[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Rules and Regulations]
[Pages 21966-21971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8526]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU10


Endangered and Threatened Wildlife and Plants; Amendment of Lower 
St. Johns River Manatee Refuge in Florida

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service is amending a portion of the 
Lower St. Johns River Manatee Refuge area in Duval County, Florida, to 
provide for both improved public safety and increased manatee 
protection through improved marking and enforcement of the manatee 
protection area. Specifically, that portion of this manatee protection 
area which lies downstream of the Hart Bridge to Reddie Point will be 
modified to allow watercraft to travel up to 25 miles per hour (mph) in 
a broader portion of the St. Johns River to include areas adjacent to 
but outside of the navigation channel. Watercraft traveling near the 
banks of the river will be required to travel at slow speed much as 
they do now. The primary exception will be around Exchange Island where 
the coverage of the existing State and local slow-speed zones will be 
expanded. However, in the main portion of the river, watercraft will be 
allowed to travel at speeds up to 25 mph. The manatee protection area 
will also be expanded approximately one mile further downstream, to the 
extent it was originally proposed (68 FR 16602; April 4, 2003), in 
order to be consistent with existing State and local governmental 
manatee protection measures and thereby facilitate compliance. This 
modification is supported by State and local government and parties to 
the March 18, 2003, Stipulated Order which resulted in the initial 
rulemaking for this manatee protection area.
    The current configuration of the manatee protection area is not 
supported by the State of Florida or Duval County. While the Service is 
committed to enforcing these current protection measures, State and 
local government would normally provide a substantial portion of the 
enforcement

[[Page 21967]]

effort. This rulemaking, through a minor modification in a small 
portion of the manatee protection area, resolves State and local 
objections and gains their support through education and enforcement 
throughout the extent of the manatee protection area. The modification 
will provide a substantial benefit to manatee conservation.
    Establishment of manatee protection areas 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 also announce the availability of a 
final environmental assessment for this action. Under authority of 5 
U.S.C. 553, we find good cause to make this rule final without prior 
opportunity for public comment because public notice and comment on the 
rule is contrary to the public interest. However, the public may 
provide comments on this final rule at any time to the address in the 
ADDRESSES caption below.

DATES: This rule is effective April 28, 2005.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Jacksonville Field 
Office, U.S. Fish and Wildlife Service, 6620 Southpoint Drive, South, 
Suite 310, Jacksonville, Florida 32216.

FOR FURTHER INFORMATION CONTACT: David Hankla or Chuck Underwood (see 
ADDRESSES section), telephone 904/232-2580; or visit our website at 
http://northflorida.fws.gov.

SUPPLEMENTARY INFORMATION: The West Indian manatee is federally listed 
as an endangered species under the ESA (16 U.S.C. 1531 et seq.) (32 FR 
4001), and the species is further protected as a depleted stock under 
the MMPA (16 U.S.C. 1361-1407). Florida manatees, a native subspecies 
of the West Indian manatee (Domning and Hayek, 1986), live 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 Florida waters throughout the year, and 
nearly all manatees use the waters of 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 industrial 
discharges and natural springs for warmth. In warmer months, they 
expand their range and occasionally are seen as far north as Rhode 
Island on the Atlantic Coast and as far west as Texas on the Gulf 
Coast.
    Human activities, and particularly waterborne activities, are 
resulting in the incidental 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 
(section 101(a)) and makes it unlawful for any person to take, possess, 
transport, purchase, sell, export, or offer to purchase, sell, or 
export, any marine mammal or marine mammal product unless authorized. 
Take, as defined by section 3(13) of the MMPA means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal. Harassment is defined under 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.
    Humans can cause take of manatees by both direct and indirect 
means. Direct takings include injuries and deaths from watercraft 
collisions, deaths from water control structure operations, lethal and 
sublethal entanglements with recreational and commercial fishing gear, 
and alterations of behavior due to harassment. Indirect takings can 
result from habitat alteration and destruction, such as the creation 
and/or subsequent cessation of artificial warm water refuges, decreases 
in the quantity and quality of warm water in natural spring areas, 
changes in water quality in various parts of the State, the 
introduction of marine debris, and other, more general disturbances. 
Indirect takings may also result from the construction of docks, boat 
ramps, and marinas if they lead to increased boat traffic in areas of 
regular manatee use and manatee protection measures are not in place.
    Collisions with watercraft are the largest cause of human-related 
manatee deaths. Data collected during manatee carcass salvage 
operations in Florida indicate that more than 1,200 manatees are 
confirmed victims of collisions with watercraft from 1980 through 2004. 
Collisions with watercraft comprise nearly 25 percent of all manatee 
mortalities in that timeframe. Approximately 75 percent of watercraft-
related manatee mortality has taken place in 11 Florida counties 
(Brevard, Lee, Collier, Duval, Volusia, Broward, Palm Beach, Charlotte, 
Hillsborough, Citrus, and Sarasota) (Florida Fish and Wildlife 
Commission's Florida Wildlife Research Institute Manatee Mortality 
Database, 2005).
    To minimize the number of injuries and deaths associated with 
watercraft activities, we and the State of Florida have designated 
manatee protection areas at sites throughout coastal Florida where 
conflicts between boats and manatees have been well documented and 
where manatees are known to frequently occur. 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 substantial evidence shows such establishment is necessary to 
prevent the taking of one or more manatees (that is, to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt 
to engage in any such conduct).
    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, 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.

[[Page 21968]]

    The Lower St. Johns River Manatee Refuge was established to prevent 
the taking of manatees resulting from collisions with watercraft. After 
public review and comment, the regulation establishing the refuge was 
published on August 6, 2003, in the Federal Register (68 FR 46869). The 
portion of this manatee protection area downstream of the Hart Bridge 
requires watercraft to travel at slow speed outside of the navigation 
channel of the St. Johns River and at not more than 25 mph in the 
navigation channel.
    This rulemaking revises the restrictions downstream of the Hart 
Bridge. Watercraft traveling within 300 feet of the left descending 
bank of the river will be required to travel at slow speed (see map in 
the rule portion of this document). Watercraft traveling within an area 
approximately 1,000 feet from the right descending bank of the river, 
including that portion of the river between Exchange Island and the 
right descending bank, and approximately 300 feet channel-ward of 
Exchange Island, will also be required to travel at slow speed. 
However, in the remaining portion of the river, watercraft will be 
allowed to travel at speeds up to 25 mph.
    This modification to the current configuration will eliminate some 
restrictions and provide a greater margin of safety between 
recreational boaters proceeding at speeds up to 25 mph and large 
private and commercial vessels. Under the current regulation, any boats 
traveling at greater than slow speed must travel in the channel. This 
means that operators of small recreational craft must choose either to 
share a relatively narrow channel with very large vessels, or travel 
perhaps several miles at slow speed. The State and county government 
officials believe that many will opt to share the channel with the 
larger vessels, unnecessarily placing them in a more dangerous 
environment. The Service is required under a March 18, 2003, Stipulated 
Order (Save the Manatee Club v. Ballard) approved by the Court to post 
this area as expeditiously as possible and will complete posting in the 
near future. This rule will allow the area to be posted in a revised 
configuration and prevent this safety issue from occurring.
    The manatee protection area will also be expanded approximately one 
mile further downstream, to the extent it was originally proposed at 
Reddie Point (68 FR 16601; April 4, 2003). Thus, this rule adopts the 
current State and local speed zone buffer configuration along the 
shoreline of the river which will facilitate improved signage and 
enforcement. There were no comments regarding the Reddie Point boundary 
in the initial rulemaking. We revised the initial proposed boundary 
here (slow speed, 25 mph in the channel) because of limitations on our 
ability to mark the channel boundary.
    This action will also allow for some signs on wooden posts marking 
the boundaries of the manatee protection area to be replaced with 
buoys. This will reduce the danger associated with a collision with 
these markers.
    Finally, this modification also resolves objections of State and 
local enforcement agencies, who have agreed to assist in enforcing this 
area as modified. Increased enforcement will improve the effectiveness 
of the protection measures not only for the benefit of manatees, but 
for human safety as well.
    Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 
500 et seq.) allows Federal agencies to proceed immediately to a final 
rule ``when the agency for good cause finds * * * that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' Due to the primary obligation of State and local 
officials to ensure boater safety and to avoid and minimize 
navigational problems in a heavily-used waterway that is shared by 
recreational and non-recreational vessels, we must give weight to 
statements from public safety and law enforcement officials when they 
anticipate navigational problems that present public safety concerns. 
The public safety component, along with the need for prompt 
implementation of State and local enforcement efforts to reduce or 
eliminate manatee injuries and mortalities from boat strikes, 
constitutes our basis for proceeding immediately with the final 
rulemaking process directly. For these reasons, we find good cause to 
make this rule final without prior opportunity for public comment.
    The APA also provides that agencies must wait a minimum of 30 days 
before making a rule effective. However, as described above, this rule 
will modify the manatee protection area to prevent a public safety 
issue from occuring. The modification affects only a fraction of the 
overall manatee protection area and will be posted at the same time as 
the remainder of the area in order to meet the terms of the Stipulated 
Order. Because delay in implementing the revisions can only result in 
increased risks to both humans and manatees, it is appropriate to make 
the rule effective immediately. Therefore, pursuant to section 
553(d)(3) of the APA, the Service is making this rule effective 
immediately. However, the Service will accept comments on this rule at 
any time.

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.
    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. A quantitative assessment of 
the costs and benefits is not required, nor is consideration of 
alternatives. No significant economic impacts would result from this 
modification of the existing manatee refuge impacting approximately 5.5 
river miles in one county in the State of Florida.
    The purpose of this rule is to modify an existing manatee 
protection area in the St. Johns River, Duval County, Florida, to 
provide for a greater margin of safety for recreational boaters and 
improve manatee protection through better enforcement and compliance. 
The economic impacts of this rule are due to the previously described 
changes in speed zone restrictions in the manatee refuge. We will 
experience increased administrative costs of approximately $365,000 due 
to modified posting requirements. Conversely, the rule may also produce 
some minimal though undeterminable economic benefits associated with 
recreational boating and commercial crabbing, as a result of faster 
travel times through a larger area.
    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 we 
continue to support and encourage State and local measures to improve 
manatee protection.
    This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Minimal restrictions to existing human uses of the sites will result 
from this rule. No entitlements, grants, user fees, loan programs or 
the rights and obligations of their recipients are expected to occur.
    This rule will not raise novel legal or policy issues. We have 
previously established manatee protection areas.

Regulatory Flexibility Act

    For the reasons set forth in our rule of August 6, 2003 (68 FR 
46896), we certify that this rule will not have a

[[Page 21969]]

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.

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. The primary effect of the rule is to ease restrictions on boat 
speeds in a portion of the river to improve safety. There will be no 
adverse effects on any businesses.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. There will be no changes in costs or 
prices for consumers stemming from this rule.
    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. There 
will be no adverse effects to any segment of the community.

Energy Supply, Distribution or Use (Executive Order 13211)

    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 has 
a limited effect on boat speeds, it is not expected to significantly 
affect energy supplies, distribution, and use. Therefore, this action 
is not a significant energy action and no Statement of Energy Effects 
is required.

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 imposes no new obligations on State or local governments.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., 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 area is located over State-or 
privately-owned submerged bottoms. Navigational access to private 
property is not affected.

Federalism

    In accordance with Executive Order 13132, the 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. The State of Florida and local government 
support the development of this rule.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the 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 collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. The regulation would not impose new recordkeeping 
or reporting requirements on State or local governments, individuals, 
businesses, or organizations. We may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    We have analyzed this rule in accordance with the 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 upon request by writing 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), E.O. 13175, and 512 DM 2, we have 
evaluated possible effects on federally recognized Indian tribes and 
have determined that there are no effects.

References Cited

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

Author

    The primary author of this document is David Hankla (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 as follows:
0
a. By removing the map at paragraph (c)(11(v) titled ``St. Johns River 
Bridges Area'';
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b. By redesignating paragraph (c)(11)(v) as paragraph (c)(11)(vi);
0
c. By revising paragraphs (c)(11)(i) through (iv) and adding a new 
paragraph (c)(11)(v) to read as set forth below; and
0
d. By adding a new map, as set forth below, between the two existing 
maps in the newly designated paragraph (c)(11)(vi).


Sec.  17.108  List of designated manatee protection areas.

* * * * *
    (c) * * *
    (11) The Lower St. Johns River Manatee Refuge.
    (i) The Lower St. Johns River Manatee Refuge is described as 
portions of the St. Johns River and adjacent waters in Duval, Clay, and 
St. Johns Counties from Sandfly Point (the intersection of the right 
descending bank of the Trout River and the left descending bank of the 
St. Johns River) and Reddie Point, as

[[Page 21970]]

marked, upstream to the mouth of Peter's Branch, including Doctors 
Lake, in Clay County on the western shore, and to the southern shore of 
the mouth of Julington Creek in St. Johns County on the eastern shore. 
A map showing the refuge and two maps showing specific areas of the 
refuge are at paragraph (11)(vi) of this section.
    (ii) In the St. Johns River from Sandfly Point on the left 
descending bank of the St. Johns River and Reddie Point on the right 
descending bank of the St. Johns River, upstream to the Hart Bridge, a 
distance of approximately 5.5 miles (8.8 km), watercraft are required 
to proceed at slow speed, year-round, within 300 feet (91 m) of the 
shoreline on the left descending bank of the St. Johns River and within 
a buffer as marked, typically about 1,000 feet (305 m) from the 
shoreline along the right descending bank of the river. The slow speed 
designation also includes that portion of the river between Exchange 
Island and the right descending bank, a marked buffer approximately 300 
feet (91 m) along the west (channel-ward) shoreline of Exchange Island, 
and a portion of the Arlington River as marked. Watercraft are also 
required to proceed at not more than 25 miles per hour (40 km/h), year 
round, in the area posted as such between these slow speed shoreline 
buffers. See map of ``St. Johns River Bridges Area'' in paragraph 
(11)(vi) of this section.
    (iii) From the Hart Bridge to the Main Street Bridge, a distance of 
approximately 2 miles (3.2 km), watercraft are required to proceed at 
slow speed, year-round, outside the marked navigation channel and at 
speeds of not more than 25 miles per hour (40 km/h) in the marked 
channel (from Channel Marker ``81'' to the Main Street Bridge, the 
channel is defined as the line of sight extending west from Channel 
Markers ``81'' and ``82'' to the fenders of the Main Street Bridge). 
See map of ``St. Johns River Bridges Area'' in paragraph (11)(vi) of 
this section.
    (iv) From the Main Street Bridge to the Fuller Warren Bridge, a 
distance of approximately 1 mile (1.6 km), shoreline to shoreline, 
watercraft are required to proceed at slow speed (channel included), 
year-round. See map of ``St. Johns River Bridges Area'' in paragraph 
(11)(vi) of this section.
    (v) Upstream of the Fuller Warren Bridge: for a distance of 
approximately 19.3 miles (31.1 km) along the left descending bank of 
the St. Johns River, watercraft are required to proceed at slow speed, 
year-round, in a 700-foot (213 m) to 1,000-foot (305 m) as-marked, 
shoreline buffer from the Fuller Warren Bridge to the south bank of the 
mouth of Peter's Branch in Clay County; for a distance of approximately 
20.2 miles (32.5 km) along the right descending bank of the St. Johns 
River, watercraft are required to proceed at slow speed, year round, in 
a 700-foot (213 m) to 1,000-foot (305 m) as marked, shoreline buffer 
from the Fuller Warren Bridge to the south bank of the mouth of 
Julington Creek in St. Johns County (defined as a line north of a 
western extension of the Nature's Hammock Road North); and in Doctors 
Lake in Clay County watercraft are required to proceed at slow speed, 
year-round, in a 700-foot (213 m) to 900-foot (274 m) as-marked, 
shoreline buffer (approximately 12.9 miles (20.8 km)). See map of 
``Lower St. Johns River'' in paragraph (11)(vi) of this section.
    (vi) * * *

[[Page 21971]]

[GRAPHIC] [TIFF OMITTED] TR28AP05.000

* * * * *

    Dated: April 22, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-8526 Filed 4-27-05; 8:45 am]
BILLING CODE 4310-55-P