) in the areas more likely to be
frequented by manatees.
There is a history of manatee mortalities in the area as a
result of collisions with watercraft. At least 18 carcasses of
manatees killed in collisions with watercraft have been recovered in
or immediately adjacent to the designated areas since 1999
(http://www.floridamarine.org, 2004), 
with four carcasses
recently recovered in close proximity to the sites following the State
court action. Necropsies revealed that these animals died of wounds
received from boat collisions. On August 6, 2004, we published a proposed
rule to establish the Pine Island-Estero Bay Manatee Refuge as a permanent
manatee protected area by
[[Page 48117]]
normal rulemaking procedures. However, the current emergency refuge is
temporary and will expire on August 5, 2004, prior to the closing of
the public review and comment period on the proposed rule. Without the
emergency designation, these areas would not receive the needed
protection because of the time necessary to complete the normal
rulemaking process.
For these reasons, we believe that there is imminent danger of take
of one or more manatees in these areas and emergency designation of a
manatee refuge is necessary to prevent such taking. Manatees utilize
these areas, there is a history of take at these sites, future take is
imminent, protection measures are insufficient, and we do not
anticipate any alternative protection measures being enacted by State
or local government in sufficient time to reduce the likelihood of take
occurring.
Effective Date
We are making this rule effective upon publication. In accordance
with the Administrative Procedure Act, we find good cause as required
by 5 U.S.C. 553(d)(3) to make this rule effective sooner than 30 days
after publication in the Federal Register. As discussed under ``Reasons
for Emergency Determination,'' the emergency manatee refuge established
April 7, 2004, is temporary, lasting only through August 5, 2004. Since
the standard rulemaking process for creating a permanent refuge here
could not be completed before expiration of the emergency refuge, re-
establishment of the emergency manatee protection area must be
effective August 6, 2004, in order to prevent a lapse in protection.
Any further delay in making this manatee refuge effective would result
in further risks of manatee mortality, injury, and harassment during
the period of delay. In view of the finding of substantial evidence
that taking of manatees is imminent and in fact has already occurred in
or in close proximity to the site, we believe good cause exists to make
this rule effective August 6, 2004. For the same reasons, we also
believe that we have good cause under 5 U.S.C. 553(b)(3)(B) to issue
this rule without prior notice and public procedure. We believe such
emergency action is in the public interest because of the imminent
threat to manatees and the time required to complete the standard
rulemaking process, which would probably result in additional take of
manatees. This rule does not supersede any more stringent State or
local regulations.
Future Federal Actions
Once this emergency rule is in effect, the emergency designation is
temporary and applies to these areas for only 120 days. We believe the
danger to manatees due to watercraft collisions in the Pine Island-
Estero Bay area is not only imminent, but also ongoing and year-round.
Accordingly, we are proceeding with the normal rulemaking process to
establish an additional manatee protection area in Lee County, Florida,
in accordance with 50 CFR 17.103. As part of this process, we have
published a proposed rule in the Federal Register on August 6, 2004. We
anticipate publishing a final rule prior to December 4, 2004, when this
emergency rule expires.
Definitions
``Planing'' means riding on or near the water's surface as a result
of the hydrodynamic forces on a watercraft's hull, sponsons
(projections from the side of a ship), foils, or other surfaces. A
watercraft is considered on plane when it is being operated at or above
the speed necessary to keep the vessel planing.
``Slow speed'' means the speed at which a watercraft proceeds when
it is fully off plane and completely settled in the water. Due to the
different speeds at which watercraft of different sizes and
configurations may travel while in compliance with this definition, no
specific speed is assigned to slow speed. A watercraft is not
proceeding at slow speed if it is: (1) on a plane, (2) in the process
of coming up on or coming off of plane, or (3) creating an excessive
wake. A watercraft is proceeding at slow speed if it is fully off plane
and completely settled in the water, not creating an excessive wake.
``Wake'' means all changes in the vertical height of the water's
surface caused by the passage of a watercraft, including a vessel's bow
wave, stern wave, and propeller wash, or a combination of these.
``Water vehicle, watercraft,'' and ``vessel'' include, but are not
limited to, boats (whether powered by engine, wind, or other means),
ships (whether powered by engine, wind, or other means), barges,
surfboards, personal watercraft, water skis, or any other device or
mechanism the primary or an incidental purpose of which is locomotion
on, or across, or underneath the surface of the water.
Area Designated as a Manatee Refuge by Emergency Rule
Pine Island-Estero Bay Manatee Refuge
The Pine Island-Estero Bay Manatee Refuge encompasses water bodies
in Lee County including portions of Matlacha Pass and San Carlos Bay
south of Green Channel Marker ``77'' and north of the Intracoastal
Waterway, portions of Pine Island Sound in the vicinity of York and
Chino Islands, portions of Punta Rassa Cove and Shell Creek in San
Carlos Bay and the mouth of the Caloosahatchee River, and portions of
Estero Bay and associated water bodies. These water bodies are
designated, as posted, as either slow speed or with a speed limit of 25
miles per hour, on either a seasonal or annual basis. Legal
descriptions and maps are provided in the ``Regulation Promulgation''
section of this notice.
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 emergency rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
emergency rule clearly stated? (2) Does the emergency rule contain
unnecessary technical language or jargon that interferes with the
clarity? (3) Does the format of the emergency rule (grouping and order
of sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Is the description of the emergency rule in the
Supplementary Information section of the preamble helpful in
understanding the proposed rule? (5) What else could we do to make the
emergency rule easier to understand?
Send a copy of any comments that affect how we could make this
emergency 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 rule
is not a significant regulatory action. The Office of Management and
Budget makes the final determination under Executive Order 12866.
a. Based on experience with similar rulemakings in this area, this
rule will not have an annual economic impact of over $100 million or
adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. It is not expected that any
[[Page 48118]]
significant economic impacts would result from the establishment of a
manatee refuge (approximately 30 river miles) in Lee County in the
State of Florida.
The purpose of this rule is to establish an emergency manatee
refuge in Lee County, Florida. We are preventing the take of manatees
by controlling certain human activity in this County. For the manatee
refuge, the areas are year-round or seasonal slow speed, or year-round
or seasonal speed limits of 25 miles per hour. Affected waterborne
activities include, but are not limited to, transiting, cruising, water
skiing, fishing, marine construction, and the use of all water
vehicles. This rule will impact recreational boaters, commercial
charter boats, and commercial fishermen, primarily in the form of
restrictions on boat speeds in specific areas. We will experience
increased administrative costs due to this rule. Conversely, the rule
may also produce economic benefits for some parties as a result of
increased manatee protection and decreased boat speeds in the manatee
refuge areas.
Regulatory impact analysis requires the comparison of expected
costs and benefits of the rule against a ``baseline,'' which typically
reflects the regulatory requirements in existence prior to the
rulemaking. For purposes of this analysis, the baseline assumes that
the Pine Island-Estero Bay area has no regulating speed limits other
than the 25 miles per hour in the navigation channels. The State-
designated speed zones, other than in the navigation channels, have
been lifted by a State Court decision. However, residents and other
water users have lived with speed restrictions in this area for many
years and have established business and recreational patterns on the
water to accommodate their needs and desires for water-based
recreation. Even though the baseline is set at no speed zones, the
actual economic effects may very well be insignificant for this 120-day
emergency rule because almost all users have been previously subject to
these restrictions. Thus, the rule is expected to have only an
incremental effect. As discussed below, the net economic impact is not
expected to be significant, but cannot be monetized given available
information.
The economic impacts of this rule would be due to the changes in
speed zone restrictions in the manatee refuge areas. These speed zone
changes are summarized in the emergency rule.
In addition to speed zone changes, the rule no longer allows for
the speed zone exemption process in place under State regulations.
Florida's Manatee Sanctuary Act allows the State to provide exemptions
from speed zone requirements for certain commercial activities,
including fishing and events such as high-speed boat races. Under State
law, commercial fishermen and professional fishing guides can apply for
permits granting exemption from speed zone requirements in certain
counties. Speed zone exemptions were issued to 27 permit holders in the
former State zones that comprise the proposed manatee refuge area. One
permit holder from previous years did not renew at the last
opportunity.
In order to gauge the economic effect of this rule, both benefits
and costs must be considered. Potential economic benefits related to
this rule include increased manatee protection and tourism related to
manatee viewing, increased number of marine construction permits
issued, increased fisheries health, and decreased seawall maintenance
costs. Potential economic costs are related to increased administrative
activities related to implementing the rule and affected waterborne
activities. Economic costs are measured primarily by the number of
recreationists who use alternative sites for their activity or have a
reduced quality of the waterborne activity experience at the designated
sites. In addition, the rule may have some impact on commercial fishing
because of the need to maintain slower speeds in some areas. The
extension of slower speed zones in this rule is not expected to affect
enough waterborne activity to create a significant economic impact
(i.e., an annual impact of over $100 million).
Economic Benefits
We believe that the designation of the Pine Island-Estero Bay
Manatee Refuge in this rule will increase the level of manatee
protection in these areas. A potential economic benefit is increased
tourism resulting from an increase in manatee protection. To the extent
that some portion of Florida's tourism is due to the existence of the
manatee in Florida waters, the protection provided by this rule may
result in an economic benefit to the tourism industry. We are not able
to make an estimate of this benefit given available information.
In addition, due to reductions in boat wake associated with speed
zones, property owners may experience some economic benefits related to
decreased expenditures for maintenance and repair of shoreline
stabilization structures (i.e., seawalls along the water's edge). Speed
reductions may also result in increased boater safety. Another
potential benefit of slower speeds is that fisheries in these areas may
be more productive because of reduced disturbance. These types of
benefits cannot be quantified with available information.
Based on previous studies, we believe that this rule produces some
economic benefits. However, given the lack of information available for
estimating these benefits, the magnitude of these benefits is unknown.
Economic Costs
The economic impact from the designation of a manatee protection
area affects boaters in these areas, in that boats are required to go
slower than under current conditions. Some impacts may be felt by
recreationists who have to use alternative sites for their activity or
who have a reduced quality of the waterborne activity experience at the
designated sites because of the rule. For example, the extra time
required for anglers to reach fishing grounds could reduce onsite
fishing time and could result in lower consumer surplus for the trip.
Other impacts of the rule may be felt by commercial charter boat
outfits, commercial fishermen, and agencies that perform administrative
activities related to implementing the rule.
Affected Recreational Activities
For some boating recreationists, the inconvenience and extra time
required to cross additional slow speed areas may reduce the quality of
the waterborne activity or cause them to forgo the activity. This will
manifest in a loss of consumer surplus to these recreationists. In
addition, to the extent that recreationists forgo recreational
activities, this could result in some regional economic impact. In this
section, we examine the waterborne activities taking place in each area
and the extent to which they may be affected by designation of the
manatee refuges. The resulting potential economic impacts are discussed
below. These impacts cannot be quantified because the number of
recreationists and anglers using the designated sites is not known.
Recreationists engaging in cruising, fishing, and waterskiing may
experience some inconvenience by having to go slower or use
undesignated areas; however, the extension of slow speed zones is not
likely to result in a significant economic impact.
Currently, not enough data are available to estimate the loss in
consumer surplus that water skiers will experience. While some may use
substitute sites, others may forgo the activity. The economic impact
associated with these changes on demand for goods and services is not
[[Page 48119]]
known. However, given the number of recreationists potentially
affected, and the fact that alternative sites are available, it is not
expected to amount to a significant economic impact. Until recently,
speed zones were in place in this area and recreationists have adjusted
their activities to accommodate them. It is not expected that for a
120-day emergency rule there would be a significant loss in consumer
surplus from this activity.
Affected Commercial Charter Boat Activities
Various types of charter boats use the waterways in the affected
counties, primarily for fishing and nature tours. The number of charter
boats using the Pine Island-Estero Bay areas is currently unknown. For
nature tours, the extension of slow speed zones is unlikely to cause a
significant impact, because these boats are likely traveling at slow
speeds. The extra time required for commercial charter boats to reach
fishing grounds could reduce onsite fishing time and could result in
fewer trips. The fishing activity is likely occurring at a slow speed
and will not be affected. Added travel time may affect the length of a
trip, which could result in fewer trips overall, creating an economic
impact.
Affected Commercial Fishing Activities
Several commercial fisheries will experience some impact due to the
regulation. To the extent that the regulation establishes additional
speed zones in commercial fishing areas, this will increase the time
spent on the fishing activity, affecting the efficiency of commercial
fishing. While limited data are available to address the size of the
commercial fishing industry in the manatee refuges, county-level data
generally provide an upper bound estimate of the size of the industry
and potential economic impact.
Given available data, the impact on the commercial fishing industry
of extending slow speed zones in the Pine Island-Estero Bay area cannot
be quantified. The designation will likely affect commercial fishermen
by way of added travel time, which can result in an economic impact.
Some of the 27 active permit holders with speed limit exemptions are
commercial fishermen. However, because the manatee refuge designation
will not prohibit any commercial fishing activity, and because there is
a channel available for boats to travel up to 25 miles per hour in the
affected areas, the Service believes that it is unlikely that the rule
will result in a significant economic impact on the commercial fishing
industry. It is important to note that, in 2001, the total annual value
of potentially affected fisheries was approximately $8.3 million
(2001$); this figure represents the economic impact on commercial
fisheries in these counties in the unlikely event that the fisheries
would be entirely shut down, which is not the situation associated with
this rule.
Agency Administrative Costs
The cost of implementing the rule has been estimated based on
historical expenditures by the Service for manatee refuges and
sanctuaries established previously. Since temporary signage is still in
place from the previous emergency refuge in this location, and is still
appropriate, we anticipate little or no additional costs for re-
establishment of a 120 manatee refuge here. The Service will likely
spend additional funds for enforcement at the newly designated manatee
refuge for 120 days. These costs cannot be accurately estimated at this
time. The costs of enforcement may include hiring and training new law
enforcement agents and special agents, and the associated training,
equipment, upkeep, and clerical support (Service 2003b). Finally, there
are some costs for education and outreach to inform the public about
this new manatee refuge area.
While the State of Florida has 12,000 miles of rivers and 3 million
acres of lakes, this rule will affect approximately 30 river miles. The
speed restrictions in this rule will cause inconvenience due to added
travel time for recreationists and commercial charter boats and
fishermen. As a result, the rule will impact the quality of waterborne
activity experiences for some recreationists, and may lead some
recreationists to forgo the activity. This rule does not prohibit
recreationists from participating in any activities. Alternative sites
are available for all waterborne activities that may be affected by
this rule. The distance that recreationists may have to travel to reach
an undesignated area varies. The regulation will likely impact some
portion of the charter boat and commercial fishing industries in these
areas as well. The inconvenience of having to go somewhat slower in
some areas may result in changes to commercial and recreational
behavior, resulting in some regional economic impacts. Given available
information, the net economic impact of designating the manatee refuge
is not expected to be significant (i.e., an annual economic impact of
over $100 million). While the level of economic benefits that may be
attributable to the manatee refuge is unknown, these benefits would
cause a reduction in the economic impact of the rule.
b. The precedent to establish manatee protection areas has been
established primarily by State and local governments in Florida. We
recognize the important role of State and local partners and continue
to support and encourage State and local measures to improve manatee
protection. We are designating the Pine Island-Estero Bay area, where
previously existing State designations have been eliminated, to protect
the manatee population in that area.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Minimal restriction to existing human uses of the sites would result
from this rule. No entitlements, grants, user fees, loan programs, or
effects on the rights and obligations of their recipients are expected
to occur.
d. This rule does not raise novel legal or policy issues. We have
previously established other manatee protection areas.
Regulatory Flexibility Act
We certify that this rule will not have a significant economic
effect on a substantial number of small entities as defined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial/final
Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
In order to determine whether the rule will have a significant
economic effect on a substantial number of small entities, we utilize
available information on the industries most likely to be affected by
the designation of the manatee refuge. Currently, no information is
available on the specific number of small entities that are potentially
affected. However, 27 active permit holders were exempt from the speed
limits in the proposed refuge area. Because these zones have been in
place since 1999 and people have adjusted and there were no other
permit holders, it is reasonable to expect that the emergency rule will
impact only the 27 permit holders in the former State speed zones. They
are primarily commercial fishing boats and fishing guides. Both would
be considered small businesses. The 27 permit holders had State
exemptions from the speed restrictions based on an application that
stated they would suffer at least a 25 percent income loss without the
permit. The usual income level for these businesses
[[Page 48120]]
is not known, however a 25 percent loss of business income is
significant regardless of the level of business income. We acknowledge
that there could be a significant loss of income to those permit
holders that rely on speed to carry out their business activities,
however, the Service believes that the 27 permit holders do not
constitute a substantial number.
This rule will add to travel time for recreational boating and
commercial activities resulting from extension of existing speed zones.
Because the only restrictions on recreational activity result from
added travel time, and alternative sites are available for all
waterborne activities, we believe that the economic effect on small
entities resulting from changes in recreational use patterns will not
be significant. The economic effects on most small businesses resulting
from this rule are likely to be indirect effects related to a reduced
demand for goods and services if recreationists choose to reduce their
level of participation in waterborne activities. Similarly, because the
only restrictions on commercial activity result from the inconvenience
of added travel time, and boats can continue to travel up to 25 mph in
the navigation channels, we believe that any economic effect on small
commercial fishing or charter boat entities (other than the 27 permit
holders) will not be significant. Also, the indirect economic impact on
small businesses that may result from reduced demand for goods and
services from commercial entities is likely to be insignificant.
The employment characteristics of Lee County are shown in Table 1
for the year 1997. We included the following SIC (Standard Industrial
Classification) categories, because they include businesses most likely
to be directly affected by the designation of a manatee refuge:
? Fishing, hunting, trapping (SIC 09);
? Water transportation (SIC 44);
? Miscellaneous retail (SIC 59);
? Amusement and recreation services (SIC 79);
? Non-classifiable establishments (NCE).
Table 1.--Employment Characteristics of Lee County in Florida--1997 (Includes SIC Codes 09, 44, 59, 79, and NCE \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Select SIC Codes (Includes SIC Codes 09, 44, 59, 79, and NCE \a\
Total mid- Mid-March Total -------------------------------------------------------------------------------
March employment establishments Total Number of Number of Number of Number of
County employment \b\ (select (all establishments establishments establishments establishments establishments
\b\ (all SIC Codes) industries) (all (1-4 (5-9 (10-19 (20+
industries) industries) employees) employees) employees) employees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lee......................... 135,300 7,734 11,386 974 602 193 92 87
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Descriptions of the SIC codes included in this table as follows: SIC 09-Fishing, hunting, and trapping; SIC 44-Water transportation; SIC 59-
Miscellaneous retail service division; SIC 79--Amusement and recreation services; and NCE-non-classifiable establishments division.
\b\ Table provides the high-end estimate whenever the Census provides a range of mid-March employment figures for select counties and SIC codes.
Source: U.S. Census County Business Patterns (http://www.census.gov/epcd/cbp/view/cbpview.html).
As shown in Table 1, the majority (over 80 percent) of these
business establishments in Lee County have fewer than ten employees,
with the largest number of establishments employing fewer than four
employees. Any economic impacts associated with this rule will affect
some proportion of these small entities.
Since the emergency designation is for a manatee refuge, which only
requires a reduction in speed, we do not believe the designation would
cause significant economic effect on a substantial number of small
businesses. Currently available information does not allow us to
quantify the number of small business entities, such as charter boats
or commercial fishing entities, that may incur direct economic impacts
due to the inconvenience of added travel times resulting from the rule,
but it is safe to assume that the current 27 permit holders may
constitute the affected parties for a 120-day rule. The Service does
not believe the 27 permit holders constitute a substantial number.
Prior to establishing the Pine Island-Estero Bay as a permanent manatee
refuge, public comments on our proposed rule published elsewhere in
this issue of the Federal Register will be used for further refinement
of the impact on small entities and the general public. In addition,
the inconvenience of slow speed zones may cause some recreationists to
change their behavior, which may cause some loss of income to some
small businesses. The number of recreationists that will change their
behavior, and how their behavior will change, is unknown; therefore,
the impact on potentially affected small business entities cannot be
quantified. However, because boaters will experience only minimal added
travel time in most affected areas and the fact that speed zones were
in place until recently, we believe that this designation will not
cause a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804 (2). This rule:
a. Does not have an annual effect on the economy of $100 million or
more. As shown above, this rule may cause some inconvenience in the
form of added travel time for recreationists and commercial fishing and
charter boat businesses because of speed restrictions in manatee refuge
areas, but this should not translate into any significant business
reductions for the many small businesses in the affected county. An
unknown portion of the establishments shown in Table 1 could be
affected by this rule. Because the only restrictions on recreational
activity result from added travel time, and alternative sites are
available for all waterborne activities, we believe that the economic
impact on small entities resulting from changes in recreational use
patterns will not be significant. The economic impacts on small
business resulting from this rule are likely to be indirect effects
related to a reduced demand for goods and services if recreationists
choose to reduce their level of participation in waterborne activities.
Similarly, because the only restrictions on commercial activity result
from the inconvenience of added travel time, and boats can continue to
travel up to 25 miles per hour in the navigational channels, we believe
that any economic impact on most small commercial fishing or charter
boat entities will not be significant. Also, the indirect economic
impact on small businesses that may result from reduced demand
[[Page 48121]]
for goods and services from commercial entities is likely to be
insignificant.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. It is unlikely that there are
unforeseen changes in costs or prices for consumers stemming from this
rule. The recreational charter boat and commercial fishing industries
may be affected by lower speed limits for some areas when traveling to
and from fishing grounds. However, because of the availability of 25-
miles-per-hour navigational channels, this impact is likely to be
limited. Further, only 27 active permit holders were exempt from the
former State speed zones. The impact will most likely stem from only
these permit holders.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. As
stated above, this rule may generate some level of inconvenience to
recreationists and commercial users due to added travel time, but the
resulting economic impacts are believed to be minor and will not
interfere with the normal operation of businesses in the affected
counties. Added travel time to traverse some areas is not expected to
be a major factor that will impact business activity.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. The
designation of manatee refuges and sanctuaries, while imposing
regulations for at least a limited period, will not impose obligations
on State or local governments that have not previously existed.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. As such, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. The manatee protection areas are located over publicly-
owned submerged water bottoms.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on the
State, in the relationship between the Federal Government and the
State, or on the distribution of power and responsibilities among the
various levels of government. We coordinated with the State of Florida
to the extent possible on the development of this rule.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this 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 any collections of information
that require approval by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). A
Federal agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
We have analyzed this rule in accordance with criteria of the
National Environmental Policy Act. This rule does not constitute a
major Federal action significantly affecting the quality of the human
environment. An Environmental Assessment has been prepared and is
available for review by written request to the Field Supervisor (see
ADDRESSES section).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a Government-to-Government basis. We have evaluated possible
effects on federally recognized Indian tribes and have determined that
there are no effects.
Energy Supply, Distribution or Use
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this rule is
not a significant regulatory action under Executive Order 12866 and it
only requires vessels to continue their operation as they have in the
past, it is not expected to significantly affect energy supplies,
distribution, and use. Therefore, this action is a not a significant
energy action and no Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this final rule is
available upon request from the Vero Beach Field Office (see ADDRESSES
section).
Author
The primary author of this document is Kalani Cairns (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.
Regulation Promulgation
? Accordingly, we 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 adding paragraph (c) (13) as follows:
Sec. 17.108 List of designated manatee protection areas.
* * * * *
(c) * * *
(13) The Pine Island-Estero Bay Manatee Refuge. (i) Watercraft are
required to proceed at slow speed all year in all waters of Matlacha
Pass, south of a line that bears 90[deg] and 270[deg] from Matlacha
Pass Green Channel Marker ``77'' (approximate latitude 26[deg]40'00''
North, approximate longitude 82[deg]06'00'' West), and north of Pine
Island Road (State Road No. 78), excluding:
[[Page 48122]]
(A) The portion of the marked channel otherwise designated in
paragraph (c)(13)(iii) of this section;
(B) All waters of Buzzard Bay east and northeast of a line
beginning at a point (approximate latitude 26[deg]40'00'' North,
approximate longitude 82[deg]05'20'' West) on the southwest shoreline
of an unnamed mangrove island east of Matlacha Pass Green Channel
Marker ``77'' and bearing 219[deg] to the northeasternmost point
(approximate latitude 26[deg]39'58'' North, approximate longitude
82[deg]05'23'' West) of another unnamed mangrove island, then running
along the eastern shoreline of said island to its southeasternmost
point (approximate latitude 26[deg]39'36'' North, approximate longitude
81[deg]05'09'' West), then bearing 115[deg] to the westernmost point
(approximate latitude 26[deg]39'34'' North, approximate longitude
82[deg]05'05'' West) of the unnamed mangrove island to the southeast,
then running along the western shoreline of said island to its
southwesternmost point (approximate latitude 26[deg]39'22'' North,
approximate longitude 82[deg]04'53'' West), then bearing 123[deg] to
the northwesternmost point (approximate latitude 26[deg]39'21'' North,
approximate longitude 82[deg]04'52'' West) of an unnamed mangrove
island, then running along the western shoreline of said island to its
southeasternmost point (approximate latitude 26[deg]39'09'' North,
approximate longitude 82[deg]04'44'' West), then bearing 103[deg] to
the northwesternmost point (approximate latitude 26[deg]39'08'' North,
approximate longitude 82[deg]04'41'' West) of a peninsula on the
unnamed mangrove island to the southeast, then running along the
southwestern shoreline of said island to its southeasternmost point
(approximate latitude 26[deg]38'51'' North, approximate longitude
82[deg]04'18'' West), then bearing 99[deg] to the southernmost point
(approximate latitude 26[deg]38'50'' North, approximate longitude
82[deg]04'03'' West) of the unnamed mangrove island to the east, then
bearing 90[deg] to the line's terminus at a point (approximate latitude
26[deg]38'50'' North, approximate longitude 82[deg]03'55'' West) on the
eastern shoreline of Matlacha Pass; and
(C) All waters of Pine Island Creek and Matlacha Pass north of Pine
Island Road (State Road No. 78) and west and southwest of a line
beginning at a point (approximate latitude 26[deg]39'29'' North,
approximate longitude 82[deg]06'29'' West) on the western shoreline of
Matlacha Pass and bearing 160[deg] to the westernmost point
(approximate latitude 26[deg]39'25'' North, approximate longitude
82[deg]06'28'' West) of an unnamed island, then running along the
western shoreline of said island to its southernmost point (approximate
latitude 26[deg]39'18'' North, approximate longitude 82[deg]06'24''
West), then bearing 128[deg] to the northernmost point (approximate
latitude 26[deg]39'12'' North, approximate longitude 82[deg]06'17''
West) of an unnamed mangrove island to the south, then running along
the eastern shoreline of said island to its southeasternmost point
(approximate latitude 26[deg]39'00'' North, approximate longitude
82[deg]06'09'' West), then bearing 138[deg] to a point (approximate
latitude 26[deg]38'45'' North, approximate longitude 82[deg]05'53''
West) on the northern shoreline of Bear Key, then running along the
northern shoreline of Bear Key to its easternmost point (approximate
latitude 26[deg]38'44'' North, approximate longitude 82[deg]05'46''
West), then bearing 85[deg] to the westernmost point (approximate
latitude 26[deg]38'45'' North, approximate longitude 82[deg]05'32''
West) of Deer Key, then running along the northern shoreline of Deer
Key to its easternmost point (approximate latitude 26[deg]38'46''
North, approximate longitude 82[deg]05'22'' West), then bearing
103[deg] to the northwesternmost point (approximate latitude
26[deg]38'45'' North, approximate longitude 82[deg]05'17'' West) of the
unnamed mangrove island to the east, then running along the western
shoreline of said island to its southernmost point (approximate
latitude 26[deg]38'30'' North, approximate longitude 82[deg]05'04''
West), then bearing 106[deg] to the westernmost point (approximate
latitude 26[deg]38'30'' North, approximate longitude 82[deg]04'57''
West) of the unnamed island to the southeast, then running along the
northern and eastern shorelines of said island to a point (approximate
latitude 26[deg]38'23'' North, approximate longitude 82[deg]04'51''
West) on its eastern shoreline, then bearing 113[deg] to the
northernmost point of West Island (approximate latitude 26[deg]38'21''
North, approximate longitude 82[deg]04'37'' West), then running along
the western shoreline of West Island to the point where the line
intersects Pine Island Road (State Road No. 78).
(ii) Watercraft are required to proceed at slow speed all year in
all waters of Matlacha Pass, St. James Creek, and San Carlos Bay, south
of Pine Island Road (State Road No. 78), north of a line 500 feet
northwest of and parallel to the main marked channel of the Intracoastal
Waterway, west of a line that bears 302[deg] from Intracoastal Waterway
Green Channel Marker ``99'' (approximate latitude 26[deg]31'00'' North,
approximate longitude 82[deg]00'52'' West), and east of a line that bears
360[deg] from Intracoastal Waterway Red Channel Marker ``10'' (approximate
latitude 26[deg]29'16'' North, approximate longitude 82[deg]03'35''
West), excluding:
(A) The portions of the marked channels otherwise designated in
paragraphs (c)(13 )(iv) and (v) of this section;
(B) All waters of Matlacha Pass south of Pine Island Road (State
Road No. 78) and west of the western shoreline of West Island and a
line beginning at the southernmost point (approximate latitude
26[deg]37'25'' North, approximate longitude 82[deg]04'17'' West) of
West Island and bearing 149[deg] to the northernmost point (approximate
latitude 26[deg]37'18'' North, approximate longitude 82[deg]04'12''
West) of the unnamed mangrove island to the south, then running along
the eastern shoreline of said island to its southernmost point
(approximate latitude 26[deg]36'55'' North, approximate longitude
82[deg]04'02'' West), then bearing 163[deg] to the line's terminus at a
point (approximate latitude 26[deg]36'44'' North, approximate longitude
82[deg]03'58'' West) on the eastern shoreline of Little Pine Island;
(C) All waters of Matlacha Pass, Pontoon Bay, and associated
embayments south of Pine Island Road (State Road No. 78) and east of a
line beginning at a point (approximate latitude 26[deg]38'12'' North,
approximate longitude 82[deg]03'46'' West) on the northwestern
shoreline of the embayment on the east side of Matlacha Pass,
immediately south of Pine Island Road and then running along the
eastern shoreline of the unnamed island to the south to its
southeasternmost point (approximate latitude 26[deg]37'30'' North,
approximate longitude 82[deg]03'22'' West), then bearing 163[deg]
to the northwesternmost point of the unnamed island to the south, then
running along the western shoreline of said island to its southernmost
point (approximate latitude 26[deg]37'15'' North, approximate longitude
82[deg]03'15'' West), then bearing 186( to the line's terminus at a
point (approximate latitude 26[deg]37'10'' North, approximate longitude
82[deg]03'16'' West) on the eastern shoreline of Matlacha Pass;
(D) All waters of Pine Island Creek south of Pine Island Road
(State Road No. 78); and all waters of Matlacha Pass, Rock Creek, and
the Mud Hole, west of a line beginning at a point (approximate latitude
26[deg]33'52'' North, approximate longitude 82[deg]04'53'' West) on the
western shoreline of Matlacha Pass and bearing 22[deg] to a point
(approximate latitude 26[deg]34'09'' North, approximate longitude
82[deg]04'45'' West) on the southern shoreline of the unnamed island to
the northeast, then running along the southern and eastern shorelines
of said island to a point
[[Page 48123]]
(approximate latitude 26[deg]34'15'' North, approximate longitude
82[deg]04'39'' West) on its northeastern shoreline, then bearing
24[deg] to a point (approximate latitude 26[deg]34'21'' North,
approximate longitude 82[deg]04'36'' West) on the southern shoreline of
the large unnamed island to the north, then running along the southern
and eastern shorelines of said island to a point (approximate latitude
26[deg]34'31'' North, approximate longitude 82[deg]04'29'' West) on its
eastern shoreline, then bearing 41[deg] to the southernmost point
(approximate latitude 26[deg]34'39'' North, approximate longitude
82[deg]04'22'' West) of another unnamed island to the northeast, then
running along the eastern shoreline of said island to its
northwesternmost point (approximate latitude 26[deg]35'22'' North,
approximate longitude 82[deg]04'07'' West), then bearing 2[deg]
to the southernmost point (approximate latitude 26[deg]35'32'' North,
approximate longitude 82[deg]04'07'' West) of the unnamed island to the
north, then running along the eastern shoreline of said island to its
northernmost point (approximate latitude 26[deg]35'51'' North,
approximate longitude 82[deg]03'59'' West), then bearing 353[deg]
to the line's terminus at a point (approximate latitude 26[deg]36'08''
North, approximate longitude 82[deg]04'01'' West) on the eastern
shoreline of Little Pine Island; and
(E) All waters of Punta Blanca Bay and Punta Blanca Creek, east of
the eastern shoreline of Matlacha Pass and east and north of the
eastern and northern shorelines of San Carlos Bay.
(iii) Watercraft may not exceed 25 miles per hour, all year, in all
waters within the main marked channel in Matlacha Pass south of Green
Channel Marker ``77'' (approximate latitude 26[deg]40'00'' North,
approximate longitude 82[deg]06'00'' West) and north of a line
perpendicular to the channel at a point in the channel \1/4\ mile
northwest of the Pine Island Road Bridge (State Road No. 78).
(iv) Watercraft may not exceed 25 miles per hour, all year, in all
waters within the main marked channel in Matlacha Pass south of a line
perpendicular to the channel at a point in the channel \1/4\ mile
southeast of the Pine Island Road Bridge (State Road No. 78), and north
of a line 500 feet northwest of and parallel to the main marked channel
of the Intracoastal Waterway (just north of Green Channel Marker
``1[dquo]).
(v) Watercraft may not exceed 25 miles per hour, all year, in all
waters within the marked channel in Matlacha Pass that intersects the
main Matlacha Pass channel near Green Channel Marker ``15'' (approximate
latitude 26[deg]31[min]57[sec] North, approximate longitude
82[deg]03[min]38[sec]West) and intersects the main marked channel of the
Intracoastal Waterway near Green Channel Marker ``101'' (approximate
latitude 26[deg]30[min]39[sec] North, approximate longitude
82[deg]01[min]00[sec] West).
(vi) Watercraft are required to proceed at slow speed from April 1
through November 15 in all canals and boat basins of St. James City and
the waters known as Long Cut and Short Cut; and all waters of Pine
Island Sound and San Carlos Bay south of a line beginning at the
southernmost tip (approximate latitude 26[deg]31[min]28[sec] North,
approximate longitude 82[deg]06[min]19[sec] West) of a mangrove
peninsula on the western shore of Pine Island approximately 2,200 feet
north of Galt Island and bearing 309[deg] to the southeasternmost point
(approximate latitude 26[deg]31[min]32[sec] North, approximate
longitude 82[deg]06[min]25[sec] West) of another mangrove peninsula,
then running along the southern shoreline of said peninsula to its
southwesternmost point (approximate latitude 26[deg]31[min]40[sec]
North, approximate longitude 82[deg]06[min]38[sec] West), then bearing
248[deg] to a point (approximate latitude 26[deg]31[min]40[sec]
North, approximate longitude 82[deg]06[min]39[sec] West) on the eastern
shoreline of an unnamed mangrove island, then running along the
southern shoreline of said island to its southwesternmost point
(approximate latitude 26[deg]31[min]39[sec] North, approximate
longitude 82[deg]06[min]44[sec] West), then bearing 206[deg]
to the line's terminus at the northernmost point of the MacKeever Keys
(approximate latitude 26[deg]31[min]09[sec] North, approximate
longitude 82[deg]07[min]09[sec] West), east of a line beginning at said
northernmost point of the MacKeever Keys and running along and between
the general contour of the western shorelines of said keys to a point
(approximate latitude 26[deg]30[min]27[sec] North, approximate longitude
82[deg]07[min]08[sec] West) on the southernmost of the MacKeever Keys,
then bearing 201[deg] to a point (approximate latitude
26[deg]30[min]01[sec] North, approximate longitude 82[deg]07[min]19[sec]
West) approximately 150 feet due east of the southeasternmost point of
Chino Island, then bearing approximately 162[deg] to Red Intracoastal
Waterway Channel Marker ``22'' (approximate latitude 26[deg]28[min]57[sec]
North, approximate longitude 82[deg]06[min]55[sec] West), then bearing
approximately 117[deg] to the line's terminus at Red Intracoastal Waterway
Channel Marker ``20'' (approximate latitude 26[deg]28[min]45[sec]
North, approximate longitude 82[deg]06[min]38[sec] West), north of a line
beginning at said Red Intracoastal Waterway Channel Marker ``20'' and
bearing 86[deg] to a point (approximate latitude 26[deg]28[min]50[sec]
North, approximate longitude 82[deg]05[min]48[sec] West) \1/4\ mile
south of York Island, then running parallel to and \1/4\ mile south of
the general contour of the southern shorelines of York Island and Pine
Island to the line's terminus at a point on a line bearing 360[deg]
from Red Intracoastal Waterway Channel Marker ``10'' (approximate
latitude 26[deg]29[min]16[sec] North, approximate longitude
82[deg]03[min]35[sec] West), and west and southwest of the general
contour of the western and southern shorelines of Pine Island and a
line that bears 360[deg] from said Red Intracoastal Waterway Channel
Marker ``10,'' excluding the portion of the marked channel otherwise
designated in paragraph (c)(13 )(vii) of this section.
(vii) Watercraft may not exceed 25 miles per hour from April 1
through November 15 in all waters of the marked channel that runs north
of the power lines from the Cherry Estates area of St. James City into
Pine Island Sound, east of the western boundary of the zone designated
in paragraph (c)(13)(vi) of this section, and west of a line
perpendicular to the power lines that begins at the easternmost point
(approximate latitude 26[deg]30'25'' North, approximate longitude
82[deg]06'15'' West) of the mangrove island on the north side of the
power lines approximately 1,800 feet southwest of the Galt Island
Causeway.
(viii) Watercraft are required to proceed at slow speed all year in
all waters of San Carlos Bay and Punta Rassa Cove east of a line that
bears 352[deg] from the northernmost tip of the northern peninsula on
Punta Rassa (approximate latitude 26[deg]29'44'' North, approximate
longitude 82[deg]00'33'' West), and south of a line that bears 122[deg]
from Intracoastal Waterway Green Channel Marker ``99'' (approximate
latitude 26[deg]31'00'' North, approximate longitude 82[deg]00'52''
West), including all waters of Shell Creek and associated waterways.
(ix) Watercraft are required to proceed at slow speed all year in
all waters of San Carlos Bay and the Caloosahatchee River, including
the residential canals of Cape Coral, northeast of a line that bears
302[deg] and 122[deg] from Intracoastal Waterway Green Channel Marker
``99'' (approximate latitude 26[deg]31'00'' North, approximate
longitude 82[deg]00'52'' West), west of a line that bears 346[deg]
from Intracoastal Waterway Green Channel Marker ``93'' (approximate
latitude 26[deg]31'37'' North, approximate longitude 81[deg]59'46'' West),
and north and northwest of the general contour of the northwestern
shoreline of Shell Point and a line that bears approximately 74[deg]
from the northernmost tip (approximate latitude 26[deg]31'31'' North,
approximate longitude 81[deg]59'57'' West) of Shell Point to said
Intracoastal Waterway Green
[[Page 48124]]
Channel Marker ``93,'' excluding the Intracoastal Waterway between
markers ``93'' and ``99'' (which is already designated as a Federal
manatee protection area, requiring watercraft to proceed at slow speed,
and is not impacted by this rulemaking).
(x) Watercraft are required to proceed at slow speed from April 1
through November 15 and at not more than 25 miles per hour the
remainder of the year in all waters of Hell Peckney Bay southeast of
Hurricane Bay, northeast of the northern shorelines of Julies Island
and the unnamed island immediately northwest of Julies Island and a
line that bears 312[deg] from the northwesternmost point of Julies
Island (approximate latitude 26[deg]26'37'' North, approximate
longitude 81[deg]54'57'' West), northwest of Estero Bay, and southwest
of a line beginning at the southernmost point (approximate latitude
26[deg]27'23'' North, approximate longitude 81[deg]55'11'' West) of an
unnamed mangrove peninsula in northwest Hell Peckney Bay and bearing
191[deg] to the northernmost point (approximate latitude 26[deg]27'19''
North, approximate longitude 81[deg]55'11'' West) of an unnamed
mangrove island, then running along the northern shoreline of said
island to its southeasternmost point (approximate latitude
26[deg]27'11'' North, approximate longitude 81[deg]55'05'' West), then
bearing 115[deg] to a point (approximate latitude 26[deg]27'03'' North,
approximate longitude 81[deg]54'47'' West) on the northwest shoreline
of an unnamed mangrove island, then running along the northern
shoreline of said island to its northeasternmost point (approximate
latitude 26[deg]27'02'' North, approximate longitude 81[deg]54'33''
West), and then bearing 37[deg] to the line's terminus at the
westernmost point of an unnamed mangrove peninsula in eastern Hell
Peckney Bay.
(xi) Watercraft are required to proceed at slow speed from April 1
through November 15 and at not more than 25 miles per hour the
remainder of the year in all waters of Hendry Creek south of a line
that bears 270[deg] from a point (approximate latitude 26[deg]28'40''
North, approximate longitude 81[deg]52'56'' West) on the eastern
shoreline of Hendry Creek; and all waters of Estero Bay southeast and
east of Hell Peckney Bay, a line that bears 340[deg] from a point
(approximate latitude 26[deg]25'56'' North, approximate longitude
81[deg]54'25'' West) on the northern tip of an unnamed mangrove
peninsula on the northeastern shoreline of Estero Island, and the
northern shoreline of Estero Island, south of Hendry Creek and a line
that bears 135[deg] and 315[deg] from Red Channel Marker ``18''
(approximate latitude 26[deg]27'46'' North, approximate longitude
81[deg]52'00'' West) in Mullock Creek, and north of a line that bears
72[deg] from the northernmost point (approximate latitude 26[deg]24'22''
North, approximate longitude 81[deg]52'34'' West) of Black Island,
including the waters of Buccaneer Lagoon at the southern end of Estero
Island, but excluding: (A) The portions of the marked channels otherwise
designated in paragraph (c)(13)(xiii) of this section;
(B) The Estero River; and
(C) To waters of Big Carlos Pass east of a line beginning at a
point (approximate latitude 26[deg]24'34'' North, approximate longitude
81[deg]53'05'' West) on the eastern shoreline of Estero Island and
bearing 36[deg] to a point (approximate latitude 26[deg]24'40'' North,
approximate longitude 81[deg]53'00'' West) on the southern shoreline of
Coon Key, south of a line beginning at a point (approximate latitude
26[deg]24'36'' North, approximate longitude 81[deg]52'30'' West) on the
eastern shoreline of Coon Key and bearing 106[deg] to a point
(approximate latitude 26[deg]24'39'' North, approximate longitude
81[deg]52'34'' West) on the southwestern shoreline of the unnamed
mangrove island north of Black Island, and west of a line beginning at
a point (approximate latitude 26[deg]24'36'' North, approximate
longitude 81[deg]52'30'' West) on the southern shoreline of said
unnamed mangrove island north of Black Island and bearing 192[deg]
to the northernmost point (approximate latitude 26[deg]24'22'' North,
approximate longitude 81[deg]52'34'' West) of Black Island.
(xii) Watercraft are required to proceed at slow speed from April 1
through November 15 and at not more than 25 miles per hour the
remainder of the year in all waters of Estero Bay and Big Hickory Bay
south of a line that bears 72[deg] from the northernmost point
(approximate latitude 26[deg]24'22'' North, approximate longitude
81[deg]52'34'' West) of Black Island, east of the centerline of State
Road No. 865 (including the waters of the embayment on the eastern side
of Black Island and the waters inshore of the mouth of Big Hickory Pass
that are west of State Road No. 865), and north of a line that bears
90[deg] from a point (approximate latitude 26[deg]20'51'' North,
approximate longitude 81[deg]50'33'' West) on the eastern shoreline of
Little Hickory Island, excluding Spring Creek and the portions of the
marked channels otherwise designated under paragraph (c)(13)(xiii) of
this section and the portion of Hickory Bay designated in paragraph
(c)(13)(xiii) of this section.
(xiii) Watercraft may not exceed 25 miles per hour all year in:
(A) All waters of Big Hickory Bay north of a line that bears
90[deg] from a point (approximate latitude 26[deg]20'51'' North,
approximate longitude 81[deg]50'33'' West) on the eastern shoreline of
Little Hickory Island, west of a line beginning at a point (approximate
latitude 26[deg]20'48'' North, approximate longitude 81[deg]50'24''
West) on the southern shoreline of Big Hickory Bay and bearing 338[deg]
to a point (approximate latitude 26[deg]21'39'' North, approximate
longitude 81[deg]50'48'' West) on the water in the northwestern end of
Big Hickory Bay near the eastern end of Broadway Channel, south of a
line beginning at said point on the water in the northwestern end of
Big Hickory Bay and bearing 242[deg] to the northernmost point
(approximate latitude 26[deg]21'39'' North, approximate longitude
81[deg]50'50'' West) of the unnamed mangrove island south of Broadway
Channel, and east of the eastern shoreline of said mangrove island and
a line beginning at the southernmost point of said island (approximate
latitude 26[deg]21'07'' North, approximate longitude 81[deg]50'58''
West) and bearing 167[deg] to a point on Little Hickory Island
(approximate latitude 26[deg]21'03'' North, approximate longitude
81[deg]50'57'' West);
(B) All waters of the main marked North-South channel in northern
Estero Bay from Green Channel Marker ``37'' (approximate latitude
26[deg]26'02'' North, approximate longitude 81[deg]54'29'' West) to
Green Channel Marker ``57'' (approximate latitude 26[deg]25'08'' North,
approximate longitude 81[deg]53'29'' West);
(C) All waters of the main marked North-South channel in southern
Estero Bay south of a line beginning at a point (approximate latitude
26[deg]24'36'' North, approximate longitude 81[deg]52'30'' West) on the
southern shoreline of the unnamed mangrove island north of Black Island
and bearing 192[deg] to the northernmost point (approximate latitude
26[deg]24'22'' North, approximate longitude 81[deg]52'34'' West) of
Black Island, and north and east of Red Channel Marker ``62''
(approximate latitude 26[deg]21'31'' North, approximate longitude
81[deg]51'20'' West) in Broadway Channel;
(D) All waters within the portion of the marked channel leading to
the Gulf of Mexico through New Pass, west of the North-South channel
and east of State Road No. 865; all waters of the marked channel
leading to Mullock Creek north of a line beginning at a point
(approximate latitude 26[deg]24'36'' North, approximate longitude
81[deg]52'30'' West) on the eastern shoreline of Coon Key and bearing
106[deg] to a point (approximate latitude 26[deg]24'39'' North,
approximate longitude 81[deg]52'34'' West)
[[Page 48125]]
on the southwestern shoreline of the unnamed mangrove island north of
Black Island, and south of Red Channel Marker ``18'' (approximate
latitude 26[deg]27'46'' North, approximate longitude 81[deg]52'00''
West);
(E) All waters of the marked channel leading from the Mullock Creek
Channel to the Estero River, west of the mouth of the Estero River.
(This designation only applies if a channel is marked in accordance
with permits issued by all applicable State and Federal authorities. In
the absence of a properly permitted channel, this area is as designated
under paragraph (c)(13)(xi) of this section.);
(F) All waters of the marked channel commonly known as Alternate
Route Channel, with said channel generally running between Channel
Marker ``1'' (approximate latitude 26[deg]24'29'' North, approximate
longitude 81[deg]51'53'' West) and Channel Marker ``10'' (approximate
latitude 26[deg]24'00'' North, approximate longitude 81[deg]51'09''
West);
(G) All waters of the marked channel commonly known as Coconut
Channel, with said channel generally running between Channel Marker
``1'' (approximate latitude 26[deg]23'44'' North, approximate longitude
81[deg]50'55'' West) and Channel Marker ``23'' (approximate latitude
26[deg]24'00'' North, approximate longitude 81[deg]50'30'' West);
(H) All waters of the marked channel commonly known as Southern
Passage Channel, with said channel generally running between Channel
Marker ``1'' (approximate latitude 26[deg]22'58'' North, approximate
longitude 81[deg]51'57'' West) and Channel Marker ``22'' (approximate
latitude 26[deg]23'27'' North, approximate longitude 81[deg]50'46''
West); and
(I) All waters of the marked channel leading from the Southern
Passage Channel to Spring Creek, west of the mouth of Spring Creek.
(xiv) Maps of the Pine Island-Estero Bay Manatee Refuge follow:
BILLING CODE 4310-55-P
[[Page 48126]]
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[[Page 48127]]
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Dated: August 2, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-17970 Filed 8-3-04; 4:22 pm]
BILLING CODE 4310-55-C