[Federal Register Volume 69, Number 233 (Monday, December 6, 2004)]
[Rules and Regulations]
[Pages 70382-70395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26705]


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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: Emergency rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), as required by 
regulation, hereby provide notice of the termination of the emergency

[[Page 70383]]

establishment of the Pine Island-Estero Bay Refuge, which was effective 
upon publication of a rule in the Federal Register on August 6, 2004, 
until December 6, 2004. We also published a proposed rule to establish 
these areas as the Pine Island-Estero Bay Manatee Refuge by standard 
rulemaking procedures on August 6, 2004. Due to delays caused by recent 
hurricanes in Florida (i.e., Charley, Frances, and Jeanne) and in order 
to provide for continued protection of this area during the rulemaking 
process, while allowing adequate time for public hearings and comments 
on the proposed designation, we are hereby using our emergency 
authority to re-establish the temporary Pine Island-Estero Bay Refuge, 
effective December 6, 2004. The area established by this rule will be a 
manatee refuge, and watercraft will be required to proceed at either 
``slow speed'' or at not more than 25 miles per hour, on an annual or 
seasonal basis, as marked. While adjacent property owners must comply 
with the speed restrictions, the designation will not preclude ingress 
and egress to private property. This action is authorized under the 
Endangered Species Act of 1973, as amended (ESA), and the Marine Mammal 
Protection Act of 1972, as amended (MMPA), based on our determination 
that there is substantial evidence of imminent danger of taking one or 
more manatees and the emergency designation of a manatee refuge is 
necessary to prevent such taking. In evaluating the need for emergency 
designation of this manatee protection area, we considered the 
biological needs of the manatee, the level of take at these sites, and 
the likelihood of additional take of manatees due to human activity. We 
anticipate making a final determination on these sites in a final rule 
within the 120-day effective period of this emergency designation, 
unless State or local governments implement measures at these sites 
that would, in our view, make such establishment unnecessary to prevent 
the taking of one or more manatees.

DATES: In accordance with 50 CFR 17.106, the effective date for this 
action will be December 6, 2004, which will also be the date of 
publication in the following newspapers: Fort Myers News-Press; Cape 
Coral Daily Breeze; and, Naples Daily News. This emergency action will 
remain in effect for 120 days after publication in the Federal Register 
(through April 5, 2005).

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the South Florida ES 
Field Office, U.S. Fish and Wildlife Service, 1339 20th Street, Vero 
Beach, Florida 32960.

FOR FURTHER INFORMATION CONTACT: Jay Slack (see ADDRESSES section), 
telephone (772) 562-3909.

SUPPLEMENTARY INFORMATION:

Background

    The West Indian manatee (Trichecus manatus) is federally listed as 
an endangered species under the ESA (16 U.S.C. 1531 et seq.) (32 FR 
4001) and is further protected under the MMPA (16 U.S.C. 1361-1407). 
Manatees reside in freshwater, brackish, and marine habitats in coastal 
and inland waterways of the southeastern United States. The majority of 
the population can be found in waters of the State of Florida 
throughout the year, and nearly all manatees winter in peninsular 
Florida during the winter months. The manatee is a cold-intolerant 
species and requires warm water temperatures generally above 20 
[deg]Celsius (68 [deg]Fahrenheit) to survive during periods of cold 
weather. During the winter months, most manatees rely on warm water 
from natural springs and industrial discharges for warmth. In warmer 
months, they expand their range and are occasionally seen as far north 
as Rhode Island on the Atlantic Coast and as far west as Texas on the 
Gulf Coast.
    Recent information indicates that the overall manatee population 
has grown since the species was listed (Service 2001). However, in 
order for us to determine that an endangered species has recovered to a 
point that it warrants removal from the List of Endangered and 
Threatened Wildlife and Plants, the species must have improved in 
status to the point at which listing is no longer appropriate under the 
criteria set out in section 4(a)(1) of the ESA.
    Human activities, and particularly waterborne activities, can 
result in the take of manatees. Take, as defined by the ESA, means to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, 
or to attempt to engage in any such conduct. Harm means an act which 
kills or injures wildlife (50 CFR 17.3). Such an act may include 
significant habitat modification or degradation that kills or injures 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering. Harass includes intentional 
or negligent acts or omissions that create the likelihood of injury to 
wildlife by annoying it to such an extent as to significantly disrupt 
normal behavioral patterns, which include, but are not limited to, 
breeding, feeding, or sheltering (50 CFR 17.3).
    The MMPA sets a general moratorium, with certain exceptions, on the 
take and importation of marine mammals and marine mammal products and 
makes it unlawful for any person to take, possess, transport, purchase, 
sell, export, or offer to purchase, sell, or export, any marine mammal 
or marine mammal product unless authorized. Take, as defined by section 
3(13) of the MMPA, means to harass, hunt, capture, or kill, or attempt 
to harass, hunt, capture, or kill any marine mammal. Harassment is 
defined by section 3(18) of the MMPA as any act of pursuit, torment, or 
annoyance which--(i) has the potential to injure a marine mammal or 
marine mammal stock in the wild; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing disruption 
of behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering.
    Human use of the waters of the southeastern United States has 
increased as a function of residential growth and increased visitation. 
This increased use is particularly evident in the State of Florida. The 
population of Florida has grown by 124 percent since 1970 (6.8 million 
to 15.2 million, U.S. Census Bureau) and is expected to exceed 18 
million by 2010, and 20 million by the year 2020. According to a report 
by the Florida Office of Economic and Demographic Research (2000), it 
is expected that, by the year 2010, 13.7 million people will reside in 
the 35 coastal counties of Florida. In a parallel fashion to 
residential growth, visitation to Florida has also increased. It is 
expected that Florida will have 83 million visitors annually by the 
year 2020, up from 48.7 million visitors in 1998. In concert with this 
increase of human population growth and visitation is the increase in 
the number of watercraft that travel Florida waters. In 2003, 743,243 
vessels were registered in the State of Florida. This represents an 
increase of 26 percent since 1993.
    The large increase in human use of manatee habitat has had direct 
and indirect impacts on this endangered species. Direct impacts include 
injuries and deaths from watercraft collisions, deaths and injuries 
from water control structure operations, lethal and sublethal 
entanglements with commercial and recreational fishing gear, and 
alterations of behavior due to harassment. Indirect impacts include 
habitat destruction and alteration, including decreases in water 
quality throughout some aquatic habitats, decreases in the quantity of 
warm water

[[Page 70384]]

in natural spring areas, the spread of marine debris, and general 
disturbance from human activities.
    Federal authority to establish protection areas for the Florida 
manatee is provided by the ESA and the MMPA and is codified in 50 CFR, 
part 17, subpart J. We have discretion, by regulation, to establish 
manatee protection areas whenever there is substantial evidence showing 
such establishment is necessary to prevent the taking of one or more 
manatees. In accordance with 50 CFR 17.106, areas may be established on 
an emergency basis when such takings are imminent.
    We may establish two types of manatee protection areas--manatee 
refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR 
17.102, is an area in which we have determined that certain waterborne 
activities would result in the taking of one or more manatees, or that 
certain waterborne activities must be restricted to prevent the taking 
of one or more manatees, including but not limited to, taking by 
harassment. A manatee sanctuary, as defined in 50 CFR 17.102, is an 
area in which we have determined that any waterborne activity would 
result in the taking of one or more manatees, including but not limited 
to, taking by harassment. A waterborne activity is defined as 
including, but not limited to, swimming, diving (including skin and 
scuba diving), snorkeling, water skiing, surfing, fishing, the use of 
water vehicles, and dredge and fill activities.

Reasons for Emergency Determination

    In deciding to implement this emergency rule, we assessed the 
effects of a recent State court ruling overturning critically 
important, State-designated manatee protection zones in Lee County. In 
this case, (State of Florida Fish and Wildlife Conservation Commission 
(FFWCC) v. William D. Wilkinson, Robert W. Watson, David K. Taylor, 
James L. Frock (2 Cases), Jason L. Fluharty, Kenneth L. Kretsh, Harold 
Stevens, Richard L. Eyler, and John D. Mills), boaters, who were issued 
citations for alleged different violations of Rule 68C-22.005 (Rule), 
challenged the Rule adopted by the FFWCC regulating the operation and 
speed of motorboat traffic in Lee County waters to protect manatees. In 
its ruling the court determined that under Florida law the FFWCC can 
regulate the operation and speed of motorboats in order to protect 
manatees from harmful collisions with motorboats, however: (1) In the 
area to be regulated, manatee sightings must be frequent and, based 
upon available scientific information, it has been determined that 
manatees inhabit the area on a regular, periodic, or continuous basis; 
and (2) when the FFWCC adopts rules, it must consider the rights of 
boaters, fishermen, and water-skiers, and the restrictions adopted by 
the FFWCC must not unduly interfere with those rights. In this instance 
the court found that the Rule for four of the regulated areas did not 
meet the State standard for the frequency of sightings and the rule 
unduly interfered with the rights of voters. Thus, the designated 
manatee protection zones were invalidated, and the citations were 
dismissed.
    The legal basis for the action to be taken by the Service differs 
markedly from that in the FFWCC v. Wilkinson case. The Service's action 
is not based on State law but rather is based upon a Federal 
regulation, 50 CFR 17.106(a), which provides the standard for an 
emergency designation of a protected area. Specifically, this 
regulation provides that a manatee protection area may be established 
``* * * at any time [the Director] determines there is substantial 
evidence that there is imminent danger of a taking of one or more 
manatees, and that such establishment is necessary to prevent such a 
taking.''
    We also reviewed the best available information to evaluate manatee 
and human interactions in these areas. Manatees are especially 
vulnerable to fast-moving power boats. The slower a boat is traveling, 
the more time a manatee has to avoid the vessel and the more time the 
boat operator has to detect and avoid the manatee. Nowacek et al. 
(2000) documented manatee avoidance of approaching boats. Wells et al. 
(1999) confirmed that, at a response distance of 20 meters, a manatee's 
time to respond to an oncoming vessel increased by at least 5 seconds 
if the vessel was traveling at slow speed. Therefore, the potential for 
take of manatees can be greatly reduced if boats are required to travel 
at slow speed in areas where manatees can be expected to occur.
    The waterbodies encompassed in this emergency designation receive 
extensive manatee use either on a seasonal or year-round basis as 
documented in radio telemetry and aerial survey data (FWC, also 
abbreviated as FFWCC, 2003). The areas contain feeding habitats and 
serve as travel corridors for manatees (FWC 2003). They have also been 
regulated at either slow speed or with a 25-mile-per-hour speed limit 
by State government since 1999, prior to the State court ruling in 
FFWCC v. William D. Wilkinson et al. in December, 2003. Without this 
emergency Federal designation, watercraft can be expected to travel at 
high speeds in areas frequented by manatees, which would result in the 
take of one or more manatees. In fact, boat operators could 
inadvertently be encouraged to travel at high speeds. While the State 
court invalidated speed limits in the areas adjacent to navigation 
channels, it did not invalidate the 25-mile-per-hour speed limit in the 
navigation channels that traverse the affected area. Therefore, the 
speed limit in the navigation channel is now lower than that of the 
surrounding, shallower areas. As a result, shallow-draft high-speed 
boats capable of traveling outside the navigation channels can be 
expected to be operated at high speeds (greater than 25 miles per hour) 
in the areas more likely to be frequented by manatees.
    There is a history of manatee mortalities in the area as a result 
of collisions with watercraft. At least 18 carcasses of manatees killed 
in collisions with watercraft have been recovered in or immediately 
adjacent to the designated areas since 1999 (http://www.floridamarine.org, 2004), with 4 carcasses recently recovered in 
close proximity to the sites following the State court action. 
Necropsies revealed that these animals died of wounds received from 
boat collisions. On August 6, 2004, we published a proposed rule to 
establish the Pine Island-Estero Bay Manatee Refuge as a permanent 
manatee protection area by normal rulemaking procedures (69 FR 48102). 
Three hurricanes that occurred over this region of peninsular Florida 
during August through October have resulted in the need for us to 
reschedule the public hearing and extend the public comment period for 
the proposed rule (appearing in a separate FR notice). However, the 
current emergency refuge is temporary and will expire on December 6, 
2004, prior to the closing of the public review and comment period on 
the proposed rule. Without the emergency designation, these areas would 
not receive the needed protection because of the time necessary to 
complete the normal rulemaking process in light of the recent natural 
disasters.
    For these reasons, we believe that there is imminent danger of take 
of one or more manatees in these areas and emergency designation of a 
manatee refuge is necessary to prevent such taking. Manatees utilize 
these areas, there is a history of take at these sites, future take is 
imminent, protection measures are insufficient, and we do not 
anticipate any alternative protection measures being enacted by State 
or local

[[Page 70385]]

government in sufficient time to reduce the likelihood of take 
occurring.

Effective Date

    We are making this rule effective upon publication. In accordance 
with the Administrative Procedure Act, we find good cause as required 
by 5 U.S.C. 553(d)(3) to make this rule effective sooner than 30 days 
after publication in the Federal Register. As discussed under ``Reasons 
for Emergency Determination,'' the emergency manatee refuge established 
August 6, 2004, is temporary, lasting only through December 6, 2004. 
Since the standard rulemaking process for creating a permanent refuge 
here could not be completed before expiration of the emergency refuge, 
re-establishment of the emergency manatee protection area must be 
effective December 6, 2004, in order to prevent a lapse in protection. 
Any further delay in making this manatee refuge effective would result 
in further risks of manatee mortality, injury, and harassment during 
the period of delay. In view of the finding of substantial evidence 
that taking of manatees is imminent and in fact has already occurred in 
or in close proximity to the site, we believe good cause exists to make 
this rule effective December 6, 2004. For the same reasons, we also 
believe that we have good cause under 5 U.S.C. 553(b)(3)(B) to issue 
this rule without prior notice and public procedure. We believe such 
emergency action is in the public interest because of the imminent 
threat to manatees and the additional time required to complete the 
standard rulemaking process, as the result of the hurricanes that 
recently hit Florida. The lack of emergency action would probably 
result in additional take of manatees. This rule does not supersede any 
more stringent State or local regulations.

Future Federal Actions

    Once this emergency rule is in effect, the emergency designation is 
temporary and applies to these areas for only 120 days. We believe the 
danger to manatees due to watercraft collisions in the Pine Island-
Estero Bay area is not only imminent, but also ongoing and year-round. 
Accordingly, we are proceeding with the normal rulemaking process to 
establish an additional manatee protection area in Lee County, Florida, 
in accordance with 50 CFR 17.103. As part of this process, we published 
a proposed rule in the Federal Register on August 6, 2004 (69 FR 
48102). We anticipate publishing a final rule prior to the date that 
this emergency rule expires.

Definitions

    ``Planing'' means riding on or near the water's surface as a result 
of the hydrodynamic forces on a watercraft's hull, sponsons 
(projections from the side of a ship), foils, or other surfaces. A 
watercraft is considered on plane when it is being operated at or above 
the speed necessary to keep the vessel planing.
    ``Slow speed'' means the speed at which a watercraft proceeds when 
it is fully off plane and completely settled in the water. Due to the 
different speeds at which watercraft of different sizes and 
configurations may travel while in compliance with this definition, no 
specific speed is assigned to slow speed. A watercraft is not 
proceeding at slow speed if it is: (1) On a plane, (2) in the process 
of coming up on or coming off of plane, or (3) creating an excessive 
wake. A watercraft is proceeding at slow speed if it is fully off plane 
and completely settled in the water, not creating an excessive wake.
    ``Wake'' means all changes in the vertical height of the water's 
surface caused by the passage of a watercraft, including a vessel's bow 
wave, stern wave, and propeller wash, or a combination of these.
    ``Water vehicle, watercraft,'' and ``vessel'' include, but are not 
limited to, boats (whether powered by engine, wind, or other means), 
ships (whether powered by engine, wind, or other means), barges, 
surfboards, personal watercraft, water skis, or any other device or 
mechanism the primary or an incidental purpose of which is locomotion 
on, across, or underneath the surface of the water.

Area Designated as a Manatee Refuge by Emergency Rule

Pine Island-Estero Bay Manatee Refuge

    The Pine Island-Estero Bay Manatee Refuge encompasses water bodies 
in Lee County including portions of Matlacha Pass and San Carlos Bay 
south of Green Channel Marker ``77'' and north of the Intracoastal 
Waterway, portions of Pine Island Sound in the vicinity of York and 
Chino Islands, portions of Punta Rassa Cove and Shell Creek in San 
Carlos Bay and the mouth of the Caloosahatchee River, and portions of 
Estero Bay and associated water bodies. These water bodies are 
designated, as posted, as either slow speed or with a speed limit of 25 
miles per hour, on either a seasonal or annual basis. Legal 
descriptions and maps are provided in the ``Regulation Promulgation'' 
section of this notice.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this emergency rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
emergency rule clearly stated? (2) Does the emergency rule contain 
unnecessary technical language or jargon that interferes with the 
clarity? (3) Does the format of the emergency rule (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Is the description of the emergency rule in the 
``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? (5) What else could we do to make the 
emergency rule easier to understand?
    Send a copy of any comments that affect how we could make this 
emergency rule easier to understand to: Office of Regulatory Affairs; 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. The Office of Management and 
Budget makes the final determination under Executive Order 12866.
    a. Based on experience with similar rulemakings in this area, this 
rule will not have an annual economic impact of over $100 million or 
adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. It is not expected that any 
significant economic impacts would result from the establishment of a 
manatee refuge (approximately 30 river miles) in Lee County in the 
State of Florida.
    The purpose of this rule is to establish an emergency manatee 
refuge in Lee County, Florida. We are preventing the take of manatees 
by controlling certain human activity in this County. For the manatee 
refuge, the areas are year-round or seasonal slow speed, or year-round 
or seasonal speed limits of 25 miles per hour. Affected waterborne 
activities include, but are not limited to, transiting, cruising, water 
skiing, fishing, marine construction, and the use of all water 
vehicles. This rule will impact recreational boaters, commercial 
charter boats, and commercial fishermen, primarily in the form of 
restrictions on boat speeds in specific areas. We will experience 
increased administrative costs due to this rule.

[[Page 70386]]

Conversely, the rule may also produce economic benefits for some 
parties as a result of increased manatee protection and decreased boat 
speeds in the manatee refuge areas.
    Regulatory impact analysis requires the comparison of expected 
costs and benefits of the rule against a ``baseline,'' which typically 
reflects the regulatory requirements in existence prior to the 
rulemaking. For purposes of this analysis, the baseline assumes that 
the Pine Island-Estero Bay area has no regulating speed limits other 
than the 25 miles per hour in the navigation channels. The State-
designated speed zones, other than in the navigation channels, have 
been lifted by a State Court decision. However, residents and other 
water users have lived with speed restrictions in this area for many 
years and have established business and recreational patterns on the 
water to accommodate their needs and desires for water-based 
recreation. Even though the baseline is set at no speed zones, the 
actual economic effects may very well be insignificant for this 120-day 
emergency rule because almost all users have been previously subject to 
these restrictions via State regulations and two previous Federal 
emergency rules. Thus, the rule is expected to have only an incremental 
effect. As discussed below, the net economic impact is not expected to 
be significant, but cannot be monetized given available information.
    The economic impacts of this rule would be due to the changes in 
speed zone restrictions in the manatee refuge areas. These speed zone 
changes are summarized in the emergency rule.
    In addition to speed zone changes, the rule no longer allows for 
the speed zone exemption process in place under State regulations. 
Florida's Manatee Sanctuary Act allows the State to provide exemptions 
from speed zone requirements for certain commercial activities, 
including fishing and events such as high-speed boat races. Under State 
law, commercial fishermen and professional fishing guides can apply for 
permits granting exemption from speed zone requirements in certain 
counties. Speed zone exemptions were issued to 27 permit holders in the 
former State zones that comprise the proposed manatee refuge area. One 
permit holder from previous years did not renew at the last 
opportunity.
    In order to gauge the economic effect of this rule, both benefits 
and costs must be considered. Potential economic benefits related to 
this rule include increased manatee protection and tourism related to 
manatee viewing, increased fisheries health, and decreased seawall 
maintenance costs. Potential economic costs are related to increased 
administrative activities related to implementing the rule and affected 
waterborne activities. Economic costs are measured primarily by the 
number of recreationists who use alternative sites for their activity 
or have a reduced quality of the waterborne activity experience at the 
designated sites. In addition, the rule may have some impact on 
commercial fishing because of the need to maintain slower speeds in 
some areas. The extension of slower speed zones in this rule is not 
expected to affect enough waterborne activity to create a significant 
economic impact (i.e., an annual impact of over $100 million).

Economic Benefits

    We believe that the designation of the Pine Island-Estero Bay 
Manatee Refuge in this rule will increase the level of manatee 
protection in these areas. A potential economic benefit is increased 
tourism resulting from an increase in manatee protection. To the extent 
that some portion of Florida's tourism is due to the existence of the 
manatee in Florida waters, the protection provided by this rule may 
result in an economic benefit to the tourism industry. We are not able 
to make an estimate of this benefit given available information.
    In addition, due to reductions in boat wake associated with speed 
zones, property owners may experience some economic benefits related to 
decreased expenditures for maintenance and repair of shoreline 
stabilization structures (i.e., seawalls along the water's edge). Speed 
reductions may also result in increased boater safety. Another 
potential benefit of slower speeds is that fisheries in these areas may 
be more productive because of reduced disturbance. These types of 
benefits cannot be quantified with available information.
    Based on previous studies, we believe that this rule produces some 
economic benefits. However, given the lack of information available for 
estimating these benefits, the magnitude of these benefits is unknown.

Economic Costs

    The economic impact from the designation of a manatee protection 
area affects boaters in these areas, in that boats are required to go 
slower than under current conditions. Some impacts may be felt by 
recreationists who have to use alternative sites for their activity or 
who have a reduced quality of the waterborne activity experience at the 
designated sites because of the rule. For example, the extra time 
required for anglers to reach fishing grounds could reduce onsite 
fishing time and could result in lower consumer surplus for the trip. 
Other impacts of the rule may be felt by commercial charter boat 
outfits, commercial fishermen, and agencies that perform administrative 
activities related to implementing the rule.

Affected Recreational Activities

    For some boating recreationists, the inconvenience and extra time 
required to cross additional slow speed areas may reduce the quality of 
the waterborne activity or cause them to forgo the activity. This will 
manifest in a loss of consumer surplus to these recreationists. In 
addition, to the extent that recreationists forgo recreational 
activities, this could result in some regional economic impact. In this 
section, we examine the waterborne activities taking place in each area 
and the extent to which they may be affected by designation of the 
manatee refuges. The resulting potential economic impacts are discussed 
below. These impacts cannot be quantified because the number of 
recreationists and anglers using the designated sites is not known.
    Recreationists engaging in cruising, fishing, and waterskiing may 
experience some inconvenience by having to go slower or use 
undesignated areas; however, the extension of slow speed zones is not 
likely to result in a significant economic impact.
    Currently, not enough data are available to estimate the loss in 
consumer surplus that water skiers will experience. While some may use 
substitute sites, others may forgo the activity. The economic impact 
associated with these changes on demand for goods and services is not 
known. However, given the number of recreationists potentially 
affected, and the fact that alternative sites are available, it is not 
expected to amount to a significant economic impact. Until recently, 
speed zones were in place in this area and recreationists have adjusted 
their activities to accommodate them. It is not expected that, for a 
120-day emergency rule, there would be a significant loss in consumer 
surplus from this activity.

Affected Commercial Charter Boat Activities

    Various types of charter boats use the waterways in the affected 
counties, primarily for fishing and nature tours. The number of charter 
boats using the Pine Island-Estero Bay areas is currently unknown. For 
nature tours, the extension of slow speed zones is unlikely to cause a 
significant impact, because these boats are likely traveling at slow 
speeds. The extra time required

[[Page 70387]]

for commercial charter boats to reach fishing grounds could reduce 
onsite fishing time and could result in fewer trips. The fishing 
activity is likely occurring at a slow speed and will not be affected. 
Added travel time may affect the length of a trip, which could result 
in fewer trips overall, creating an economic impact.

Affected Commercial Fishing Activities

    Several commercial fisheries will experience some impact due to the 
regulation. To the extent that the regulation establishes additional 
speed zones in commercial fishing areas, this will increase the time 
spent on the fishing activity, affecting the efficiency of commercial 
fishing. While limited data are available to address the size of the 
commercial fishing industry in the manatee refuges, county-level data 
generally provide an upper bound estimate of the size of the industry 
and potential economic impact.
    Given available data, the impact on the commercial fishing industry 
of extending slow speed zones in the Pine Island-Estero Bay area cannot 
be quantified. The designation will likely affect commercial fishermen 
by way of added travel time, which can result in an economic impact. 
Some of the 27 active permit holders with speed limit exemptions are 
commercial fishermen. However, because the manatee refuge designation 
will not prohibit any commercial fishing activity, and because there is 
a channel available for boats to travel up to 25 miles per hour in the 
affected areas, the Service believes that it is unlikely that the rule 
will result in a significant economic impact on the commercial fishing 
industry. It is important to note that, in 2001, the total annual value 
of potentially affected fisheries was approximately $8.3 million 
(2001$); this figure represents the economic impact on commercial 
fisheries in these counties in the unlikely event that the fisheries 
would be entirely shut down, which is not the situation associated with 
this rule.

Agency Administrative Costs

    The cost of implementing the rule has been estimated based on 
historical expenditures by the Service for manatee refuges and 
sanctuaries established previously. Since temporary signage is still in 
place from the previous emergency refuge in this location, and is still 
appropriate, we anticipate little or no additional costs for re-
establishment of a 120-day manatee refuge here. The Service will likely 
spend additional funds for enforcement at the manatee refuge for 120 
days. These costs cannot be accurately estimated at this time. The 
costs of enforcement may include hiring and training new law 
enforcement agents and special agents, and the associated training, 
equipment, upkeep, and clerical support (Service 2003b). Finally, there 
are some costs for education and outreach to inform the public about 
this manatee refuge area.
    While the State of Florida has 12,000 miles of rivers and 3 million 
acres of lakes, this rule will affect approximately 30 river miles. The 
speed restrictions in this rule will cause inconvenience due to added 
travel time for recreationists and commercial charter boats and 
fishermen. As a result, the rule will impact the quality of waterborne 
activity experiences for some recreationists, and may lead some 
recreationists to forgo the activity. This rule does not prohibit 
recreationists from participating in any activities. Alternative sites 
are available for all waterborne activities that may be affected by 
this rule. The distance that recreationists may have to travel to reach 
an undesignated area varies. The regulation will likely impact some 
portion of the charter boat and commercial fishing industries in these 
areas as well. The inconvenience of having to go somewhat slower in 
some areas may result in changes to commercial and recreational 
behavior, resulting in some regional economic impacts. Given available 
information, the net economic impact of designating the manatee refuge 
is not expected to be significant (i.e., an annual economic impact of 
over $100 million). While the level of economic benefits that may be 
attributable to the manatee refuge is unknown, these benefits would 
cause a reduction in the economic impact of the rule.
    b. The precedent to establish manatee protection areas has been 
established primarily by State and local governments in Florida. We 
recognize the important role of State and local partners and continue 
to support and encourage State and local measures to improve manatee 
protection. We are designating the Pine Island-Estero Bay area, where 
previously existing State designations have been eliminated, to protect 
the manatee population in that area.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Minimal restriction to existing human uses of the sites would result 
from this rule. No entitlements, grants, user fees, loan programs, or 
effects on the rights and obligations of their recipients are expected 
to occur.
    d. This rule does not raise novel legal or policy issues. We have 
previously established other manatee protection areas.

Regulatory Flexibility Act

    We certify that this rule will not have a significant economic 
effect on a substantial number of small entities as defined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial/final 
Regulatory Flexibility Analysis is not required. Accordingly, a Small 
Entity Compliance Guide is not required.
    In order to determine whether the rule will have a significant 
economic effect on a substantial number of small entities, we utilize 
available information on the industries most likely to be affected by 
the designation of the manatee refuge. Currently, no information is 
available on the specific number of small entities that are potentially 
affected. However, 27 active permit holders were exempt from the speed 
limits in the proposed refuge area. Because these zones have been in 
place since 1999 and people have adjusted and there were no other 
permit holders, it is reasonable to expect that the emergency rule will 
impact only the 27 permit holders in the former State speed zones. They 
are primarily commercial fishing boats and fishing guides. Both would 
be considered small businesses. The 27 permit holders had State 
exemptions from the speed restrictions based on an application that 
stated they would suffer at least a 25 percent income loss without the 
permit. The usual income level for these businesses is not known, 
however a 25 percent loss of business income is significant regardless 
of the level of business income. We acknowledge that there could be a 
significant loss of income to those permit holders that rely on speed 
to carry out their business activities, however, the Service believes 
that the 27 permit holders do not constitute a substantial number.
    This rule will add to travel time for recreational boating and 
commercial activities resulting from extension of existing speed zones. 
Because the only restrictions on recreational activity result from 
added travel time, and alternative sites are available for all 
waterborne activities, we believe that the economic effect on small 
entities resulting from changes in recreational use patterns will not 
be significant. The economic effects on most small businesses resulting 
from this rule are likely to be indirect effects related to a reduced 
demand for goods and services if recreationists choose to reduce their 
level of participation in waterborne

[[Page 70388]]

activities. Similarly, because the only restrictions on commercial 
activity result from the inconvenience of added travel time, and boats 
can continue to travel up to 25 mph in the navigation channels, we 
believe that any economic effect on small commercial fishing or charter 
boat entities (other than the 27 permit holders) will not be 
significant. Also, the indirect economic impact on small businesses 
that may result from reduced demand for goods and services from 
commercial entities is likely to be insignificant.
    The employment characteristics of Lee County are shown in Table 1 
for the year 1997. We included the following SIC (Standard Industrial 
Classification) categories, because they include businesses most likely 
to be directly affected by the designation of a manatee refuge:
    <bullet> Fishing, hunting, trapping (SIC 09)
    <bullet> Water transportation (SIC 44)
    <bullet> Miscellaneous retail (SIC 59)
    <bullet> Amusement and recreation services (SIC 79)
    <bullet> Non-classifiable establishments (NCE)

                                                               Table 1.--Employment Characteristics of Lee County in Florida--1997
                                                                        [Includes SIC Codes 09, 44, 59, 79, and NCE \a\]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                         Select SIC Codes (includes SIC Codes 09, 44, 59, 79, and NCE \a\
                                                                    Total mid-       Mid-March         Total     -------------------------------------------------------------------------------
                                                                       March      employment \b\  establishments                     Number of       Number of       Number of       Number of
                             County                               employment \b\    (select SIC        (all            Total      establishments  establishments  establishments  establishments
                                                                       (all           codes)        industries)   establishments        (1-4            (5-9           (10-19           (20+
                                                                    industries)                                                     employees)      employees)      employees)      employees)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Lee.............................................................        135,300           7,734          11,386             974             602             193              92             87
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Census County Business Patterns (http://www.census.gov/epcd/cbp/view/cbpview.html).
\a\ Descriptions of the SIC codes included in this table as follows:
SIC 09--Fishing, hunting, and trapping
SIC 44--Water transportation
SIC 59--Miscellaneous retail service division
SIC 79--Amusement and recreation services
NCE--non-classifiable establishments division
\b\ Table provides the high-end estimate whenever the Census provides a range of mid-March employment figures for select counties and SIC codes.

    As shown in Table 1, the majority (over 80 percent) of these 
business establishments in Lee County have fewer than ten employees, 
with the largest number of establishments employing fewer than four 
employees. Any economic impacts associated with this rule will affect 
some proportion of these small entities.
    Since the emergency designation is for a manatee refuge, which only 
requires a reduction in speed, we do not believe the designation would 
cause significant economic effect on a substantial number of small 
businesses. Currently available information does not allow us to 
quantify the number of small business entities, such as charter boats 
or commercial fishing entities, that may incur direct economic impacts 
due to the inconvenience of added travel times resulting from the rule, 
but it is safe to assume that the current 27 permit holders may 
constitute the affected parties for a 120-day rule. The Service does 
not believe the 27 permit holders constitute a substantial number. 
Prior to establishing the Pine Island-Estero Bay as a permanent manatee 
refuge, public comments on our proposed rule (69 FR 48102, August 6, 
2004) will be used for further refinement of the impact on small 
entities and the general public. In addition, the inconvenience of slow 
speed zones may cause some recreationists to change their behavior, 
which may cause some loss of income to some small businesses. The 
number of recreationists that will change their behavior, and how their 
behavior will change, is unknown; therefore, the impact on potentially 
affected small business entities cannot be quantified. However, because 
boaters will experience only minimal added travel time in most affected 
areas and the fact that speed zones have been in place for some time 
now, we believe that this designation will not cause a significant 
economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804 (2). This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. As shown above, this rule may cause some inconvenience in the 
form of added travel time for recreationists and commercial fishing and 
charter boat businesses because of speed restrictions in manatee refuge 
areas, but this should not translate into any significant business 
reductions for the many small businesses in the affected county. An 
unknown portion of the establishments shown in Table 1 could be 
affected by this rule. Because the only restrictions on recreational 
activity result from added travel time, and alternative sites are 
available for all waterborne activities, we believe that the economic 
impact on small entities resulting from changes in recreational use 
patterns will not be significant. The economic impacts on small 
business resulting from this rule are likely to be indirect effects 
related to a reduced demand for goods and services if recreationists 
choose to reduce their level of participation in waterborne activities. 
Similarly, because the only restrictions on commercial activity result 
from the inconvenience of added travel time, and boats can continue to 
travel up to 25 miles per hour in the navigational channels, we believe 
that any economic impact on most small commercial fishing or charter 
boat entities will not be significant. Also, the indirect economic 
impact on small businesses that may result from reduced demand for 
goods and services from commercial entities is likely to be 
insignificant.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. It is unlikely that there are 
unforeseen changes in costs or prices for consumers stemming from this 
rule. The recreational charter boat and commercial fishing industries 
may be affected by lower speed limits for some areas when traveling to 
and from fishing grounds. However, because of the availability of 25-
miles-per-hour navigational channels, this impact is likely to be 
limited. Further, only 27

[[Page 70389]]

active permit holders were exempt from the former State speed zones. 
The impact will most likely stem from only these permit holders.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. As 
stated above, this rule may generate some level of inconvenience to 
recreationists and commercial users due to added travel time, but the 
resulting economic impacts are believed to be minor and will not 
interfere with the normal operation of businesses in the affected 
counties. Added travel time to traverse some areas is not expected to 
be a major factor that will impact business activity.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. The 
designation of manatee refuges and sanctuaries, while imposing 
regulations for at least a limited period, will not impose obligations 
on State or local governments that have not previously existed.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year. As such, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required. The manatee protection areas are located over publicly-
owned submerged water bottoms.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This rule will not have substantial direct effects on the 
State, in the relationship between the Federal Government and the 
State, or on the distribution of power and responsibilities among the 
various levels of government. We coordinated with the State of Florida 
to the extent possible on the development of this rule.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not contain any collections of information 
that require approval by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). A 
Federal agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.

National Environmental Policy Act

    We have analyzed this rule in accordance with criteria of the 
National Environmental Policy Act. This rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment. An Environmental Assessment has been prepared and is 
available for review by written request to the Field Supervisor (see 
ADDRESSES section).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a Government-to-Government basis. We have evaluated possible 
effects on federally recognized Indian tribes and have determined that 
there are no effects.

Energy Supply, Distribution or Use

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Because this rule is 
not a significant regulatory action under Executive Order 12866 and it 
only requires vessels to continue their operation as they have in the 
past, it is not expected to significantly affect energy supplies, 
distribution, and use. Therefore, this action is a not a significant 
energy action and no Statement of Energy Effects is required.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Vero Beach Field Office (see ADDRESSES 
section).

Author

    The primary author of this document is Kalani Cairns (see ADDRESSES 
section).

Authority

    The authority to establish manatee protection areas is provided by 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.), and the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-
1407), as amended.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.108 by adding paragraph (c)(13) as follows:


Sec.  17.108  List of designated manatee protection areas.

* * * * *
    (c) * * *
    (13) The Pine Island-Estero Bay Manatee Refuge. (i) Watercraft are 
required to proceed at slow speed all year in all waters of Matlacha 
Pass, south of a line that bears 90[deg] and 270[deg] from Matlacha 
Pass Green Channel Marker ``77'' (approximate latitude 26[deg]40'00'' 
North, approximate longitude 82[deg]06'00'' West), and north of Pine 
Island Road (State Road No. 78), excluding:
    (A) The portion of the marked channel otherwise designated in 
paragraph (c)(13)(iii) of this section;
    (B) All waters of Buzzard Bay east and northeast of a line 
beginning at a point (approximate latitude 26[deg]40'00'' North, 
approximate longitude 82[deg]05'20'' West) on the southwest shoreline 
of an unnamed mangrove island east of Matlacha Pass Green Channel 
Marker ``77'' and bearing 219( to the northeasternmost point 
(approximate latitude 26[deg]39'58'' North, approximate longitude 
82[deg]05'23'' West) of another unnamed mangrove island, then running 
along the eastern shoreline of said island to its southeasternmost 
point (approximate latitude 26[deg]39'36'' North, approximate longitude 
81[deg]05'09'' West),

[[Page 70390]]

then bearing 115[deg] to the westernmost point (approximate latitude 
26[deg]39'34'' North, approximate longitude 82[deg]05'05'' West) of the 
unnamed mangrove island to the southeast, then running along the 
western shoreline of said island to its southwesternmost point 
(approximate latitude 26[deg]39'22'' North, approximate longitude 
82[deg]04'53'' West), then bearing 123[deg] to the northwesternmost 
point (approximate latitude 26[deg]39'21'' North, approximate longitude 
82[deg]04'52'' West) of an unnamed mangrove island, then running along 
the western shoreline of said island to its southeasternmost point 
(approximate latitude 26[deg]39'09'' North, approximate longitude 
82[deg]04'44'' West), then bearing 103[deg] to the northwesternmost 
point (approximate latitude 26[deg]39'08'' North, approximate longitude 
82[deg]04'41'' West) of a peninsula on the unnamed mangrove island to 
the southeast, then running along the southwestern shoreline of said 
island to its southeasternmost point (approximate latitude 
26[deg]38'51'' North, approximate longitude 82[deg]04'18'' West), then 
bearing 99[deg] to the southernmost point (approximate latitude 
26[deg]38'50'' North, approximate longitude 82[deg]04'03'' West) of the 
unnamed mangrove island to the east, then bearing 90[deg] to the line's 
terminus at a point (approximate latitude 26[deg]38'50'' North, 
approximate longitude 82[deg]03'55'' West) on the eastern shoreline of 
Matlacha Pass; and
    (C) All waters of Pine Island Creek and Matlacha Pass north of Pine 
Island Road (State Road No. 78) and west and southwest of a line 
beginning at a point (approximate latitude 26[deg]39'29'' North, 
approximate longitude 82[deg]06'29'' West) on the western shoreline of 
Matlacha Pass and bearing 160[deg] to the westernmost point 
(approximate latitude 26[deg]39'25'' North, approximate longitude 
82[deg]06'28'' West) of an unnamed island, then running along the 
western shoreline of said island to its southernmost point (approximate 
latitude 26[deg]39'18'' North, approximate longitude 82[deg]06'24'' 
West), then bearing 128[deg] to the northernmost point (approximate 
latitude 26[deg]39'12'' North, approximate longitude 82[deg]06'17'' 
West) of an unnamed mangrove island to the south, then running along 
the eastern shoreline of said island to its southeasternmost point 
(approximate latitude 26[deg]39'00'' North, approximate longitude 
82[deg]06'09'' West), then bearing 138[deg] to a point (approximate 
latitude 26[deg]38'45'' North, approximate longitude 82[deg]05'53'' 
West) on the northern shoreline of Bear Key, then running along the 
northern shoreline of Bear Key to its easternmost point (approximate 
latitude 26[deg]38'44'' North, approximate longitude 82[deg]05'46'' 
West), then bearing 85[deg] to the westernmost point (approximate 
latitude 26[deg]38'45'' North, approximate longitude 82[deg]05'32'' 
West) of Deer Key, then running along the northern shoreline of Deer 
Key to its easternmost point (approximate latitude 26[deg]38'46'' 
North, approximate longitude 82[deg]05'22'' West), then bearing 
103[deg] to the northwesternmost point (approximate latitude 
26[deg]38'45'' North, approximate longitude 82[deg]05'17'' West) of the 
unnamed mangrove island to the east, then running along the western 
shoreline of said island to its southernmost point (approximate 
latitude 26[deg]38'30'' North, approximate longitude 82[deg]05'04'' 
West), then bearing 106[deg] to the westernmost point (approximate 
latitude 26[deg]38'30'' North, approximate longitude 82[deg]04'57'' 
West) of the unnamed island to the southeast, then running along the 
northern and eastern shorelines of said island to a point (approximate 
latitude 26[deg]38'23'' North, approximate longitude 82[deg]04'51'' 
West) on its eastern shoreline, then bearing 113[deg] to the 
northernmost point of West Island (approximate latitude 26[deg]38'21'' 
North, approximate longitude 82[deg]04'37'' West), then running along 
the western shoreline of West Island to the point where the line 
intersects Pine Island Road (State Road No. 78).
    (ii) Watercraft are required to proceed at slow speed all year in 
all waters of Matlacha Pass, St. James Creek, and San Carlos Bay, south 
of Pine Island Road (State Road No. 78), north of a line 500 feet 
northwest of and parallel to the main marked channel of the 
Intracoastal Waterway, west of a line that bears 302[deg] from 
Intracoastal Waterway Green Channel Marker ``99'' (approximate latitude 
26[deg]31'00'' North, approximate longitude 82[deg]00'52'' West), and 
east of a line that bears 360[deg] from Intracoastal Waterway Red 
Channel Marker ``10'' (approximate latitude 26[deg]29'16'' North, 
approximate longitude 82[deg]03'35'' West), excluding:
    (A) The portions of the marked channels otherwise designated in 
paragraphs (c)(13 )(iv) and (v) of this section;
    (B) All waters of Matlacha Pass south of Pine Island Road (State 
Road No. 78) and west of the western shoreline of West Island and a 
line beginning at the southernmost point (approximate latitude 
26[deg]37'25'' North, approximate longitude 82[deg]04'17'' West) of 
West Island and bearing 149[deg] to the northernmost point (approximate 
latitude 26[deg]37'18'' North, approximate longitude 82[deg]04'12'' 
West) of the unnamed mangrove island to the south, then running along 
the eastern shoreline of said island to its southernmost point 
(approximate latitude 26[deg]36'55'' North, approximate longitude 
82[deg]04'02'' West), then bearing 163[deg] to the line's terminus at a 
point (approximate latitude 26[deg]36'44'' North, approximate longitude 
82[deg]03[deg]58'' West) on the eastern shoreline of Little Pine 
Island;
    (C) All waters of Matlacha Pass, Pontoon Bay, and associated 
embayments south of Pine Island Road (State Road No. 78) and east of a 
line beginning at a point (approximate latitude 26[deg]38'12'' North, 
approximate longitude 82[deg]03'46'' West) on the northwestern 
shoreline of the embayment on the east side of Matlacha Pass, 
immediately south of Pine Island Road and then running along the 
eastern shoreline of the unnamed island to the south to its 
southeasternmost point (approximate latitude 26[deg]37'30'' North, 
approximate longitude 82[deg]03'22'' West), then bearing 163[deg] to 
the northwesternmost point of the unnamed island to the south, then 
running along the western shoreline of said island to its southernmost 
point (approximate latitude 26[deg]37'15'' North, approximate longitude 
82[deg]03'15'' West), then bearing 186[deg] to the line's terminus at a 
point (approximate latitude 26[deg]37'10'' North, approximate longitude 
82[deg]03'16'' West) on the eastern shoreline of Matlacha Pass;
    (D) All waters of Pine Island Creek south of Pine Island Road 
(State Road No. 78); and all waters of Matlacha Pass, Rock Creek, and 
the Mud Hole, west of a line beginning at a point (approximate latitude 
26[deg]33'52'' North, approximate longitude 82[deg]04'53'' West) on the 
western shoreline of Matlacha Pass and bearing 22[deg] to a point 
(approximate latitude 26[deg]34'09'' North, approximate longitude 
82[deg]04'45'' West) on the southern shoreline of the unnamed island to 
the northeast, then running along the southern and eastern shorelines 
of said island to a point (approximate latitude 26[deg]34'15'' North, 
approximate longitude 82[deg]04'39'' West) on its northeastern 
shoreline, then bearing 24[deg] to a point (approximate latitude 
26[deg]34'21'' North, approximate longitude 82[deg]04'36'' West) on the 
southern shoreline of the large unnamed island to the north, then 
running along the southern and eastern shorelines of said island to a 
point (approximate latitude 26[deg]34'31'' North, approximate longitude 
82[deg]04'29'' West) on its eastern shoreline, then bearing 41[deg] to 
the southernmost point (approximate latitude 26[deg]34'39'' North, 
approximate longitude 82[deg]04'22'' West) of another unnamed island to 
the northeast, then running along the eastern shoreline of said island 
to its northwesternmost point (approximate latitude 26[deg]35'22''

[[Page 70391]]

North, approximate longitude 82[deg]04'07'' West), then bearing 2[deg] 
to the southernmost point (approximate latitude 26[deg]35'32'' North, 
approximate longitude 82[deg]04'07'' West) of the unnamed island to the 
north, then running along the eastern shoreline of said island to its 
northernmost point (approximate latitude 26[deg]35'51'' North, 
approximate longitude 82[deg]03'59'' West), then bearing 353[deg] to 
the line's terminus at a point (approximate latitude 26[deg]36'08'' 
North, approximate longitude 82[deg]04'01'' West) on the eastern 
shoreline of Little Pine Island; and
    (E) All waters of Punta Blanca Bay and Punta Blanca Creek, east of 
the eastern shoreline of Matlacha Pass and east and north of the 
eastern and northern shorelines of San Carlos Bay.
    (iii) Watercraft may not exceed 25 miles per hour, all year, in all 
waters within the main marked channel in Matlacha Pass south of Green 
Channel Marker ``77'' (approximate latitude 26[deg]40'00'' North, 
approximate longitude 82[deg]06'00'' West) and north of a line 
perpendicular to the channel at a point in the channel \1/4\ mile 
northwest of the Pine Island Road Bridge (State Road No. 78).
    (iv) Watercraft may not exceed 25 miles per hour, all year, in all 
waters within the main marked channel in Matlacha Pass south of a line 
perpendicular to the channel at a point in the channel \1/4\ mile 
southeast of the Pine Island Road Bridge (State Road No. 78), and north 
of a line 500 feet northwest of and parallel to the main marked channel 
of the Intracoastal Waterway (just north of Green Channel Marker 
``1'').
    (v) Watercraft may not exceed 25 miles per hour, all year, in all 
waters within the marked channel in Matlacha Pass that intersects the 
main Matlacha Pass channel near Green Channel Marker ``15'' 
(approximate latitude 26[deg]31'57'' North, approximate longitude 
82[deg]03'38'' West) and intersects the main marked channel of the 
Intracoastal Waterway near Green Channel Marker ``101'' (approximate 
latitude 26[deg]30'39'' North, approximate longitude 82[deg]01'00'' 
West).
    (vi) Watercraft are required to proceed at slow speed from April 1 
through November 15 in all canals and boat basins of St. James City and 
the waters known as Long Cut and Short Cut; and all waters of Pine 
Island Sound and San Carlos Bay south of a line beginning at the 
southernmost tip (approximate latitude 26[deg]31'28'' North, 
approximate longitude 82[deg]06'19'' West) of a mangrove peninsula on 
the western shore of Pine Island approximately 2,200 feet north of Galt 
Island and bearing 309[deg] to the southeasternmost point (approximate 
latitude 26[deg]31'32'' North, approximate longitude 82[deg]06'25'' 
West) of another mangrove peninsula, then running along the southern 
shoreline of said peninsula to its southwesternmost point (approximate 
latitude 26[deg]31'40'' North, approximate longitude 82[deg]06'38'' 
West), then bearing 248[deg] to a point (approximate latitude 
26[deg]31'40'' North, approximate longitude 82[deg]06'39'' West) on the 
eastern shoreline of an unnamed mangrove island, then running along the 
southern shoreline of said island to its southwesternmost point 
(approximate latitude 26[deg]31'39'' North, approximate longitude 
82[deg]06'44'' West), then bearing 206[deg] to the line's terminus at 
the northernmost point of the MacKeever Keys (approximate latitude 
26[deg]31'09'' North, approximate longitude 82[deg]07'09'' West), east 
of a line beginning at said northernmost point of the MacKeever Keys 
and running along and between the general contour of the western 
shorelines of said keys to a point (approximate latitude 26[deg]30'27'' 
North, approximate longitude 82[deg]07'08'' West) on the southernmost 
of the MacKeever Keys, then bearing 201[deg] to a point (approximate 
latitude 26[deg]30'01'' North, approximate longitude 82[deg]07'19'' 
West) approximately 150 feet due east of the southeasternmost point of 
Chino Island, then bearing approximately 162[deg] to Red Intracoastal 
Waterway Channel Marker ``22'' (approximate latitude 26[deg]28'57'' 
North, approximate longitude 82[deg]06'55'' West), then bearing 
approximately 117[deg] to the line's terminus at Red Intracoastal 
Waterway Channel Marker ``20'' (approximate latitude 26[deg]28'45'' 
North, approximate longitude 82[deg]06'38'' West), north of a line 
beginning at said Red Intracoastal Waterway Channel Marker ``20'' and 
bearing 86[deg] to a point (approximate latitude 26[deg]28'50'' North, 
approximate longitude 82[deg]05'48'' West) \1/4\ mile south of York 
Island, then running parallel to and \1/4\ mile south of the general 
contour of the southern shorelines of York Island and Pine Island to 
the line's terminus at a point on a line bearing 360[deg] from Red 
Intracoastal Waterway Channel Marker ``10'' (approximate latitude 
26[deg]29'16'' North, approximate longitude 82[deg]03'35'' West), and 
west and southwest of the general contour of the western and southern 
shorelines of Pine Island and a line that bears 360[deg] from said Red 
Intracoastal Waterway Channel Marker ``10,'' excluding the portion of 
the marked channel otherwise designated in paragraph (c)(13 )(vii) of 
this section.
    (vii) Watercraft may not exceed 25 miles per hour from April 1 
through November 15 in all waters of the marked channel that runs north 
of the power lines from the Cherry Estates area of St. James City into 
Pine Island Sound, east of the western boundary of the zone designated 
in paragraph (c)(13)(vi) of this section, and west of a line 
perpendicular to the power lines that begins at the easternmost point 
(approximate latitude 26[deg]30'25'' North, approximate longitude 
82[deg]06'15'' West) of the mangrove island on the north side of the 
power lines approximately 1,800 feet southwest of the Galt Island 
Causeway.
    (viii) Watercraft are required to proceed at slow speed all year in 
all waters of San Carlos Bay and Punta Rassa Cove east of a line that 
bears 352[deg] from the northernmost tip of the northern peninsula on 
Punta Rassa (approximate latitude 26[deg]29'44'' North, approximate 
longitude 82[deg]00'33'' West), and south of a line that bears 122[deg] 
from Intracoastal Waterway Green Channel Marker ``99'' (approximate 
latitude 26[deg]31'00'' North, approximate longitude 82[deg]00'52'' 
West), including all waters of Shell Creek and associated waterways.
    (ix) Watercraft are required to proceed at slow speed all year in 
all waters of San Carlos Bay and the Caloosahatchee River, including 
the residential canals of Cape Coral, northeast of a line that bears 
302[deg] and 122[deg] from Intracoastal Waterway Green Channel Marker 
``99'' (approximate latitude 26[deg]31'00'' North, approximate 
longitude 82[deg]00'52'' West), west of a line that bears 346[deg] from 
Intracoastal Waterway Green Channel Marker ``93'' (approximate latitude 
26[deg]31'37'' North, approximate longitude 81[deg]59'46'' West), and 
north and northwest of the general contour of the northwestern 
shoreline of Shell Point and a line that bears approximately 74[deg] 
from the northernmost tip (approximate latitude 26[deg]31'31'' North, 
approximate longitude 81[deg]59'57'' West) of Shell Point to said 
Intracoastal Waterway Green Channel Marker ``93,'' excluding the 
Intracoastal Waterway between markers ``93'' and ``99'' (which is 
already designated as a Federal manatee protection area, requiring 
watercraft to proceed at slow speed, and is not impacted by this 
rulemaking).
    (x) Watercraft are required to proceed at slow speed from April 1 
through November 15 and at not more than 25 miles per hour the 
remainder of the year in all waters of Hell Peckney Bay southeast of 
Hurricane Bay, northeast of the northern shorelines of Julies Island 
and the unnamed island immediately northwest of Julies Island and a 
line that bears 312[deg] from the northwesternmost point of Julies 
Island (approximate latitude 26[deg]26''37'' North, approximate 
longitude 81[deg]54'57'' West), northwest of

[[Page 70392]]

Estero Bay, and southwest of a line beginning at the southernmost point 
(approximate latitude 26[deg]27'23'' North, approximate longitude 
81[deg]55'11'' West) of an unnamed mangrove peninsula in northwest Hell 
Peckney Bay and bearing 191[deg] to the northernmost point (approximate 
latitude 26[deg]27'19'' North, approximate longitude 81[deg]55'11'' 
West) of an unnamed mangrove island, then running along the northern 
shoreline of said island to its southeasternmost point (approximate 
latitude 26[deg]27'11'' North, approximate longitude 81[deg]55'05'' 
West), then bearing 115[deg] to a point (approximate latitude 
26[deg]27'03'' North, approximate longitude 81[deg]54'47'' West) on the 
northwest shoreline of an unnamed mangrove island, then running along 
the northern shoreline of said island to its northeasternmost point 
(approximate latitude 26[deg]27'02'' North, approximate longitude 
81[deg]54'33'' West), and then bearing 37[deg] to the line's terminus 
at the westernmost point of an unnamed mangrove peninsula in eastern 
Hell Peckney Bay.
    (xi) Watercraft are required to proceed at slow speed from April 1 
through November 15 and at not more than 25 miles per hour the 
remainder of the year in all waters of Hendry Creek south of a line 
that bears 270[deg] from a point (approximate latitude 26[deg]28'40'' 
North, approximate longitude 81[deg]52'56'' West) on the eastern 
shoreline of Hendry Creek; and all waters of Estero Bay southeast and 
east of Hell Peckney Bay, a line that bears 340[deg] from a point 
(approximate latitude 26[deg]25'56'' North, approximate longitude 
81[deg]54'25'' West) on the northern tip of an unnamed mangrove 
peninsula on the northeastern shoreline of Estero Island, and the 
northern shoreline of Estero Island, south of Hendry Creek and a line 
that bears 135[deg] and 315[deg] from Red Channel Marker ``18'' 
(approximate latitude 26[deg]27'46'' North, approximate longitude 
81[deg]52'00'' West) in Mullock Creek, and north of a line that bears 
72[deg] from the northernmost point (approximate latitude 
26[deg]24'22'' North, approximate longitude 81[deg]52'34'' West) of 
Black Island, including the waters of Buccaneer Lagoon at the southern 
end of Estero Island, but excluding:
    (A) The portions of the marked channels otherwise designated in 
paragraph (c)(13)(xiii) of this section;
    (B) The Estero River; and
    (C) To waters of Big Carlos Pass east of a line beginning at a 
point (approximate latitude 26[deg]24'34'' North, approximate longitude 
81[deg]53'05'' West) on the eastern shoreline of Estero Island and 
bearing 36[deg] to a point (approximate latitude 26[deg]24'40'' North, 
approximate longitude 81[deg]53'00'' West) on the southern shoreline of 
Coon Key, south of a line beginning at a point (approximate latitude 
26[deg]24'36'' North, approximate longitude 81[deg]52'30'' West) on the 
eastern shoreline of Coon Key and bearing 106[deg] to a point 
(approximate latitude 26[deg]24'39'' North, approximate longitude 
81[deg]52'34'' West) on the southwestern shoreline of the unnamed 
mangrove island north of Black Island, and west of a line beginning at 
a point (approximate latitude 26[deg]24'36'' North, approximate 
longitude 81[deg]52'30'' West) on the southern shoreline of said 
unnamed mangrove island north of Black Island and bearing 192[deg] to 
the northernmost point (approximate latitude 26[deg]24'22'' North, 
approximate longitude 81[deg]52'34'' West) of Black Island.
    (xii) Watercraft are required to proceed at slow speed from April 1 
through November 15 and at not more than 25 miles per hour the 
remainder of the year in all waters of Estero Bay and Big Hickory Bay 
south of a line that bears 72[deg] from the northernmost point 
(approximate latitude 26[deg]24'22'' North, approximate longitude 
81[deg]52'34'' West) of Black Island, east of the centerline of State 
Road No. 865 (including the waters of the embayment on the eastern side 
of Black Island and the waters inshore of the mouth of Big Hickory Pass 
that are west of State Road No. 865), and north of a line that bears 
90[deg] from a point (approximate latitude 26[deg]20'51'' North, 
approximate longitude 81[deg]50'33'' West) on the eastern shoreline of 
Little Hickory Island, excluding Spring Creek and the portions of the 
marked channels otherwise designated under paragraph (c)(13)(xiii) of 
this section and the portion of Hickory Bay designated in paragraph 
(c)(13)(xiii) of this section.
    (xiii) Watercraft may not exceed 25 miles per hour all year in:
    (A) All waters of Big Hickory Bay north of a line that bears 
90[deg] from a point (approximate latitude 26[deg]20'51'' North, 
approximate longitude 81[deg]50'33'' West) on the eastern shoreline of 
Little Hickory Island, west of a line beginning at a point (approximate 
latitude 26[deg]20'48'' North, approximate longitude 81[deg]50'24'' 
West) on the southern shoreline of Big Hickory Bay and bearing 338[deg] 
to a point (approximate latitude 26[deg]21'39'' North, approximate 
longitude 81[deg]50'48'' West) on the water in the northwestern end of 
Big Hickory Bay near the eastern end of Broadway Channel, south of a 
line beginning at said point on the water in the northwestern end of 
Big Hickory Bay and bearing 242[deg] to the northernmost point 
(approximate latitude 26[deg]21'39'' North, approximate longitude 
81[deg]50'50'' West) of the unnamed mangrove island south of Broadway 
Channel, and east of the eastern shoreline of said mangrove island and 
a line beginning at the southernmost point of said island (approximate 
latitude 26[deg]21'07'' North, approximate longitude 81[deg]50'58'' 
West) and bearing 167[deg] to a point on Little Hickory Island 
(approximate latitude 26[deg]21'03'' North, approximate longitude 
81[deg]50'57'' West);
    (B) All waters of the main marked North-South channel in northern 
Estero Bay from Green Channel Marker ``37'' (approximate latitude 
26[deg]26'02'' North, approximate longitude 81[deg]54'29'' West) to 
Green Channel Marker ``57'' (approximate latitude 26[deg]25'08'' North, 
approximate longitude 81[deg]53'29'' West);
    (C) All waters of the main marked North-South channel in southern 
Estero Bay south of a line beginning at a point (approximate latitude 
26[deg]24'36'' North, approximate longitude 81[deg]52'30'' West) on the 
southern shoreline of the unnamed mangrove island north of Black Island 
and bearing 192[deg] to the northernmost point (approximate latitude 
26[deg]24'22'' North, approximate longitude 81[deg]52'34'' West) of 
Black Island, and north and east of Red Channel Marker ``62'' 
(approximate latitude 26[deg]21'31'' North, approximate longitude 
81[deg]51'20'' West) in Broadway Channel;
    (D) All waters within the portion of the marked channel leading to 
the Gulf of Mexico through New Pass, west of the North-South channel 
and east of State Road No. 865; all waters of the marked channel 
leading to Mullock Creek north of a line beginning at a point 
(approximate latitude 26[deg]24'36'' North, approximate longitude 
81[deg]52'30'' West) on the eastern shoreline of Coon Key and bearing 
106[deg] to a point (approximate latitude 26[deg]24'39'' North, 
approximate longitude 81[deg]52'34'' West) on the southwestern 
shoreline of the unnamed mangrove island north of Black Island, and 
south of Red Channel Marker ``18'' (approximate latitude 26[deg]27'46'' 
North, approximate longitude 81[deg]52'00'' West);
    (E) All waters of the marked channel leading from the Mullock Creek 
Channel to the Estero River, west of the mouth of the Estero River. 
(This designation only applies if a channel is marked in accordance 
with permits issued by all applicable State and Federal authorities. In 
the absence of a properly permitted channel, this area is as designated 
under paragraph (c)(13)(xi) of this section.);
    (F) All waters of the marked channel commonly known as Alternate 
Route Channel, with said channel generally running between Channel 
Marker ``1'' (approximate latitude 26[deg]24'29'' North,

[[Page 70393]]

approximate longitude 81[deg]51'53'' West) and Channel Marker ``10'' 
(approximate latitude 26[deg]24'00'' North, approximate longitude 
81[deg]51'09'' West);
    (G) All waters of the marked channel commonly known as Coconut 
Channel, with said channel generally running between Channel Marker 
``1'' (approximate latitude 26[deg]23'44'' North, approximate longitude 
81[deg]50'55'' West) and Channel Marker ``23'' (approximate latitude 
26[deg]24'00'' North, approximate longitude 81[deg]50'30'' West);
    (H) All waters of the marked channel commonly known as Southern 
Passage Channel, with said channel generally running between Channel 
Marker ``1'' (approximate latitude 26[deg]22'58'' North, approximate 
longitude 81[deg]51'57'' West) and Channel Marker ``22'' (approximate 
latitude 26[deg]23'27'' North, approximate longitude 81[deg]50'46'' 
West); and
    (I) All waters of the marked channel leading from the Southern 
Passage Channel to Spring Creek, west of the mouth of Spring Creek.
    (xiv) Maps of the Pine Island-Estero Bay Manatee Refuge follow:
BILLING CODE 4310-55-P

[[Page 70394]]

[GRAPHIC] [TIFF OMITTED] TR06DE04.015


[[Page 70395]]


[GRAPHIC] [TIFF OMITTED] TR06DE04.016


    Dated: November 26, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-26705 Filed 12-3-04; 8:45 am]
BILLING CODE 4310-SS-C