[Federal Register: April 7, 2005 (Volume 70, Number 66)]
[Rules and Regulations]
[Page 17863-17879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap05-14]
[[Page 17863]]
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Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Establishment of an
Additional Manatee Protection Area in Lee County, Florida; Final Rule
[[Page 17864]]
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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: Final rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), establish an
additional manatee protection area in Lee County, Florida (Pine Island-
Estero Bay Manatee Refuge). 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), to further recovery of the
Florida manatee (Trichechus manatus latirostris) by preventing the
taking of one or more manatees. We are designating an area in Lee
County as a manatee refuge in which certain waterborne activities will
be regulated. Specifically, 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 described in the rule. We also announce
the availability of a final environmental assessment for this action.
DATES: Effective date: April 4, 2005
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours from 8 a.m. to 4:30 p.m.
at the South Florida Field Office, U.S. Fish and Wildlife Service, 1339
20th Street, Vero Beach, Florida 32960.
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 the population is further protected as a depleted stock 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 live around 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 seen rarely 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, 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 establishes a moratorium, with certain exceptions, on the
taking and importation of marine mammals and marine mammal products and
makes it unlawful for any person to take, possess, transport, purchase,
sell, export, or offer to purchase, sell, or export, any marine mammal
or marine mammal product unless authorized. Take, as defined by section
3(13) of the MMPA, means to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture, or kill any marine mammal. Harassment is
defined 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 increase is particularly evident in the State of Florida. The
population of Florida has grown by 135 percent from 1970 to 2000 (6.8
million to 15.9 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
(2005), it is expected that, by the year 2010, 14.7 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 more than 26 percent since 1993. The apparent decline in
the number of vessels that were 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. 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 first of
three
[[Page 17865]]
emergency rules for the establishment of the Pine Island-Estero Bay
Manatee Refuge was published in the Federal Register on April 7, 2004
(69 FR 18279). The emergency designation was temporary, lasting only
120 days, and expired on August 5, 2004. On August 6, 2004, we
published a proposed rule in the Federal Register (69 FR 48102) to
establish the Pine Island-Estero Bay Manatee Refuge by standard
rulemaking procedures. In order to provide for continued protection of
this area during the rulemaking process and to allow adequate time for
a public hearing and comments on the proposed designation, we used our
emergency authority to re-establish the temporary Pine Island-Estero
Bay Manatee Refuge, effective on August 6, 2004 (69 FR 48115). This
second emergency designation lasted another 120 days and expired on
December 6, 2004. Due to delays in scheduling the public hearing caused
by the hurricanes affecting peninsular Florida (e.g., Charley, Frances,
and Jeanne) and 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 used our emergency
authority, a third time, to re-establish the temporary Pine Island-
Estero Bay Manatee Refuge, effective on December 6, 2004 (69 FR 70382).
This designation lasted 120 days and expired on April 5, 2005.
Pursuant to 50 CFR 17.103, 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 (50 CFR 17.102).
Reasons for Designating a Manatee Refuge
In deciding to implement this rule, we assessed the effects of a
recent County Court ruling overturning State-designated manatee speed
zones in Lee County (State of Florida Fish and Wildlife Conservation
Commission vs. 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
(FWC) v. Wilkinson et al., boaters, who were issued citations which
alleged different violations of Rule 68C-22.005 (Rule), challenged the
Rule adopted by the FWC 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 FWC 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, manatees inhabit these areas on a regular,
periodic, or continuous basis; and, (2) when the FWC adopts rules, it
must consider the rights of boaters, fishermen and water-skiers and the
restrictions adopted by the FWC 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 boaters.
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 FWC v. Wilkinson et al. 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 protection area.
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 required to
travel 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 these regulations are no longer in effect.
Therefore, without this 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. Also, while the County
Court invalidated State-designated speed limits in the areas adjacent
to navigation channels, it did not invalidate the 25-miles 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 operate 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 designation that receive more seasonal use by
manatees, the slow speed requirements would begin on April 1.
There is a history of watercraft-related manatee mortality in the
area. At least 18 manatees killed in collisions with watercraft have
been recovered in or immediately adjacent to the designated areas since
1999 (http://www.floridamarine.org), with four carcasses recovered in
2004 from the sites that were former State speed zones eliminated by
the court's ruling. Necropsies revealed that these animals died of
wounds from boat collisions.
Manatees make extensive use of these areas, there is a history of
take at these sites, future take will occur without protection
measures, protection measures will be insufficient upon expiration of
the current emergency designation, and we do not anticipate any
alternative protection measures being enacted by State or local
government in sufficient time to reduce
[[Page 17866]]
the likelihood of take occurring. For these reasons, we believe that
establishment of a manatee refuge is necessary to prevent the take of
one or more manatees in these areas.
Definitions
The following terms are defined in 50 CFR 17.102. We present them
here to aid in understanding this 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
water vehicle 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 water vehicle 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: on a plane, in the process of coming
up on or coming off of plane, or creating an excessive wake. A water
vehicle 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 thereof.
Summary of Comments and Recommendations
In the August 6, 2004, proposed rule (69 FR 48102), we requested
all interested parties to submit factual reports or information that
might contribute to the development of a final rule. We published legal
notices announcing the proposal, inviting public comment, and
announcing the schedule for the public hearing in the Fort Myers News-
Press and Cape Coral Daily Breeze. We held the public hearing at the
Harborside Event Center in Fort Myers, Florida, on January 12, 2005,
between 6:30 and 9:30 p.m. Approximately 250 people attended the public
hearing. We received oral comments from 30 individuals. The comment
period closed on February 2, 2005. Their comments and our responses are
summarized below.
During the comment period, we received approximately 4,100 written
and oral comments concerning the proposal. The majority of written
comments were form letters expressing support for the proposed
designation. Most of the substantive comments recommended additional
protection measures to the proposed action. Conversely, many of the
oral comments expressed opposition to the proposed manatee refuge. The
following is a summary of all comments received and our responses.
Comments of a similar nature have been grouped together.
Comment 1: Several commentors recommended that the seasonal zones
be replaced with year-round zones in the final rule.
Response 1: The waterbodies encompassed in this designation receive
extensive manatee use either on a seasonal or year-round basis as
documented in radio telemetry and aerial survey data (FWC 2003). These
areas contain feeding habitat or serve as travel corridors for
manatees. During the colder months (late November through March),
manatees were found less frequently in Estero Bay and the York Island
area; whereas, they use these same waterbodies to forage during the
remainder of the year. Based on these data, seasonal speed zones were
established for these areas in 1999 (slow speed during the warmer
months, 25 miles per hour or unregulated during the colder months). We
considered this information in establishing the Pine Island-Estero Bay
Manatee Refuge. As such, we believe these seasonal zones are an
appropriate protective measure and, provided the regulations are
appropriately enforced, future take in these zones is unlikely.
Comment 2: Several commentors recommended that we establish year-
round slow speed zones for the east-west and north-south channels that
run through San Carlos Bay, waterways that are outside the boundaries
of the proposed Pine Island-Estero Bay Manatee Refuge.
Response 2: Designation of manatee protection areas involves both
scientific and practical considerations. The boundaries for the east-
west channel, known as Miserable Mile, and the north-south channel were
excluded during the configuration of the final rule for the
Caloosahatchee River-San Carlos Bay Manatee Refuge to avoid creating a
boating safety issue in the bay while protecting the shallow water
seagrass beds where the manatees occur. This final rule reflects the
results of indepth analysis of the areas, including careful evaluation
of manatee and watercraft use information, site visits, coordination
with State and local regulatory experts, and review of public comments.
We believe that the current designation boundary is sufficient to
prevent the take of one or more manatees.
Comment 3: Several commentors recommended that we establish the
Pine Island-Estero Bay Manatee Refuge even if the FWC re-establishes
the previous State speed zones.
Response 3: Manatee protection area designations serve different
purposes in different areas. The purpose of this manatee refuge, which
is to establish slow speed zones where none currently exist, is to
minimize the risk of high-speed collisions between watercraft and
manatees in areas where collisions are likely to occur. It should be
noted that if the State and Lee County are able to enact protective
measures comparable to FWC's assessment of the recommendations cited
within the Local Rule Review Committee's Report, we would consider
withdrawing our Federal designation. We are committed to continuing the
protection of the manatee through a cooperative effort with our
management partners at the State and county level, as well as efforts
involving private entities and members of the public. We encourage
State and local measures to improve and maintain manatee protection.
Comment 4: One commentor recommended reducing the current 25-miles
per hour speed limit in the marked channels to a speed slower than 25
miles per hour.
Response 4: We believe that the 25-miles per hour speed zone is
sufficient to prevent the taking of one or more manatees, based on the
establishment of speed zones in other areas. Twenty-five miles per hour
in the channel seems to be a reasonably effective management
alternative in areas where manatee use is well documented and there is
a well defined, marked channel. We have also made our 25-miles per hour
designations consistent with the former State speed zone regulations in
order to minimize the boating public's confusion and to facilitate
signage, enforcement, and compliance, while ensuring appropriate
protection for manatees.
Comment 5: Some commentors stated that the economic effects of the
proposed manatee refuge would be the same as the previously designated
State manatee protection zones since the proposed speed zones are
identical to the former State speed zones.
Response 5: We believe that economic effects would be the same.
Comment 6: Several commentors suggested that we accept the
recommendations in the Local Rule Review Committee's Report and allow
the State and local authorities to provide for manatee protection.
Response 6: We are the Federal agency responsible for manatee
management and protection activities
[[Page 17867]]
under both the ESA and the MMPA. As such, we must take an active role
in regulatory activities involving the manatee. This in no way
diminishes the important role that the State and Lee County play or the
role of the private sector. Recognition is given to both State and
local efforts to establish manatee protection, and we are committed to
supporting these efforts. We have stated that the State should have
leadership in establishing additional manatee protection areas. With
this final rule, we have focused on the sites where there is evidence
at this time showing that these measures are necessary to prevent take
of one or more manatees, and where we determined that Federal action
can effectively address the needs in the particular area. If the State
is successful in implementing their pending rules for Lee County, we
will consider withdrawing the Federal designation of these sites.
Comment 7: A few commentors suggested establishing a 25-miles per
hour speed limit zone around the Shell Island Manatee Refuge.
Response 7: We carefully considered this comment in light of the
increased travel time that would result from our proposed designation.
However, this area represents the confluence between the Caloosahatchee
River and San Carlos Bay. Manatees use this area as a travel corridor
that connects important habitat features in San Carlos Bay and Matlacha
Pass. This area also has a high density of boat traffic and high
diversity of boating activities. In light of the available information,
we have concluded that a year-round slow speed designation should be
applied to this waterway in order to effectively improve manatee
protection in this area.
Comment 8: One commentor stated that the Service does not have the
resources to enforce the additional speed zones associated with the
proposed manatee refuge.
Response 8: We are fully committed to implementing these protection
areas, including enforcement of these areas upon posting. However, we
are very aware of the fact that compliance is critical to the
effectiveness of manatee protection area regulations and that
compliance is facilitated, in large part, by enforcement. We are also
aware that enforcement resources are limited at all levels of
government, and that cooperation among law enforcement agencies is
needed to maximize effectiveness of limited resources. We know that
State and local law enforcement agencies have many enforcement mandates
in addition to manatee protection and that it may be difficult for
these agencies to make enforcement of Federal manatee protection areas
a high priority. We believe that local and State law enforcement
improves compliance with Federal designations and leads to more
effective Federal rules. The final rule has been designed to reflect
the best available information regarding manatee and boating use of
these waters and is also intended to address (to the extent possible)
State and local concerns regarding the rule. Again, we have made our
designations consistent with the former regulations in order to
minimize the boating public's confusion and to facilitate signage,
enforcement, and compliance, while ensuring appropriate protection for
manatees.
Comment 9: Some commentors stated that the final rule establishing
a Federal manatee refuge infringes on State and local rights and self-
government.
Response 9: As it was presented in the ``Background'' section, the
Service's action is not based on State law, but on a Federal regulation
(50 CFR 17.103) which provides the standard for designation of a
manatee protection area. The Service made the decision to establish
this manatee refuge after carefully assessing the impacts the recent
court rulings had on manatee protection as well as the best available
information to evaluate manatee and human interactions at these former
State speed zone sites in Lee County. If the State is successful in
implementing its pending rules for Lee County, we will consider
withdrawing the Federal designation of these sites.
Comment 10: One commentor stated that the proposed manatee refuge
poses a burden to boaters and to the county's economy.
Response 10: We acknowledge that the speed limits would restrict
boater's ability to travel at higher speeds and could result in some
negative effect on recreational boaters and commercial fishermen. We
have not been able to quantify the negative economic effects resulting
from this rule, although we believe they would be small. The
regulations associated with the manatee refuge are identical to the
regulations associated with the former State speed zones which were
established in 1999.
Comment 11: One commentor stated that there are no data that speed
zones protect manatees.
Response 11: While no empirical studies specifically address this
issue, we did consider the effects of speed zones on watercraft-related
manatee mortality in the Caloosahatchee River, where similar
restrictions (State and Federal) have been in place since 2003, to draw
some conclusions regarding their potential effectiveness in the absence
of data. The speed zones coupled with enforcement have so far been
effective in protecting manatees. Our assessment indicates that the
existing zones and the associated enforcement do in fact provide
appropriate protection over most of the areas on the river where
manatees and watercraft are likely to interact. For example,
watercraft-related manatee mortality decreased in the Caloosahatchee
River from 7 manatees in 2002, to 1 manatee in 2003 and 2004,
respectively. Similarly, other areas have experienced the same trend;
for instance, there have been no manatee deaths in the Barge Canal
Federal Manatee Protection Area in Brevard County, Florida, since this
area was posted.
Comment 12: One commentor stated that slower boat speeds increase
the risk of watercraft collisions with manatees.
Response 12: As noted in our response to question 11, there have
been no formal studies to date addressing this issue, however, similar
restrictions on the Caloosahatchee River appear to have significantly
reduced watercraft-related manatee mortalities.
Comment 13: One commentor stated that carcass recovery does not
equate to where manatees are killed or injured by watercraft.
Response 13: Carcass recovery location does not necessarily
correspond with the exact location of death and almost certainly does
not correspond exactly with the point of contact for watercraft related
injuries that result in mortality. However, there is a history of
manatee mortalities in the manatee protection area as a result of
collisions with watercraft. At least 18 manatees killed in collisions
with watercraft have been recovered in the designated areas since 1999,
with four carcasses recovered in 2004 from the sites that were former
State speed zones eliminated by the court's ruling.
Comment 14: One commentor stated that there is no evidence that
protecting manatees will increase tourism.
Response 14: 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. However, we are not able to make an estimate of
this benefit based on the available information.
Comment 15: Two commentors stated that there is no evidence that
slower boat speeds will result in economic benefits to waterfront
property homeowners by reducing the costs to maintain and/or repair
their seawalls.
[[Page 17868]]
Response 15: Due to reduction 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). Bell
and McLean's study (1997) of shoreline property values in Broward
County indicate that, with all other factors being equal, shoreline
property values went up by as much as 15 percent when there was a
manatee slow speed zone adjacent to the property. However, we are not
able to make an estimate of this benefit based on available
information.
Comment 16: One commentor stated that speed zones force boaters to
other non-restricted areas that may not be as enjoyable or as suitable
as the original destinations.
Response 16: Some boaters may have to travel farther to participate
in certain activities or they may choose to forgo some activities.
However, the speed zone restrictions imposed by the rule do not
prohibit any boating activities.
Comment 17: One commentor stated that adding slow speed zones
crowds more boats into areas where boating safety becomes an issue.
Response 17: We were very cognizant of human safety issues when we
designated these former State speed zones as emergency manatee
protection areas and the manatee refuge. Human safety while boating has
always been and will continue to be the responsibility of the vessel
operator. The manatee refuge measures described in this final rule
require vessels to proceed at slow speed and, as such, should enhance
boater safety in these areas. At no site does the designation of these
manatee protection areas place mariners in a position of encountering
high-speed vessel traffic with no alternative safe route (what about
crowding in the navigational channels?). We believe that our final
designation should result in little or no adverse impacts on the
boating public.
Comment 18: One commentor stated that adding slow speed zones
deters boaters from using their boats and encourages them towards other
non-boating activities resulting in decreased spending by recreational
boaters.
Response 18: Please refer to the response to Comment 10.
Comment 19: One commentor stated that speed zone posts and signs
are a navigational hazard.
Response 19: When we propose to designate a Federal manatee
protection area, we must do so in accordance with the provisions of the
United States Aids to Navigation System, part 62 of title 33 of the
Code of Federal Regulations. The primary objective of the aids to
navigation system is to mark navigable channels and waterways,
obstructions adjacent to these waterways, and obstructions in areas of
general navigation which may not be anticipated. Other waters, even if
navigable, are generally not marked. Furthermore, we consider and
assess all options for making the requisite postings safe for the
boating public. Chapter 68D-23 Florida Administrative Code prescribe
the procedures by which the State of Florida permits and regulates the
placement of markers in, on, and over the waters of the state. These
provisions also provide for the design, construction, characteristics
and coloring of all such markers. These regulatory markers noticing
boating restricted areas (speed zones) are authorized only for the
purposes of protecting human life and limb, vessel traffic safety and
maritime property, and manatees. Despite these requirements and
precautions, there may be some waterbodies (e.g., physical
configuration, intensity of boating activities) where the placement of
posts and signs could pose a navigational hazard. Under such
circumstances, the use of buoys instead of posts is a satisfactory
alternative and meets the necessary marking requirements to define a
manatee protection area.
Comment 20: One commentor stated that speed zones force boats to
travel outside of channels increasing the likelihood of groundings and
motor/propeller damage.
Response 20: Boaters in these waterways should be familiar with the
proposed speed zones since they are identical to the former State speed
zones which were in effect from 1999 to 2004. It should be noted that,
while the County Court invalidated State-designated speed limits in the
areas adjacent to navigation channels, it did not invalidate the 25-
miles per hour speed limit in the navigation channels that traverse the
affected area. Thus, the speed limit in the navigation channel was
lower than that of the surrounding, shallower areas. As a result,
shallow-draft high-speed boats capable of traveling outside the
navigation channels could operate at speeds greater than 25 miles per
hour in the areas more likely to be frequented by manatees. This was
one of several factors in our decision to emergency designate a manatee
protection area.
Comment 21: One commentor stated that slow speed zones increase the
likelihood of carbon monoxide poisoning among boaters.
Response 21: To date, we know of no reports citing the occurrence
of carbon monoxide poisoning among Lee County boaters traveling in
these former slow speed zones which were established in 1999 nor do we
have any data or reports of this potential hazard occurring among
boaters statewide.
Comment 22: Two commentors stated that the Service has ignored a
local court's decision which ruled that the former State speed zones
were invalid and failed to adequately consider boaters' rights.
Response 22: The court's decision in FWC vs. Wilkinson et al. was
based on its review of a State statute and administrative code, as
stated in our response to Comment 9. Our action is based on Federal
law.
Comment 23: Two commentors stated that the proposed rule threatens
marine contractors with future moratoriums if Federal interests are not
satisfied.
Response 23: There is no language in the proposed or final rule
that threatens to impose a moratorium on marine-related activities.
This rule does not intend to suspend any activities, simply to modify
speeds at which vessels travel in the areas outline in this rule.
Comment 24: Many commentors recommended that sound science should
be used in establishing manatee speed zones.
Response 24: Designation of manatee protection areas involves both
scientific and practical considerations. This final rule reflects the
results of in-depth analysis of the best available scientific and
commercial data, including careful evaluation of manatee and watercraft
use information. In addition, we have conducted site visits,
coordinated with State and local regulatory experts, and reviewed
public comments.
Comment 25: Some commentors recommended educating the boating
public as a better alternative to implementing more boating rules and
regulations.
Response 25: Education and public awareness are important elements
in the ongoing efforts to protect manatees; however, our analysis of
the best available information indicates that speed zones and their
requisite enforcement are equally important components in the
comprehensive approach toward manatee protection.
Comment 26: Some commentors suggest that the data do not warrant or
support establishing additional manatee speed zones.
Response 26: The Service has conducted an in-depth analysis of the
best available data and evidence at this time has shown that
establishing speed
[[Page 17869]]
zones is necessary to prevent the taking of one or more manatees.
Comment 27: Some commentors believe that Save the Manatee Club will
seek court action if the Service does not establish the Pine Island-
Estero Bay Manatee Refuge.
Response 27: The judicial process is available to all persons or
entities seeking to enforce a legal right or obtain a legal remedy. The
Service cannot dictate the actions of these persons or entities. In
designating the Pine Island-Estero Bay Refuge, the Service was guided
by the provisions of 50 CFR 17.103.
Comment 28: Some commentors suggest eliminating the warm water
discharge from Florida Power and Light's power plant will do more to
protect manatees than establishing additional speed zones.
Response 28: A task force has been established to address issues
related to warm-water discharge. However, this rule deals directly with
mortality resulting from waterborne activities. The areas within the
Pine Island-Estero Bay Manatee Protection Area have significant
potential for ``take'' based on both manatee use and boating use.
Additionally, without Federal protection these areas lack protective
regulations at this time. Therefore, we are establishing this manatee
protection area to prevent further take of manatees resulting from
waterborne activities.
Comment 29: Some commentors stated that, with the manatee
population increasing, there is no need for establishing a Federal
manatee refuge in Lee County.
Response 29: The MMPA sets a general moratorium for the taking of
marine mammals, including manatees. While there are provisions for
incidental take of listed species under the ESA and the MMPA,
authorization for incidental take of manatees under the MMPA has not
been requested, nor have regulations to provide this authorization been
developed. Incidental take of manatees without authorization is
unlawful. Preventing the take of manatees as a result of watercraft
collisions is a top priority in manatee recovery and management
programs. The areas addressed in this rule have a significant potential
for ``take'' based on the amount of manatee use as well as boating use
and are characterized by the lack of current protective regulations.
After evaluating the best available data, we have determined that
designation is warranted pursuant to 50 CFR 17.103.
Comment 30: One commentor expressed concerns with the effects of
the proposed regulations on seaplane operations and recommended that
seaplanes, in general, be excluded from the regulations associated with
the proposed Pine Island-Estero Bay Manatee Refuge.
Response 30: According to our regulations, the terms ``Water
vehicle, watercraft, and vessel'' are defined to 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.'' This
definition is sufficiently broad to include seaplanes, and the slow
speed zones associated with this manatee refuge would effectively
preclude the use of seaplanes on these waterways. We reviewed a similar
comment for the Caloosahatchee River-San Carlos Bay Manatee Refuge and
concluded that the seaplane business operating on the Caloosahatchee
River, at that time, posed an insignificant and discountable threat to
manatees (August 6, 2003; 68 FR 46870; see response to Comment 54). As
far as we knew, there were no other seaplane operations in other parts
of the county that would be affected by the regulations established in
the Caloosahatchee, so we did not adopt a broader exclusion for
seaplanes at the time. However, the aerial survey and telemetry data
indicate the areas encompassing the Pine Island-Estero Bay manatee
refuge receive significant manatee use although the use in Estero Bay
is more seasonal. Given what we know about the distribution of manatees
throughout the refuge, we conclude it is possible that a seaplane could
encounter manatees in the refuge. In addition, during takeoff and
landing, seaplanes operate at speeds in excess of 25 miles per hour
over a distance of approximately 1,500 feet. Therefore, the final rule
effectively prohibits seaplanes from landing or taking off throughout
the Pine Island-Estero Bay Manatee Refuge year-round, although they may
transit Estero Bay at speeds up to 25 miles per hour during the winter
months.
Area Designated 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 connecting waterways. 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.
Effective Date
Under the Administrative Procedure Act, our normal practice is to
publish rules with a 30-day delay in effective date. However, for this
rule, we are using the ``good cause'' exemption under 5 U.S.C.
553(d)(3) to make this rule effective immediately upon publication
because the data indicate manatees utilize these areas year-round,
there is a history of take at these sites, and we do not anticipate any
alternative protection measures being enacted by State or local
governments in sufficient time to reduce the likelihood of take from
occurring. The evidence leading to the imminent danger of taking one or
more manatees is such that the Service established these areas as a
Federal manatee refuge using the emergency rule process on April 7,
2004; August 6, 2004; and December 6, 2004. Future take is imminent if
the effective date of the rule is delayed.
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget has determined that this rule is a
significant regulatory action, as it may raise novel legal or policy
issues The Office of Management and Budget has reviewed this rule.
a. 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 miles of waterways) in Lee County in
the State of Florida.
The purpose of this rule is to establish a 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 slow speed, seasonal slow speed 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
[[Page 17870]]
will impact recreational boaters, commercial charter boats, and
commercial fishermen, primarily in the form of restrictions on boat
speeds in specific areas. We will experience increased administrative
costs due to this rule. Conversely, the rule may also produce economic
benefits for some parties as a result of increased manatee protection
and decreased boat speeds in the manatee refuge areas.
Regulatory impact analysis requires the comparison of expected
costs and benefits of the rule against a ``baseline,'' which typically
reflects the regulatory requirements in existence prior to the
rulemaking. For purposes of this analysis, the baseline assumes that
the Pine Island-Estero Bay area has no regulating speed limits other
than the 25 miles per hour in the navigation channels. The State-
designated speed zones, other than in the navigation channels, have
been lifted by a County Court decision. However, residents and other
waterway users have lived with speed restrictions in these areas since
1999 and have established business and recreational patterns on the
water to accommodate their needs and desires for water-based
recreation. The actual economic effects may very well be insignificant
because almost all users have been previously subject to these
restrictions. Thus, the rule is expected to have only an incremental
effect. As discussed below, the net economic impact is not expected to
be significant, but cannot be monetized given available information.
The actual economic impacts of this rule are expected to be
insignificant and would be due to the changes in speed zone
restrictions in the manatee refuge area. These speed zone changes are
summarized in the proposed and final rules.
In addition to speed zone changes, the rule no longer allows for
the speed zone exemption process in place under State regulations.
Currently, 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.
In order to gauge the economic effect of this rule, both benefits
and costs must be considered. Potential economic benefits related to
this rule include increased manatee protection and tourism related to
manatee viewing, increased number of marine construction permits
issued, increased fisheries health, and decreased seawall maintenance
costs. Potential economic costs are related to increased administrative
activities related to implementing the rule and affected waterborne
activities. Economic costs are measured primarily by the number of
recreationists who use alternative sites for their activity or have a
reduced quality of the waterborne activity experience at the designated
sites. In addition, the rule may have some impact on commercial fishing
because of the need to maintain slower speeds in some areas. The
extension of slower speed zones in this rule is not expected to affect
enough waterborne activity to create a significant economic impact
(i.e., an annual impact of over $100 million).
Economic Benefits
We believe that the designation of the Pine Island-Estero Bay
Manatee Refuge in this rule will increase the level of manatee
protection in the area. 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 less 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 of the designation of a manatee refuge results
from the fact that, in certain areas, boats are required to go slower
than they would under certain 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 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. Consumer surplus, in this case, could be defined as the
difference between what consumers are willing to pay for the trip and
the amount consumers actually pay 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
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,
[[Page 17871]]
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 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 travels
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 refuge, 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-San Carlos Bay Manatee Refuge established
in 2003. Nevertheless, 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. 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 manatee refuge is not known, the
cost of manufacturing and posting signs to delineate the manatee refuge
in this 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
once the final rule is passed. 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 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 rule will affect approximately 30 waterway 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. This rule will not create inconsistencies with other agency
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 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. OMB has determined that this rule may raise legal and policy
issues. Therefore, OMB has reviewed the rule pursuant to E.O. 12866.
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
[[Page 17872]]
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 permit holders were exempt from the speed limits
in the former State-designated speed zones. Since these speed zones
have been in place since 1999 and boaters have adjusted to their
presence and there were no other permit holders, it is reasonable to
expect that the proposed rule will impact only the 27 permit holders.
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.
Except for the former 27 permit holders, this rule will not really
affect the travel time for recreational boating and commercial
activities. 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 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 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
Total Mid- \a\)
March Mid-March Total ---------------------------------------------------------------
County employment employment establishments Total Number of Number of Number of Number of
\b\ (All \b\ (select (all establishments establishments establishments establishments establishments
industries) SIC codes) industries) (1-4 (5-9 (10-19 (20+
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 vast majority (over 80 percent) of these
business establishments in Lee County have fewer than 10 employees,
with the largest number of establishments employing fewer than 4
employees. Any economic impacts associated with this rule will affect
some proportion of these small entities.
Since the 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 former 27 permit holders may constitute
the parties affected by the final rule. The Service does not believe
the 27 permit holders constitute a substantial number. In addition, the
inconvenience of slow speed zones may cause some recreationists to
change their behavior, which may cause some loss of income to some
small businesses. The number of recreationists that will change their
behavior, and how their behavior will change, is unknown; therefore,
the impact on potentially affected small business entities cannot be
quantified. However, because boaters will experience only minimal added
travel time in most affected areas and the fact that speed zones were
in place until recently, we believe that this designation will not
cause a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804 (2). This rule:
a. Does not have an annual effect on the economy of $100 million or
more. As shown above, this rule may cause some inconvenience in the
form of
[[Page 17873]]
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 decreased
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 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 State-owned
submerged lands.
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 under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The
regulation will not impose new record keeping or reporting requirements
on State or local governments, individuals, businesses or
organizations. 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 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
[[Page 17874]]
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 revisng 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 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[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 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 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
[[Page 17875]]
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 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 2200 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)(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 17.108(c)(13)(vi), 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.
[[Page 17876]]
(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 rule).
(x) Watercraft are required to proceed at slow speed from April 1
through November 15 and at not more than 25 miles per hour the
remainder of the year in all waters of Hell Peckney Bay southeast of
Hurricane Bay, northeast of the northern shorelines of Julies Island
and the unnamed island immediately northwest of Julies Island and a
line that bears 312[deg] from the northwesternmost point of Julies
Island (approximate latitude 26[deg]26'37'' North, approximate
longitude 81[deg]54'57'' West), northwest of Estero Bay, and southwest
of a line beginning at the southernmost point (approximate latitude
26[deg]27'23'' North, approximate longitude 81[deg]55'11'' West) of an
unnamed mangrove peninsula in northwest Hell Peckney Bay and bearing
191[deg] to the northernmost point (approximate latitude 26[deg]27'19''
North, approximate longitude 81[deg]55'11'' West) of an unnamed
mangrove island, then running along the northern shoreline of said
island to its southeasternmost point (approximate latitude
26[deg]27'11'' North, approximate longitude 81[deg]55'05'' West), then
bearing 115[deg] to a point (approximate latitude 26[deg]27'03'' North,
approximate longitude 81[deg]54'47'' West) on the northwest shoreline
of an unnamed mangrove island, then running along the northern
shoreline of said island to its northeasternmost point (approximate
latitude 26[deg]27'02'' North, approximate longitude 81[deg]54'33''
West), and then bearing 37[deg] to the line's terminus at the
westernmost point of an unnamed mangrove peninsula in eastern Hell
Peckney Bay.
(xi) Watercraft are required to proceed at slow speed from April 1
through November 15 and at not more than 25 miles per hour the
remainder of the year in all waters of Hendry Creek south of a line
that bears 270[deg] from a point (approximate latitude 26[deg]28'40''
North, approximate longitude 81[deg]52'56'' West) on the eastern
shoreline of Hendry Creek; and all waters of Estero Bay southeast and
east of Hell Peckney Bay, a line that bears 340[deg] from a point
(approximate latitude 26[deg]25'56'' North, approximate longitude
81[deg]54'25'' West) on the northern tip of an unnamed mangrove
peninsula on the northeastern shoreline of Estero Island, and the
northern shoreline of Estero Island, south of Hendry Creek and a line
that bears 135[deg] and 315[deg] from Red Channel Marker 18
(approximate latitude 26[deg]27'46'' North, approximate longitude
81[deg]52'00'' West) in Mullock Creek, and north of a line that bears
72[deg] from the northernmost point (approximate latitude
26[deg]24'22'' North, approximate longitude 81[deg]52'34'' West) of
Black Island, including the waters of Buccaneer Lagoon at the southern
end of Estero Island, but excluding:
(A) The portions of the marked channels otherwise designated in
paragraph (c)(13)(xiii) of this section;
(B) The Estero River; and
(C) To waters of Big Carlos Pass east of a line beginning at a
point (approximate latitude 26[deg]24'34'' North, approximate longitude
81[deg]53'05'' West) on the eastern shoreline of Estero Island and
bearing 36[deg] to a point (approximate latitude 26[deg]24'40'' North,
approximate longitude 81[deg]53'00'' West) on the southern shoreline of
Coon Key, south of a line beginning at a point (approximate latitude
26[deg]24'36'' North, approximate longitude 81[deg]52'30'' West) on the
eastern shoreline of Coon Key and bearing 106[deg] to a point
(approximate latitude 26[deg]24'39'' North, approximate longitude
81[deg]52'34'' West) on the southwestern shoreline of the unnamed
mangrove island north of Black Island, and west of a line beginning at
a point (approximate latitude 26[deg]24'36'' North, approximate
longitude 81[deg]52'30'' West) on the southern shoreline of said
unnamed mangrove island north of Black Island and bearing 192[deg] to
the northernmost point (approximate latitude 26[deg]24'22'' North,
approximate longitude 81[deg]52'34'' West) of Black Island.
(xii) Watercraft are required to proceed at slow speed from April 1
through November 15 and at not more than 25 miles per hour the
remainder of the year in all waters of Estero Bay and Big Hickory Bay
south of a line that bears 72[deg] from the northernmost point
(approximate latitude 26[deg]24'22'' North, approximate longitude
81[deg]52'34'' West) of Black Island, east of the centerline of State
Road 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 17.108(c)(13)(xiii) 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)
[[Page 17877]]
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)(13)(xi) of this section);
(F) All waters of the marked channel commonly known as Alternate
Route Channel, with said channel generally running between Channel
Marker 1 (approximate latitude 26[deg]24'29'' North, approximate
longitude 81[deg]51'53'' West) and Channel Marker 10 (approximate
latitude 26[deg]24'00'' North, approximate longitude 81[deg]51'09''
West);
(G) All waters of the marked channel commonly known as Coconut
Channel, with said channel generally running between Channel Marker 1
(approximate latitude 26[deg]23'44'' North, approximate longitude
81[deg]50'55'' West) and Channel Marker 23 (approximate latitude
26[deg]24'00'' North, approximate longitude 81[deg]50'30'' West);
(H) All waters of the marked channel commonly known as Southern
Passage Channel, with said channel generally running between Channel
Marker 1 (approximate latitude 26[deg]22'58'' North, approximate
longitude 81[deg]51'57'' West) and Channel Marker 22 (approximate
latitude 26[deg]23'27'' North, approximate longitude 81[deg]50'46''
West); and
(I) All waters of the marked channel leading from the Southern
Passage Channel to Spring Creek, west of the mouth of Spring Creek.
(xiv) Maps of the Pine Island-Estero Bay Manatee Refuge follow:
BILLING CODE 4310-55-P
[[Page 17878]]
[GRAPHIC] [TIFF OMITTED] TR07AP05.002
[[Page 17879]]
[GRAPHIC] [TIFF OMITTED] TR07AP05.003
Dated: April 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-6919 Filed 4-4-05; 2:49 pm]
BILLING CODE 4310-55-C