[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