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Endangered and Threatened Wildlife and Plants; Establishment of an Additional Manatee Protection Area in Lee County, FL

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 [Federal Register: August 6, 2004 (Volume 69, Number 151)]
[Proposed Rules]
[Page 48101-48114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au04-30]
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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, FL

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of supplemental information.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to 
establish an additional manatee protection area in Lee County, Florida 
(Pine Island-Estero Bay Manatee Refuge). We are proposing this action 
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 showing such 
establishment is necessary to prevent the taking of one or more 
manatees. In evaluating the need for the proposed designation of an 
additional 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 at these sites. These 
factors were the basis for designating this area as a manatee refuge by 
an emergency rule authorized under the ESA and MMPA on April 7, 2004. 
The emergency designation is temporary, lasting only 120 days, and will 
expire on August 5, 2004. We announced in the emergency rule that we 
would begin proceedings to establish these areas as a manatee refuge 
through rulemaking; this proposed rule is part of that process. In a 
federally designated manatee refuge, watercraft are 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, a designation does not 
preclude ingress and egress to private property. We also announce the 
availability of a draft environmental assessment for this action. A 
separate final rule concerning manatee protection in Lee County, FL, is 
published elsewhere in this issue of the Federal Register.

DATES: We will consider comments on both the proposed rule and the 
draft environmental assessment that are received by October 5, 2004. We 
will hold a public hearing on September 8, 2004, from 6:30 p.m. to 9:30 
p.m. in Fort Myers, Florida. See additional information on the public 
comment process in the SUPPLEMENTARY INFORMATION section.

ADDRESSES: A formal public hearing will be held at the Harborside 
Convention Hall, 1375 Monroe Street, in Fort Myers, Florida. The draft 
Environmental Assessment for this action is available for review upon 
written request to the Field Supervisor, South Florida Field Office, 
U.S. Fish and Wildlife Service, 1339 20th Street, Vero Beach, Florida 
32960.
    If you wish to comment on the proposed rule or draft environmental 
assessment, you may submit your comments by any one of several methods:
    1. You may submit written comments and information by mail to the 
Field Supervisor, South Florida Field Office, U.S. Fish and Wildlife 
Service, Attn: Proposed Manatee Refuge, 1339 20th Street, Vero Beach, 
Florida 32960.
    2. You may hand-deliver written comments to our South Florida Field 
Office, at the above address, or fax your comments to (772) 562-4288.
    3. You may send comments by electronic mail (e-mail) to 
verobeach@fws.gov. For directions on how to submit electronic comment 
files, see the ``Public Comments Solicited'' section.

FOR FURTHER INFORMATION CONTACT: Jay Slack or Kalani Cairns (see 
ADDRESSES section), telephone (772) 562-3909; or visit our Web site at 
http://verobeach.fws.gov. 

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 occasionally are 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 (U.S. Fish and Wildlife 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 under 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

[[Page 48103]]

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 
increase of 26 percent since 1993. These numbers differ from those in 
our recently published manatee rules 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 are 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 increase in and projected growth of 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, manatee protection areas 
may be established on an emergency basis when such takings are 
imminent. Such was the case for the emergency designation of these 
areas within Lee County as a manatee refuge. The emergency rule was 
published in the Federal Register on April 7, 2004 (69 FR 18279). The 
emergency designation is temporary, lasting only 120 days, and will 
expire on August 5, 2004. We announced in the emergency rule that, 
within 10 days after establishing the emergency protection area, in 
accordance with this section, the Service would begin proceedings to 
establish the area in accordance with 50 CFR 17.103.
    As defined in 50 CFR 17.102, we may establish two types of manatee 
protection areas: manatee refuges and manatee sanctuaries. A manatee 
refuge 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 dredge and 
fill activities.

Reasons for Proposing a Manatee Refuge

    In deciding to propose this rule, we reviewed a recent State court 
ruling overturning State-designated manatee speed zones in Lee County 
(State of Florida Fish and Wildlife Conservation Commission 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, County Court of the 20th Judicial Circuit) 
as well as the best available information to evaluate manatee and human 
interactions in the former State-speed zones affected by the ruling.
    In the State of Florida Fish and Wildlife Conservation Commission 
(FFWCC) v. Wilkinson, et al., boaters, 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 frequently frequent 
and, based upon available scientific information, it has been 
determined that manatees inhabit 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 absence of zones and enforcement in these areas 
increases the potential for manatees to suffer injury and death from 
watercraft collisions. The Court's ruling does not affect Federal speed 
zones in Lee County. The Service established Shell Island as a manatee 
refuge in November 2002 (67 FR 68450) and the Caloosahatchee River-San 
Carlos Bay as a manatee refuge in August 2003 (68 FR 46870).
    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 17.103 which provides the standard for designation 
of a manatee protected area. Specifically, this regulation provides 
that the Director may establish a manatee protection area `` * * * 
whenever there is substantial evidence showing such establishment is 
necessary to prevent the taking of one or more manatees.
    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 proposed designation receive 
extensive manatee use either on a seasonal or year-round basis as 
documented in radio telemetry and aerial survey data (FWC 2003). The 
areas contain feeding habitats and serve as travel corridors for 
manatees (FWC 2003). Although residents are likely accustomed to the 
presence of speed zones in the area, which existed as State regulations 
since 1999, some of those regulations are no longer in effect. 
Therefore, without this proposed Federal designation,

[[Page 48104]]

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. 
Also, while the State court invalidated State-designated 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. In the areas encompassed by this proposed 
designation that receive more seasonal use by manatees, the slow speed 
requirements would begin on April 1.
    There is a history of manatee mortalities in the area as a result 
of collisions with watercraft. At least 14 carcasses of manatees killed 
in collisions with watercraft have been recovered in or immediately 
adjacent to the designated areas since 1999 (FWC 2003), and two more 
carcasses have been recovered recently from sites that were former 
State speed zones eliminated by the Court's ruling. Necropsies revealed 
that these animals died of wounds from a boat collision.
    Manatees make extensive use of these areas; there is a history of 
take at these sites; future take will occur without the protection 
measures; protection measures will be insufficient upon expiration of 
the emergency designation; 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. For these 
reasons, we believe that substantial evidence shows that establishment 
of a manatee refuge is necessary to prevent the take of one or more 
manatees in these areas. The proposed refuge covers the exact same 
areas as those set forth in the April 7, 2004, emergency rule (69 FR 
18279).

Definitions

    The following terms are defined in 50 CFR 17.102. We present them 
here to aid in understanding this proposed rule.
    ``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 Proposed for Designation as a Manatee Refuge

Pine Island-Estero Bay Manatee Refuge

    The Pine Island-Estero Bay Manatee Refuge encompasses waterbodies 
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 waterbodies. These waterbodies 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.

Public Comments Solicited

    We solicit comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule. We particularly seek 
comments concerning:
    1. The reasons why this area, particularly the waters known as Long 
Cut and Short Cut as well as any shallow water embayments within the 
proposed area, should or should not be designated as manatee refuges, 
including data in support of these reasons;
    2. Current or planned activities in the subject areas and their 
possible effects on manatees;
    3. Any foreseeable economic or other impacts resulting from the 
proposed designations;
    4. Potential adverse effects to the manatee associated with 
designating manatee protection areas for the species; and
    5. Any actions that could be considered in lieu of, or in 
conjunction with, the proposed designations that would provide 
comparable or improved manatee protection.
    We request that you identify whether you are commenting on the 
proposed rule or draft environmental assessment. Comments and materials 
received, as well as supporting documentation used in the preparation 
of this proposed rule, will be available for public inspection, by 
appointment, during normal business hours from 8 a.m. to 4:30 p.m., at 
the above address. You may obtain copies of the draft environmental 
assessment from the above address or by calling (772) 562-3909 or from 
our Web site at http://verobeach.fws.gov. 
    Comments submitted electronically should be embedded in the body of 
the e-mail message itself or attached as a text-file (ASCII) and should 
not use special characters and encryption. Please also include ``Attn: 
RIN 1018-AT65,'' your full name, and return address in your e-mail 
message. Comments submitted to verobeach@fws.gov will receive an 
automated response confirming receipt of your message. If you do not 
receive a confirmation from the system that we have received your e-
mail message, contact us directly by calling our South Florida Field 
Office (see ADDRESSES section).
    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

[[Page 48105]]

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 prior to a determination 
and will refine this proposal, if and when appropriate. Accordingly, 
the final decision may differ from this proposal.

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, the 
Office of Management and Budget (OMB) has determined that this proposed 
rule is a significant regulatory action, as it may raise novel legal or 
policy issues. OMB has reviewed this rule.
    a. Based on experience with similar rulemakings in this area, this 
proposed 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 
significant economic impacts would result from the establishment of a 
manatee refuge (approximately 30 miles of waterways) in Lee County in 
the State of Florida.
    The purpose of this proposed rule is to establish a manatee refuge 
in Lee County, Florida. We are proposing to prevent the take of 
manatees by controlling certain human activity in this county. For the 
proposed 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 proposed 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 proposed rule. Conversely, the proposed 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 proposed 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 voided by a State Court decision. However, residents and other 
water users have lived with speed restrictions in this area since 1999 
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 because almost all users have 
been previously subject to these restrictions. Thus, the proposed 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 proposed rule would be due to the 
changes in speed zone restrictions in the manatee refuge area. These 
speed zone changes are summarized in the proposed rule.
    In addition to speed zone changes, the proposed 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 (one permit holder did not renew during the last cycle) in the 
former State zones that comprise the proposed manatee refuge area.
    In order to gauge the economic effect of this proposed rule, both 
benefits and costs must be considered. Potential economic benefits 
related to this proposed rule include increased manatee protection and 
tourism related to manatee viewing, increased fisheries health, and 
decreased seawall maintenance costs. Potential economic costs are 
related to increased administrative activities related to implementing 
the proposed 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 proposed 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 proposed 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 proposed designation of the Pine Island-Estero 
Bay Manatee Refuge in this proposed 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 proposed 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 less disturbance. These types of benefits 
cannot be quantified with available information.
    Based on previous studies, we believe that this proposed rule 
produces some economic benefits. However, given the

[[Page 48106]]

lack of information available for estimating these benefits, the 
magnitude of these benefits is unknown.

Economic Costs

    The economic impact of the designation of a manatee refuge results 
from the fact that, in certain areas, 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 
throughout the designated site because of the proposed 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 proposed rule may be felt by 
commercial charter boat outfits, commercial fishermen, and agencies 
that perform administrative activities related to implementing the 
proposed rule. We hope to gather more information on the economic costs 
during the public comment period.

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 
proposed manatee refuge. 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 
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.

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 area 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. According to one professional guide with a State speed zone 
exemption permit, the exemption is important to him financially. The 
exemption allows him to take clients to areas where they spend more 
time fishing instead of traveling to fish, an important requirement for 
paying customers. Without the exemption, he doesn't take clients on a 
half-day charter to fish an area with an idle or slow speed zone at the 
risk of losing the charter. As his primary source of income, the loss 
of a charter has a significant affect on his ability to make a living. 
Instead, he will travel to areas where there are no speed zones in 
order for his clients to fish.

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. According to one commercial mullet fisherman with 
a State permit, the exemption is worthless to him. The State's permit 
exempts him from the speed zones restrictions in Matlacha Pass; 
however, the schools of mullet which he targets are primarily in the 
Caloosahatchee River, an area where he cannot get an exemption because 
of the Caloosahatchee River Manatee Refuge established in 2003. 
Nevertheless, because a 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 proposed 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 proposed rule.

Agency Administrative Costs

    The cost of implementing the proposed rule has been estimated based 
on historical expenditures by the Service for manatee refuges and 
sanctuaries established previously. The Service expects to spend 
approximately $600,000 (2002$) for posting and signing 15 previously 
designated manatee protection areas (an average of $40,000 per area). 
This represents the amount that the Service will pay contractors for 
creation and installation of manatee refuge signs. While the number and 
location of signs needed to post the Pine Island-Estero Bay manatee 
refuge is not known, the cost of manufacturing and posting signs to 
delineate the manatee refuge in this proposed rule is not expected to 
exceed the amount being spent to post previously designated manatee 
protection areas (Service 2003a). Furthermore, there are unknown 
additional costs associated with the semi-annual requirement for 
seasonal conversion (flipping) of regulatory signs as well as routine 
maintenance of these posts and signs. In addition, the Service 
anticipates that it will spend additional funds for enforcement of a 
newly designated manatee refuge if a final rule is published. These 
costs, including the cost of fuel, cannot be accurately estimated at 
this time. The costs of enforcement may also include hiring and 
training new manatee enforcement

[[Page 48107]]

officers and special agents as well as 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 proposed rule will affect approximately 30 
waterway miles. The speed restrictions in this proposed rule will cause 
inconvenience due to added travel time for recreationists and 
commercial charter boats and fishermen. As a result, the proposed rule 
will impact the quality of waterborne activity experiences for some 
recreationists and may lead some recreationists to forgo the activity. 
This proposed rule does not prohibit recreationists from participating 
in any activities. Alternative sites are available for all waterborne 
activities that may be affected by this proposed 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 proposed rule.
    b. This rule will not create inconsistencies with other agencies' 
actions. 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 prevent 
the taking of one or more manatees in that area.
    c. This proposed 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 proposed rule. No entitlements, grants, 
user fees, loan programs or effects on the rights and obligations of 
their recipients are expected to occur.
    d. OMB has determined that this rule may raise novel legal or 
policy issues. Therefore, OMB has reviewed this proposed rule pursuant 
to E.O. 12866.

Regulatory Flexibility Act

    We 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.
    In order to determine whether the proposed 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 (one 
applicant did not renew his/her exemption during the last cycle) were 
exempt from the State speed limits in the proposed refuge area. Because 
these zones have been in place since 1999, people have adjusted to 
them, and there were no other permit holders, it is reasonable to 
expect that the proposed 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 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 who 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 proposed 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 proposed rule are likely to be indirect effects related to 
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)

[[Page 48108]]



                   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\b\  establishments                     Number of       Number of       Number of       Number of
           County              employment   (select SIC        (all            Total      establishments  establishments  establishments  establishments
                                  (all        (codes)       industries)   establishments       (1-4            (5-9           (10-19)          (20+
                              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 vast 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 proposed rule will 
affect some proportion of these small entities.
    Since the proposed 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 proposed 
rule, but certainly the 27 current permit holders have potential for 
inclusion in this category for this proposed rule. The Service does not 
believe the 27 permit holders constitute a substantial number. Public 
comments on this proposed rule will be used for further refinement of 
the impact on small entities and the general public, should the final 
rule establish this area as a permanent manatee refuge. 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 who 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 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. As shown above, this proposed 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 proposed 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 proposed rule 
are likely to be indirect effects related to 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 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 
proposed 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 proposed 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 proposed rule will not ``significantly or uniquely'' affect 
small governments. A Small Government Agency Plan is not required. The 
designation of manatee refuges and sanctuaries will not impose 
obligations that have not previously existed on State or local 
governments.
    b. This proposed 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.

[[Page 48109]]

Takings

    In accordance with Executive Order 12630, this proposed 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 proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. This proposed 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 proposed 
rule.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this proposed 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 proposed regulation does not contain collections of 
information that require approval by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3501 et seq. We may not conduct or 
sponsor, and you are 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 proposed rule in accordance with criteria of 
the National Environmental Policy Act. This proposed 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 proposed 
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 proposed rule is 
available upon request from the South Florida 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.

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)(13) to read 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 78), excluding:
    (A) The portion of the marked channel otherwise designated in 
paragraph (c)(15)(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 78) and west and

[[Page 48110]]

southwest of a line beginning at a point (approximate latitude 
26[deg]39'2m29'' 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 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 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)(15) (iv) and (v) of this section;
    (B) All waters of Matlacha Pass south of Pine Island Road (State 
Road 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 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[deg]
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 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 (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 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 78), and north of 
a line 500 feet northwest of and parallel to the main marked

[[Page 48111]]

channel of the Intracoastal Waterway (just north of Green Channel 
Marker 1).
    (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]31'57'' North, approximate longitude 82[deg]03'38'' 
West) and intersects the main marked channel of the Intracoastal 
Waterway near Green Channel Marker 101 (approximate latitude 
26[deg]30'39'' North, approximate longitude 82[deg]01'00'' 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]31'28'' North, 
approximate longitude 82[deg]06'19'' 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]31'32'' North, approximate longitude 82[deg]06'25'' 
West) of another mangrove peninsula, then running along the southern 
shoreline of said peninsula to its southwesternmost point (approximate 
latitude 26[deg]31'40'' North, approximate longitude 82[deg]06'38'' 
West), then bearing 248[deg]
to a point (approximate latitude 
26[deg]31'40'' North, approximate longitude 82[deg]06'39'' 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]31'39'' North, approximate longitude 
82[deg]06'44'' West), then bearing 206[deg]
to the line's terminus at 
the northernmost point of the Mac Keever Keys (approximate latitude 
26[deg]31'09'' North, approximate longitude 82[deg]07'09'' West), east 
of a line beginning at said northernmost point of the Mac Keever Keys 
and running along and between the general contour of the western 
shorelines of said keys to a point (approximate latitude 26[deg]30'27'' 
North, approximate longitude 82[deg]07'08'' West) on the southernmost 
of the Mac Keever Keys, then bearing 201[deg]
to a point (approximate 
latitude 26[deg]30'01'' North, approximate longitude 82[deg]07'19'' 
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]28'57'' North, 
approximate longitude 82[deg]06'55'' West), then bearing approximately 
117[deg]
to the line's terminus at Red Intracoastal Waterway Channel 
Marker 20 (approximate latitude 26[deg]28'45'' North, approximate 
longitude 82[deg]06'38'' 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]28'50'' North, approximate longitude 
82[deg]05'48'' 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]29'16'' North, approximate 
longitude 82[deg]03'35'' 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)(15)(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)(15)(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 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 proposed 
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

[[Page 48112]]

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)(15)(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 865 (but 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 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)(15)(xiii) of 
this section and the portion of Hickory Bay designated in paragraph 
(c)(15)(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]20'38'' 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 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) 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)(15)(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 48113]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.063

[[Page 48114]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.064

    Dated: July 15, 2004.
Paul Hoffman,
For Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-17906 Filed 8-5-04; 8:45 am]
BILLING CODE 4310-55-C 

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