[Federal Register: December 6, 2004 (Volume 69, Number 233)]
[Rules and Regulations]
[Page 70382-70395]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06de04-13]
-----------------------------------------------------------------------
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: Emergency rule.
-----------------------------------------------------------------------
SUMMARY: We, the Fish and Wildlife Service (Service), as required by
regulation, hereby provide notice of the termination of the emergency
[[Page 70383]]
establishment of the Pine Island-Estero Bay Refuge, which was effective
upon publication of a rule in the Federal Register on August 6, 2004,
until December 6, 2004. We also published a proposed rule to establish
these areas as the Pine Island-Estero Bay Manatee Refuge by standard
rulemaking procedures on August 6, 2004. Due to delays caused by recent
hurricanes in Florida (i.e., Charley, Frances, and Jeanne) and 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 December 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 December 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
(through April 5, 2005).
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 (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
increase of 26 percent since 1993.
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
[[Page 70384]]
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), boaters, who were issued
citations for alleged 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 the area on a regular, periodic, or continuous basis;
and (2) when the FFWCC adopts rules, it must consider the rights of
boaters, 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 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 (FWC, also
abbreviated as FFWCC, 2003). The areas contain feeding habitats and
serve as travel corridors for manatees (FWC 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 4 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 protection area by normal rulemaking procedures (69 FR 48102).
Three hurricanes that occurred over this region of peninsular Florida
during August through October have resulted in the need for us to
reschedule the public hearing and extend the public comment period for
the proposed rule (appearing in a separate FR notice). However, the
current emergency refuge is temporary and will expire on December 6,
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 in light of the recent natural
disasters.
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
[[Page 70385]]
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
August 6, 2004, is temporary, lasting only through December 6, 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 December 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 December 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 additional time required to complete the
standard rulemaking process, as the result of the hurricanes that
recently hit Florida. The lack of emergency action 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 published
a proposed rule in the Federal Register on August 6, 2004 (69 FR
48102). We anticipate publishing a final rule prior to the date that
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, 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
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.
[[Page 70386]]
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 via State regulations and two previous Federal
emergency rules. 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 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
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
[[Page 70387]]
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-day manatee refuge here. The Service will likely
spend additional funds for enforcement at the 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 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 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
[[Page 70388]]
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 \b\ establishments Number of Number of Number of Number of
County employment \b\ (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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Census County Business Patterns (http://www.census.gov/epcd/cbp/view/cbpview.html).
\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
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.
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 (69 FR 48102, August 6,
2004) 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 have been in place for some time
now, 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 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
[[Page 70389]]
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
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
0
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.
0
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:
(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( 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),
[[Page 70390]]
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[deg]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[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 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 (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''
[[Page 70391]]
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'').
(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 MacKeever 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 MacKeever Keys
and running along and between the general contour of the western
shorelines of said keys to a point (approximate latitude 26[deg]30'27''
North, approximate longitude 82[deg]07'08'' West) on the southernmost
of the MacKeever 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)(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 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
[[Page 70392]]
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) 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,
[[Page 70393]]
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 70394]]
[GRAPHIC] [TIFF OMITTED] TR06DE04.015
[[Page 70395]]
[GRAPHIC] [TIFF OMITTED] TR06DE04.016
Dated: November 26, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-26705 Filed 12-3-04; 8:45 am]