[Federal Register: April 28, 2005 (Volume 70, Number 81)]

[Rules and Regulations]               

[Page 21966-21971]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr28ap05-12]                         



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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'';

0

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