Endangered and Threatened Wildlife and Plants; Establishment of an Additional Manatee Protection Area in Lee County, FL, 17864-17879 [05-6919]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 66 (Thursday, April 7, 2005)]
[Rules and Regulations]
[Pages 17864-17879]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6919]



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Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Establishment of an 
Additional Manatee Protection Area in Lee County, Florida; Final Rule

Federal Register / Vol. 70, No. 66 / Thursday, April 7, 2005 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT65


Endangered and Threatened Wildlife and Plants; Establishment of 
an Additional Manatee Protection Area in Lee County, FL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), establish an 
additional manatee protection area in Lee County, Florida (Pine Island-
Estero Bay Manatee Refuge). This action is authorized under the 
Endangered Species Act of 1973, as amended (ESA) and the Marine Mammal 
Protection Act of 1972, as amended (MMPA), to further recovery of the 
Florida manatee (Trichechus manatus latirostris) by preventing the 
taking of one or more manatees. We are designating an area in Lee 
County as a manatee refuge in which certain waterborne activities will 
be regulated. Specifically, watercraft will be required to proceed at 
either ``slow speed'' or at not more than 25 miles per hour, on an 
annual or seasonal basis, as described in the rule. We also announce 
the availability of a final environmental assessment for this action.

DATES: Effective date: April 4, 2005

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours from 8 a.m. to 4:30 p.m. 
at the South Florida Field Office, U.S. Fish and Wildlife Service, 1339 
20th Street, Vero Beach, Florida 32960.

FOR FURTHER INFORMATION CONTACT: Jay Slack or Kalani Cairns (see 
ADDRESSES section), telephone 772/562-3909; or visit our Web site at 
https://verobeach.fws.gov.

SUPPLEMENTARY INFORMATION:

Background

    The West Indian manatee (Trichecus manatus) is federally listed as 
an endangered species under the ESA (16 U.S.C. 1531 et seq.) (32 FR 
4001) and the population is further protected as a depleted stock under 
the MMPA (16 U.S.C. 1361-1407). Manatees reside in freshwater, 
brackish, and marine habitats in coastal and inland waterways of the 
southeastern United States. The majority of the population can be found 
in waters of the State of Florida throughout the year, and nearly all 
manatees live around peninsular Florida during the winter months. The 
manatee is a cold-intolerant species and requires warm water 
temperatures generally above 20[deg] Celsius (68[deg] Fahrenheit) to 
survive during periods of cold weather. During the winter months, most 
manatees rely on warm water from natural springs and industrial 
discharges for warmth. In warmer months, they expand their range and 
are seen rarely as far north as Rhode Island on the Atlantic Coast and 
as far west as Texas on the Gulf Coast.
    Recent information indicates that the overall manatee population 
has grown since the species was listed (Service 2001). However, in 
order for us to determine that an endangered species has recovered to a 
point that it warrants removal from the List of Endangered and 
Threatened Wildlife and Plants, the species must have improved in 
status to the point at which listing is no longer appropriate under the 
criteria set out in section 4(a)(1) of the ESA.
    Human activities, particularly waterborne activities, can result in 
the take of manatees. Take, as defined by the ESA, means to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to 
attempt to engage in any such conduct. Harm means an act which kills or 
injures wildlife (50 CFR 17.3). Such an act may include significant 
habitat modification or degradation that kills or injures wildlife by 
significantly impairing essential behavioral patterns, including 
breeding, feeding, or sheltering. Harass includes intentional or 
negligent acts or omissions that create the likelihood of injury to 
wildlife by annoying it to such an extent as to significantly disrupt 
normal behavioral patterns, which include, but are not limited to, 
breeding, feeding, or sheltering (50 CFR 17.3).
    The MMPA establishes a moratorium, with certain exceptions, on the 
taking and importation of marine mammals and marine mammal products and 
makes it unlawful for any person to take, possess, transport, purchase, 
sell, export, or offer to purchase, sell, or export, any marine mammal 
or marine mammal product unless authorized. Take, as defined by section 
3(13) of the MMPA, means to harass, hunt, capture, or kill, or attempt 
to harass, hunt, capture, or kill any marine mammal. Harassment is 
defined by section 3(18) of the MMPA as any act of pursuit, torment, or 
annoyance which--(i) has the potential to injure a marine mammal or 
marine mammal stock in the wild; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing disruption 
of behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering.
    Human use of the waters of the southeastern United States has 
increased as a function of residential growth and increased visitation. 
This increase is particularly evident in the State of Florida. The 
population of Florida has grown by 135 percent from 1970 to 2000 (6.8 
million to 15.9 million, U.S. Census Bureau) and is expected to exceed 
18 million by 2010 and 20 million by the year 2020. According to a 
report by the Florida Office of Economic and Demographic Research 
(2005), it is expected that, by the year 2010, 14.7 million people will 
reside in the 35 coastal counties of Florida. In a parallel fashion to 
residential growth, visitation to Florida has also increased. It is 
expected that Florida will have 83 million visitors annually by the 
year 2020, up from 48.7 million visitors in 1998. In concert with this 
increase of human population growth and visitation is the increase in 
the number of watercraft that travel Florida waters. In 2003, 743,243 
vessels were registered in the State of Florida. This represents an 
increase of more than 26 percent since 1993. The apparent decline in 
the number of vessels that were registered between 2001 and 2003 is due 
to a change in the way registrations are counted. The earlier (2001) 
numbers included all registrations occurring during the year and 
therefore double-counted vessels that were sold and re-registered 
during the same year.
    The increase in and projected growth of human use of manatee 
habitat has had direct and indirect impacts on this endangered species. 
Direct impacts include injuries and deaths from watercraft collisions, 
deaths and injuries from water control structure operations, lethal and 
sublethal entanglements with commercial and recreational fishing gear, 
and alterations of behavior due to harassment. Indirect impacts include 
habitat destruction and alteration, including decreases in water 
quality throughout some aquatic habitats, decreases in the quantity of 
warm water in natural spring areas, the spread of marine debris, and 
general disturbance from human activities.
    Federal authority to establish protection areas for the Florida 
manatee is provided by the ESA and the MMPA and is codified in 50 CFR, 
part 17, subpart J. In accordance with 50 CFR 17.106, manatee 
protection areas may be established on an emergency basis when such 
takings are imminent. Such was the case for the emergency designation 
of these areas within Lee County as a manatee refuge. The first of 
three

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emergency rules for the establishment of the Pine Island-Estero Bay 
Manatee Refuge was published in the Federal Register on April 7, 2004 
(69 FR 18279). The emergency designation was temporary, lasting only 
120 days, and expired on August 5, 2004. On August 6, 2004, we 
published a proposed rule in the Federal Register (69 FR 48102) to 
establish the Pine Island-Estero Bay Manatee Refuge by standard 
rulemaking procedures. In order to provide for continued protection of 
this area during the rulemaking process and to allow adequate time for 
a public hearing and comments on the proposed designation, we used our 
emergency authority to re-establish the temporary Pine Island-Estero 
Bay Manatee Refuge, effective on August 6, 2004 (69 FR 48115). This 
second emergency designation lasted another 120 days and expired on 
December 6, 2004. Due to delays in scheduling the public hearing caused 
by the hurricanes affecting peninsular Florida (e.g., Charley, Frances, 
and Jeanne) and to provide for continued protection of this area during 
the rulemaking process while allowing adequate time for public hearings 
and comments on the proposed designation, we used our emergency 
authority, a third time, to re-establish the temporary Pine Island-
Estero Bay Manatee Refuge, effective on December 6, 2004 (69 FR 70382). 
This designation lasted 120 days and expired on April 5, 2005.
    Pursuant to 50 CFR 17.103, we may establish two types of manatee 
protection areas: manatee refuges and manatee sanctuaries. A manatee 
refuge is an area in which we have determined that certain waterborne 
activities would result in the taking of one or more manatees, or that 
certain waterborne activities must be restricted to prevent the taking 
of one or more manatees, including but not limited to, a taking by 
harassment. A manatee sanctuary is an area in which we have determined 
that any waterborne activity would result in the taking of one or more 
manatees, including but not limited to, a taking by harassment. A 
waterborne activity is defined as including, but not limited to, 
swimming, diving (including skin and scuba diving), snorkeling, water 
skiing, surfing, fishing, the use of water vehicles, and dredge and 
fill activities (50 CFR 17.102).

Reasons for Designating a Manatee Refuge

    In deciding to implement this rule, we assessed the effects of a 
recent County Court ruling overturning State-designated manatee speed 
zones in Lee County (State of Florida Fish and Wildlife Conservation 
Commission vs. William D. Wilkinson, Robert W. Watson, David K. Taylor, 
James L. Frock [2 cases], Jason L. Fluharty, Kenneth L. Kretsh, Harold 
Stevens, Richard L. Eyler, and John D. Mills, County Court of the 20th 
Judicial Circuit) as well as the best available information to evaluate 
manatee and human interactions in the former State speed zones affected 
by the ruling.
    In the State of Florida Fish and Wildlife Conservation Commission 
(FWC) v. Wilkinson et al., boaters, who were issued citations which 
alleged different violations of Rule 68C-22.005 (Rule), challenged the 
Rule adopted by the FWC regulating the operation and speed of motorboat 
traffic in Lee County waters to protect manatees. In its ruling, the 
court determined that, under Florida law, the FWC can regulate the 
operation and speed of motorboats in order to protect manatees from 
harmful collisions with motorboats, however: (1) In the area to be 
regulated, manatee sightings must be frequent and, based upon available 
scientific information, manatees inhabit these areas on a regular, 
periodic, or continuous basis; and, (2) when the FWC adopts rules, it 
must consider the rights of boaters, fishermen and water-skiers and the 
restrictions adopted by the FWC must not unduly interfere with those 
rights. In this instance, the court found that the Rule for four of the 
regulated areas did not meet the State standard for the frequency of 
sightings and the rule unduly interfered with the rights of boaters. 
Thus, the designated manatee protection zones were invalidated, and the 
citations were dismissed. The absence of zones and enforcement in these 
areas increases the potential for manatees to suffer injury and death 
from watercraft collisions. The court's ruling does not affect Federal 
speed zones in Lee County. The Service established Shell Island as a 
manatee refuge in November 2002 (67 FR 68450) and the Caloosahatchee 
River-San Carlos Bay as a manatee refuge in August 2003 (68 FR 46870).
    The legal basis for the action to be taken by the Service differs 
markedly from that in the FWC v. Wilkinson et al. case. The Service's 
action is not based on State law, but rather is based upon a Federal 
regulation, 50 CFR 17.103, which provides the standard for designation 
of a manatee protection area.
    Manatees are especially vulnerable to fast-moving power boats. The 
slower a boat is traveling, the more time a manatee has to avoid the 
vessel and the more time the boat operator has to detect and avoid the 
manatee. Nowacek et al. (2000) documented manatee avoidance of 
approaching boats. Wells et al. (1999) confirmed that, at a response 
distance of 20 meters, a manatee's time to respond to an oncoming 
vessel increased by at least 5 seconds if the vessel was required to 
travel at slow speed. Therefore, the potential for take of manatees can 
be greatly reduced if boats are required to travel at slow speed in 
areas where manatees can be expected to occur.
    The waterbodies encompassed in this proposed designation receive 
extensive manatee use either on a seasonal or year-round basis as 
documented in radio telemetry and aerial survey data (FWC 2003). The 
areas contain feeding habitats and serve as travel corridors for 
manatees (FWC 2003). Although residents are likely accustomed to the 
presence of speed zones in the area, which existed as State regulations 
since 1999, some of these regulations are no longer in effect. 
Therefore, without this Federal designation, watercraft can be expected 
to travel at high speeds in areas frequented by manatees, which would 
result in the take of one or more manatees. Also, while the County 
Court invalidated State-designated speed limits in the areas adjacent 
to navigation channels, it did not invalidate the 25-miles per hour 
speed limit in the navigation channels that traverse the affected area. 
Therefore, the speed limit in the navigation channel is now lower than 
that of the surrounding, shallower areas. As a result, shallow-draft 
high-speed boats capable of traveling outside the navigation channels 
can be expected to operate at high speeds (greater than 25 miles per 
hour) in the areas more likely to be frequented by manatees. In the 
areas encompassed by this designation that receive more seasonal use by 
manatees, the slow speed requirements would begin on April 1.
    There is a history of watercraft-related manatee mortality in the 
area. At least 18 manatees killed in collisions with watercraft have 
been recovered in or immediately adjacent to the designated areas since 
1999 (https://www.floridamarine.org), with four carcasses recovered in 
2004 from the sites that were former State speed zones eliminated by 
the court's ruling. Necropsies revealed that these animals died of 
wounds from boat collisions.
    Manatees make extensive use of these areas, there is a history of 
take at these sites, future take will occur without protection 
measures, protection measures will be insufficient upon expiration of 
the current emergency designation, and we do not anticipate any 
alternative protection measures being enacted by State or local 
government in sufficient time to reduce

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the likelihood of take occurring. For these reasons, we believe that 
establishment of a manatee refuge is necessary to prevent the take of 
one or more manatees in these areas.

Definitions

    The following terms are defined in 50 CFR 17.102. We present them 
here to aid in understanding this rule.
    ``Planing'' means riding on or near the water's surface as a result 
of the hydrodynamic forces on a watercraft's hull, sponsons 
(projections from the side of a ship), foils, or other surfaces. A 
water vehicle is considered on plane when it is being operated at or 
above the speed necessary to keep the vessel planing.
    ``Slow speed'' means the speed at which a water vehicle proceeds 
when it is fully off plane and completely settled in the water. Due to 
the different speeds at which watercraft of different sizes and 
configurations may travel while in compliance with this definition, no 
specific speed is assigned to slow speed. A watercraft is not 
proceeding at slow speed if it is: on a plane, in the process of coming 
up on or coming off of plane, or creating an excessive wake. A water 
vehicle is proceeding at slow speed if it is fully off plane and 
completely settled in the water, not creating an excessive wake.
    ``Wake'' means all changes in the vertical height of the water's 
surface caused by the passage of a watercraft, including a vessel's bow 
wave, stern wave, and propeller wash, or a combination thereof.

Summary of Comments and Recommendations

    In the August 6, 2004, proposed rule (69 FR 48102), we requested 
all interested parties to submit factual reports or information that 
might contribute to the development of a final rule. We published legal 
notices announcing the proposal, inviting public comment, and 
announcing the schedule for the public hearing in the Fort Myers News-
Press and Cape Coral Daily Breeze. We held the public hearing at the 
Harborside Event Center in Fort Myers, Florida, on January 12, 2005, 
between 6:30 and 9:30 p.m. Approximately 250 people attended the public 
hearing. We received oral comments from 30 individuals. The comment 
period closed on February 2, 2005. Their comments and our responses are 
summarized below.
    During the comment period, we received approximately 4,100 written 
and oral comments concerning the proposal. The majority of written 
comments were form letters expressing support for the proposed 
designation. Most of the substantive comments recommended additional 
protection measures to the proposed action. Conversely, many of the 
oral comments expressed opposition to the proposed manatee refuge. The 
following is a summary of all comments received and our responses. 
Comments of a similar nature have been grouped together.
    Comment 1: Several commentors recommended that the seasonal zones 
be replaced with year-round zones in the final rule.
    Response 1: The waterbodies encompassed in this designation receive 
extensive manatee use either on a seasonal or year-round basis as 
documented in radio telemetry and aerial survey data (FWC 2003). These 
areas contain feeding habitat or serve as travel corridors for 
manatees. During the colder months (late November through March), 
manatees were found less frequently in Estero Bay and the York Island 
area; whereas, they use these same waterbodies to forage during the 
remainder of the year. Based on these data, seasonal speed zones were 
established for these areas in 1999 (slow speed during the warmer 
months, 25 miles per hour or unregulated during the colder months). We 
considered this information in establishing the Pine Island-Estero Bay 
Manatee Refuge. As such, we believe these seasonal zones are an 
appropriate protective measure and, provided the regulations are 
appropriately enforced, future take in these zones is unlikely.
    Comment 2: Several commentors recommended that we establish year-
round slow speed zones for the east-west and north-south channels that 
run through San Carlos Bay, waterways that are outside the boundaries 
of the proposed Pine Island-Estero Bay Manatee Refuge.
    Response 2: Designation of manatee protection areas involves both 
scientific and practical considerations. The boundaries for the east-
west channel, known as Miserable Mile, and the north-south channel were 
excluded during the configuration of the final rule for the 
Caloosahatchee River-San Carlos Bay Manatee Refuge to avoid creating a 
boating safety issue in the bay while protecting the shallow water 
seagrass beds where the manatees occur. This final rule reflects the 
results of indepth analysis of the areas, including careful evaluation 
of manatee and watercraft use information, site visits, coordination 
with State and local regulatory experts, and review of public comments. 
We believe that the current designation boundary is sufficient to 
prevent the take of one or more manatees.
    Comment 3: Several commentors recommended that we establish the 
Pine Island-Estero Bay Manatee Refuge even if the FWC re-establishes 
the previous State speed zones.
    Response 3: Manatee protection area designations serve different 
purposes in different areas. The purpose of this manatee refuge, which 
is to establish slow speed zones where none currently exist, is to 
minimize the risk of high-speed collisions between watercraft and 
manatees in areas where collisions are likely to occur. It should be 
noted that if the State and Lee County are able to enact protective 
measures comparable to FWC's assessment of the recommendations cited 
within the Local Rule Review Committee's Report, we would consider 
withdrawing our Federal designation. We are committed to continuing the 
protection of the manatee through a cooperative effort with our 
management partners at the State and county level, as well as efforts 
involving private entities and members of the public. We encourage 
State and local measures to improve and maintain manatee protection.
    Comment 4: One commentor recommended reducing the current 25-miles 
per hour speed limit in the marked channels to a speed slower than 25 
miles per hour.
    Response 4: We believe that the 25-miles per hour speed zone is 
sufficient to prevent the taking of one or more manatees, based on the 
establishment of speed zones in other areas. Twenty-five miles per hour 
in the channel seems to be a reasonably effective management 
alternative in areas where manatee use is well documented and there is 
a well defined, marked channel. We have also made our 25-miles per hour 
designations consistent with the former State speed zone regulations in 
order to minimize the boating public's confusion and to facilitate 
signage, enforcement, and compliance, while ensuring appropriate 
protection for manatees.
    Comment 5: Some commentors stated that the economic effects of the 
proposed manatee refuge would be the same as the previously designated 
State manatee protection zones since the proposed speed zones are 
identical to the former State speed zones.
    Response 5: We believe that economic effects would be the same.
    Comment 6: Several commentors suggested that we accept the 
recommendations in the Local Rule Review Committee's Report and allow 
the State and local authorities to provide for manatee protection.
    Response 6: We are the Federal agency responsible for manatee 
management and protection activities

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under both the ESA and the MMPA. As such, we must take an active role 
in regulatory activities involving the manatee. This in no way 
diminishes the important role that the State and Lee County play or the 
role of the private sector. Recognition is given to both State and 
local efforts to establish manatee protection, and we are committed to 
supporting these efforts. We have stated that the State should have 
leadership in establishing additional manatee protection areas. With 
this final rule, we have focused on the sites where there is evidence 
at this time showing that these measures are necessary to prevent take 
of one or more manatees, and where we determined that Federal action 
can effectively address the needs in the particular area. If the State 
is successful in implementing their pending rules for Lee County, we 
will consider withdrawing the Federal designation of these sites.
    Comment 7: A few commentors suggested establishing a 25-miles per 
hour speed limit zone around the Shell Island Manatee Refuge.
    Response 7: We carefully considered this comment in light of the 
increased travel time that would result from our proposed designation. 
However, this area represents the confluence between the Caloosahatchee 
River and San Carlos Bay. Manatees use this area as a travel corridor 
that connects important habitat features in San Carlos Bay and Matlacha 
Pass. This area also has a high density of boat traffic and high 
diversity of boating activities. In light of the available information, 
we have concluded that a year-round slow speed designation should be 
applied to this waterway in order to effectively improve manatee 
protection in this area.
    Comment 8: One commentor stated that the Service does not have the 
resources to enforce the additional speed zones associated with the 
proposed manatee refuge.
    Response 8: We are fully committed to implementing these protection 
areas, including enforcement of these areas upon posting. However, we 
are very aware of the fact that compliance is critical to the 
effectiveness of manatee protection area regulations and that 
compliance is facilitated, in large part, by enforcement. We are also 
aware that enforcement resources are limited at all levels of 
government, and that cooperation among law enforcement agencies is 
needed to maximize effectiveness of limited resources. We know that 
State and local law enforcement agencies have many enforcement mandates 
in addition to manatee protection and that it may be difficult for 
these agencies to make enforcement of Federal manatee protection areas 
a high priority. We believe that local and State law enforcement 
improves compliance with Federal designations and leads to more 
effective Federal rules. The final rule has been designed to reflect 
the best available information regarding manatee and boating use of 
these waters and is also intended to address (to the extent possible) 
State and local concerns regarding the rule. Again, we have made our 
designations consistent with the former regulations in order to 
minimize the boating public's confusion and to facilitate signage, 
enforcement, and compliance, while ensuring appropriate protection for 
manatees.
    Comment 9: Some commentors stated that the final rule establishing 
a Federal manatee refuge infringes on State and local rights and self-
government.
    Response 9: As it was presented in the ``Background'' section, the 
Service's action is not based on State law, but on a Federal regulation 
(50 CFR 17.103) which provides the standard for designation of a 
manatee protection area. The Service made the decision to establish 
this manatee refuge after carefully assessing the impacts the recent 
court rulings had on manatee protection as well as the best available 
information to evaluate manatee and human interactions at these former 
State speed zone sites in Lee County. If the State is successful in 
implementing its pending rules for Lee County, we will consider 
withdrawing the Federal designation of these sites.
    Comment 10: One commentor stated that the proposed manatee refuge 
poses a burden to boaters and to the county's economy.
    Response 10: We acknowledge that the speed limits would restrict 
boater's ability to travel at higher speeds and could result in some 
negative effect on recreational boaters and commercial fishermen. We 
have not been able to quantify the negative economic effects resulting 
from this rule, although we believe they would be small. The 
regulations associated with the manatee refuge are identical to the 
regulations associated with the former State speed zones which were 
established in 1999.
    Comment 11: One commentor stated that there are no data that speed 
zones protect manatees.
    Response 11: While no empirical studies specifically address this 
issue, we did consider the effects of speed zones on watercraft-related 
manatee mortality in the Caloosahatchee River, where similar 
restrictions (State and Federal) have been in place since 2003, to draw 
some conclusions regarding their potential effectiveness in the absence 
of data. The speed zones coupled with enforcement have so far been 
effective in protecting manatees. Our assessment indicates that the 
existing zones and the associated enforcement do in fact provide 
appropriate protection over most of the areas on the river where 
manatees and watercraft are likely to interact. For example, 
watercraft-related manatee mortality decreased in the Caloosahatchee 
River from 7 manatees in 2002, to 1 manatee in 2003 and 2004, 
respectively. Similarly, other areas have experienced the same trend; 
for instance, there have been no manatee deaths in the Barge Canal 
Federal Manatee Protection Area in Brevard County, Florida, since this 
area was posted.
    Comment 12: One commentor stated that slower boat speeds increase 
the risk of watercraft collisions with manatees.
    Response 12: As noted in our response to question 11, there have 
been no formal studies to date addressing this issue, however, similar 
restrictions on the Caloosahatchee River appear to have significantly 
reduced watercraft-related manatee mortalities.
    Comment 13: One commentor stated that carcass recovery does not 
equate to where manatees are killed or injured by watercraft.
    Response 13: Carcass recovery location does not necessarily 
correspond with the exact location of death and almost certainly does 
not correspond exactly with the point of contact for watercraft related 
injuries that result in mortality. However, there is a history of 
manatee mortalities in the manatee protection area as a result of 
collisions with watercraft. At least 18 manatees killed in collisions 
with watercraft have been recovered in the designated areas since 1999, 
with four carcasses recovered in 2004 from the sites that were former 
State speed zones eliminated by the court's ruling.
    Comment 14: One commentor stated that there is no evidence that 
protecting manatees will increase tourism.
    Response 14: To the extent that some portion of Florida's tourism 
is due to the existence of the manatee in Florida waters, the 
protection provided by this rule may result in an economic benefit to 
the tourism industry. However, we are not able to make an estimate of 
this benefit based on the available information.
    Comment 15: Two commentors stated that there is no evidence that 
slower boat speeds will result in economic benefits to waterfront 
property homeowners by reducing the costs to maintain and/or repair 
their seawalls.

[[Page 17868]]

    Response 15: Due to reduction in boat wake associated with speed 
zones, property owners may experience some economic benefits related to 
decreased expenditures for maintenance and repair of shoreline 
stabilization structures (i.e., seawalls along the water's edge). Bell 
and McLean's study (1997) of shoreline property values in Broward 
County indicate that, with all other factors being equal, shoreline 
property values went up by as much as 15 percent when there was a 
manatee slow speed zone adjacent to the property. However, we are not 
able to make an estimate of this benefit based on available 
information.
    Comment 16: One commentor stated that speed zones force boaters to 
other non-restricted areas that may not be as enjoyable or as suitable 
as the original destinations.
    Response 16: Some boaters may have to travel farther to participate 
in certain activities or they may choose to forgo some activities. 
However, the speed zone restrictions imposed by the rule do not 
prohibit any boating activities.
    Comment 17: One commentor stated that adding slow speed zones 
crowds more boats into areas where boating safety becomes an issue.
    Response 17: We were very cognizant of human safety issues when we 
designated these former State speed zones as emergency manatee 
protection areas and the manatee refuge. Human safety while boating has 
always been and will continue to be the responsibility of the vessel 
operator. The manatee refuge measures described in this final rule 
require vessels to proceed at slow speed and, as such, should enhance 
boater safety in these areas. At no site does the designation of these 
manatee protection areas place mariners in a position of encountering 
high-speed vessel traffic with no alternative safe route (what about 
crowding in the navigational channels?). We believe that our final 
designation should result in little or no adverse impacts on the 
boating public.
    Comment 18: One commentor stated that adding slow speed zones 
deters boaters from using their boats and encourages them towards other 
non-boating activities resulting in decreased spending by recreational 
boaters.
    Response 18: Please refer to the response to Comment 10.
    Comment 19: One commentor stated that speed zone posts and signs 
are a navigational hazard.
    Response 19: When we propose to designate a Federal manatee 
protection area, we must do so in accordance with the provisions of the 
United States Aids to Navigation System, part 62 of title 33 of the 
Code of Federal Regulations. The primary objective of the aids to 
navigation system is to mark navigable channels and waterways, 
obstructions adjacent to these waterways, and obstructions in areas of 
general navigation which may not be anticipated. Other waters, even if 
navigable, are generally not marked. Furthermore, we consider and 
assess all options for making the requisite postings safe for the 
boating public. Chapter 68D-23 Florida Administrative Code prescribe 
the procedures by which the State of Florida permits and regulates the 
placement of markers in, on, and over the waters of the state. These 
provisions also provide for the design, construction, characteristics 
and coloring of all such markers. These regulatory markers noticing 
boating restricted areas (speed zones) are authorized only for the 
purposes of protecting human life and limb, vessel traffic safety and 
maritime property, and manatees. Despite these requirements and 
precautions, there may be some waterbodies (e.g., physical 
configuration, intensity of boating activities) where the placement of 
posts and signs could pose a navigational hazard. Under such 
circumstances, the use of buoys instead of posts is a satisfactory 
alternative and meets the necessary marking requirements to define a 
manatee protection area.
    Comment 20: One commentor stated that speed zones force boats to 
travel outside of channels increasing the likelihood of groundings and 
motor/propeller damage.
    Response 20: Boaters in these waterways should be familiar with the 
proposed speed zones since they are identical to the former State speed 
zones which were in effect from 1999 to 2004. It should be noted that, 
while the County Court invalidated State-designated speed limits in the 
areas adjacent to navigation channels, it did not invalidate the 25-
miles per hour speed limit in the navigation channels that traverse the 
affected area. Thus, the speed limit in the navigation channel was 
lower than that of the surrounding, shallower areas. As a result, 
shallow-draft high-speed boats capable of traveling outside the 
navigation channels could operate at speeds greater than 25 miles per 
hour in the areas more likely to be frequented by manatees. This was 
one of several factors in our decision to emergency designate a manatee 
protection area.
    Comment 21: One commentor stated that slow speed zones increase the 
likelihood of carbon monoxide poisoning among boaters.
    Response 21: To date, we know of no reports citing the occurrence 
of carbon monoxide poisoning among Lee County boaters traveling in 
these former slow speed zones which were established in 1999 nor do we 
have any data or reports of this potential hazard occurring among 
boaters statewide.
    Comment 22: Two commentors stated that the Service has ignored a 
local court's decision which ruled that the former State speed zones 
were invalid and failed to adequately consider boaters' rights.
    Response 22: The court's decision in FWC vs. Wilkinson et al. was 
based on its review of a State statute and administrative code, as 
stated in our response to Comment 9. Our action is based on Federal 
law.
    Comment 23: Two commentors stated that the proposed rule threatens 
marine contractors with future moratoriums if Federal interests are not 
satisfied.
    Response 23: There is no language in the proposed or final rule 
that threatens to impose a moratorium on marine-related activities. 
This rule does not intend to suspend any activities, simply to modify 
speeds at which vessels travel in the areas outline in this rule.
    Comment 24: Many commentors recommended that sound science should 
be used in establishing manatee speed zones.
    Response 24: Designation of manatee protection areas involves both 
scientific and practical considerations. This final rule reflects the 
results of in-depth analysis of the best available scientific and 
commercial data, including careful evaluation of manatee and watercraft 
use information. In addition, we have conducted site visits, 
coordinated with State and local regulatory experts, and reviewed 
public comments.
    Comment 25: Some commentors recommended educating the boating 
public as a better alternative to implementing more boating rules and 
regulations.
    Response 25: Education and public awareness are important elements 
in the ongoing efforts to protect manatees; however, our analysis of 
the best available information indicates that speed zones and their 
requisite enforcement are equally important components in the 
comprehensive approach toward manatee protection.
    Comment 26: Some commentors suggest that the data do not warrant or 
support establishing additional manatee speed zones.
    Response 26: The Service has conducted an in-depth analysis of the 
best available data and evidence at this time has shown that 
establishing speed

[[Page 17869]]

zones is necessary to prevent the taking of one or more manatees.
    Comment 27: Some commentors believe that Save the Manatee Club will 
seek court action if the Service does not establish the Pine Island-
Estero Bay Manatee Refuge.
    Response 27: The judicial process is available to all persons or 
entities seeking to enforce a legal right or obtain a legal remedy. The 
Service cannot dictate the actions of these persons or entities. In 
designating the Pine Island-Estero Bay Refuge, the Service was guided 
by the provisions of 50 CFR 17.103.
    Comment 28: Some commentors suggest eliminating the warm water 
discharge from Florida Power and Light's power plant will do more to 
protect manatees than establishing additional speed zones.
    Response 28: A task force has been established to address issues 
related to warm-water discharge. However, this rule deals directly with 
mortality resulting from waterborne activities. The areas within the 
Pine Island-Estero Bay Manatee Protection Area have significant 
potential for ``take'' based on both manatee use and boating use. 
Additionally, without Federal protection these areas lack protective 
regulations at this time. Therefore, we are establishing this manatee 
protection area to prevent further take of manatees resulting from 
waterborne activities.
    Comment 29: Some commentors stated that, with the manatee 
population increasing, there is no need for establishing a Federal 
manatee refuge in Lee County.
    Response 29: The MMPA sets a general moratorium for the taking of 
marine mammals, including manatees. While there are provisions for 
incidental take of listed species under the ESA and the MMPA, 
authorization for incidental take of manatees under the MMPA has not 
been requested, nor have regulations to provide this authorization been 
developed. Incidental take of manatees without authorization is 
unlawful. Preventing the take of manatees as a result of watercraft 
collisions is a top priority in manatee recovery and management 
programs. The areas addressed in this rule have a significant potential 
for ``take'' based on the amount of manatee use as well as boating use 
and are characterized by the lack of current protective regulations. 
After evaluating the best available data, we have determined that 
designation is warranted pursuant to 50 CFR 17.103.
    Comment 30: One commentor expressed concerns with the effects of 
the proposed regulations on seaplane operations and recommended that 
seaplanes, in general, be excluded from the regulations associated with 
the proposed Pine Island-Estero Bay Manatee Refuge.
    Response 30: According to our regulations, the terms ``Water 
vehicle, watercraft, and vessel'' are defined to include, but are not 
limited to, ``boats (whether powered by engine, wind, or other means), 
ships (whether powered by engine, wind, or other means), barges, 
surfboards, personal watercraft, water skis, or any other device or 
mechanism the primary or an incidental purpose of which is locomotion 
on, or across, or underneath the surface of the water.'' This 
definition is sufficiently broad to include seaplanes, and the slow 
speed zones associated with this manatee refuge would effectively 
preclude the use of seaplanes on these waterways. We reviewed a similar 
comment for the Caloosahatchee River-San Carlos Bay Manatee Refuge and 
concluded that the seaplane business operating on the Caloosahatchee 
River, at that time, posed an insignificant and discountable threat to 
manatees (August 6, 2003; 68 FR 46870; see response to Comment 54). As 
far as we knew, there were no other seaplane operations in other parts 
of the county that would be affected by the regulations established in 
the Caloosahatchee, so we did not adopt a broader exclusion for 
seaplanes at the time. However, the aerial survey and telemetry data 
indicate the areas encompassing the Pine Island-Estero Bay manatee 
refuge receive significant manatee use although the use in Estero Bay 
is more seasonal. Given what we know about the distribution of manatees 
throughout the refuge, we conclude it is possible that a seaplane could 
encounter manatees in the refuge. In addition, during takeoff and 
landing, seaplanes operate at speeds in excess of 25 miles per hour 
over a distance of approximately 1,500 feet. Therefore, the final rule 
effectively prohibits seaplanes from landing or taking off throughout 
the Pine Island-Estero Bay Manatee Refuge year-round, although they may 
transit Estero Bay at speeds up to 25 miles per hour during the winter 
months.

Area Designated as a Manatee Refuge

Pine Island-Estero Bay Manatee Refuge

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

Effective Date

    Under the Administrative Procedure Act, our normal practice is to 
publish rules with a 30-day delay in effective date. However, for this 
rule, we are using the ``good cause'' exemption under 5 U.S.C. 
553(d)(3) to make this rule effective immediately upon publication 
because the data indicate manatees utilize these areas year-round, 
there is a history of take at these sites, and we do not anticipate any 
alternative protection measures being enacted by State or local 
governments in sufficient time to reduce the likelihood of take from 
occurring. The evidence leading to the imminent danger of taking one or 
more manatees is such that the Service established these areas as a 
Federal manatee refuge using the emergency rule process on April 7, 
2004; August 6, 2004; and December 6, 2004. Future take is imminent if 
the effective date of the rule is delayed.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget has determined that this rule is a 
significant regulatory action, as it may raise novel legal or policy 
issues The Office of Management and Budget has reviewed this rule.
    a. This rule will not have an annual economic impact of over $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. It is not expected that any 
significant economic impacts would result from the establishment of a 
manatee refuge (approximately 30 miles of waterways) in Lee County in 
the State of Florida.
    The purpose of this rule is to establish a manatee refuge in Lee 
County, Florida. We are preventing the take of manatees by controlling 
certain human activity in this county. For the manatee refuge, the 
areas are year-round slow speed, seasonal slow speed or seasonal speed 
limits of 25 miles per hour. Affected waterborne activities include, 
but are not limited to, transiting, cruising, water skiing, fishing, 
marine construction, and the use of all water vehicles. This rule

[[Page 17870]]

will impact recreational boaters, commercial charter boats, and 
commercial fishermen, primarily in the form of restrictions on boat 
speeds in specific areas. We will experience increased administrative 
costs due to this rule. Conversely, the rule may also produce economic 
benefits for some parties as a result of increased manatee protection 
and decreased boat speeds in the manatee refuge areas.
    Regulatory impact analysis requires the comparison of expected 
costs and benefits of the rule against a ``baseline,'' which typically 
reflects the regulatory requirements in existence prior to the 
rulemaking. For purposes of this analysis, the baseline assumes that 
the Pine Island-Estero Bay area has no regulating speed limits other 
than the 25 miles per hour in the navigation channels. The State-
designated speed zones, other than in the navigation channels, have 
been lifted by a County Court decision. However, residents and other 
waterway users have lived with speed restrictions in these areas since 
1999 and have established business and recreational patterns on the 
water to accommodate their needs and desires for water-based 
recreation. The actual economic effects may very well be insignificant 
because almost all users have been previously subject to these 
restrictions. Thus, the rule is expected to have only an incremental 
effect. As discussed below, the net economic impact is not expected to 
be significant, but cannot be monetized given available information.
    The actual economic impacts of this rule are expected to be 
insignificant and would be due to the changes in speed zone 
restrictions in the manatee refuge area. These speed zone changes are 
summarized in the proposed and final rules.
    In addition to speed zone changes, the rule no longer allows for 
the speed zone exemption process in place under State regulations. 
Currently, Florida's Manatee Sanctuary Act allows the State to provide 
exemptions from speed zone requirements for certain commercial 
activities, including fishing and events such as high-speed boat races. 
Under State law, commercial fishermen and professional fishing guides 
can apply for permits granting exemption from speed zone requirements 
in certain counties. Speed zone exemptions were issued to 27 permit 
holders in the former State zones that comprise the proposed manatee 
refuge area.
    In order to gauge the economic effect of this rule, both benefits 
and costs must be considered. Potential economic benefits related to 
this rule include increased manatee protection and tourism related to 
manatee viewing, increased number of marine construction permits 
issued, increased fisheries health, and decreased seawall maintenance 
costs. Potential economic costs are related to increased administrative 
activities related to implementing the rule and affected waterborne 
activities. Economic costs are measured primarily by the number of 
recreationists who use alternative sites for their activity or have a 
reduced quality of the waterborne activity experience at the designated 
sites. In addition, the rule may have some impact on commercial fishing 
because of the need to maintain slower speeds in some areas. The 
extension of slower speed zones in this rule is not expected to affect 
enough waterborne activity to create a significant economic impact 
(i.e., an annual impact of over $100 million).

Economic Benefits

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

Economic Costs

    The economic impact of the designation of a manatee refuge results 
from the fact that, in certain areas, boats are required to go slower 
than they would under certain conditions. Some impacts may be felt by 
recreationists who have to use alternative sites for their activity or 
who have a reduced quality of the waterborne activity experience 
throughout the designated site because of the rule. For example, the 
extra time required for anglers to reach fishing grounds could reduce 
onsite fishing time and could result in lower consumer surplus for the 
trip. Consumer surplus, in this case, could be defined as the 
difference between what consumers are willing to pay for the trip and 
the amount consumers actually pay for the trip. Other impacts of the 
rule may be felt by commercial charter boat outfits, commercial 
fishermen, and agencies that perform administrative activities related 
to implementing the rule.

Affected Recreational Activities

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

Affected Commercial Charter Boat Activities

    Various types of charter boats use the waterways in the affected 
counties,

[[Page 17871]]

primarily for fishing and nature tours. The number of charter boats 
using the Pine Island-Estero Bay area is currently unknown. For nature 
tours, the extension of slow speed zones is unlikely to cause a 
significant impact, because these boats are likely traveling at slow 
speeds. The extra time required for commercial charter boats to reach 
fishing grounds could reduce onsite fishing time and could result in 
fewer trips. The fishing activity is likely occurring at a slow speed 
and will not be affected. Added travel time may affect the length of a 
trip, which could result in fewer trips overall, creating an economic 
impact. According to one professional guide with a State permit, the 
exemption is important to him financially. The exemption allows him to 
take clients to areas where they spend more time fishing instead of 
traveling to fish, an important requirement for paying customers. 
Without the exemption, he doesn't take clients on a half-day charter to 
fish an area with an idle or slow speed zone at the risk of losing the 
charter. As his primary source of income, the loss of a charter has a 
significant affect on his ability to make a living. Instead, he travels 
to areas where there are no speed zones in order for his clients to 
fish.

Affected Commercial Fishing Activities

    Several commercial fisheries will experience some impact due to the 
regulation. To the extent that the regulation establishes additional 
speed zones in commercial fishing areas, this will increase the time 
spent on the fishing activity, affecting the efficiency of commercial 
fishing. While limited data are available to address the size of the 
commercial fishing industry in the manatee refuge, county-level data 
generally provide an upper bound estimate of the size of the industry 
and potential economic impact.
    Given available data, the impact on the commercial fishing industry 
of extending slow speed zones in the Pine Island-Estero Bay area cannot 
be quantified. The designation will likely affect commercial fishermen 
by way of added travel time, which can result in an economic impact. 
Some of the 27 active permit holders with speed limit exemptions are 
commercial fishermen. According to one commercial mullet fisherman with 
a State permit, the exemption is worthless to him. The State's permit 
exempts him from the speed zones restrictions in Matlacha Pass; 
however, the schools of mullet which he targets are primarily in the 
Caloosahatchee River, an area where he cannot get an exemption because 
of the Caloosahatchee River-San Carlos Bay Manatee Refuge established 
in 2003. Nevertheless, because the manatee refuge designation will not 
prohibit any commercial fishing activity and because there is a channel 
available for boats to travel up to 25 miles per hour in the affected 
areas, the Service believes that it is unlikely that the rule will 
result in a significant economic impact on the commercial fishing 
industry. It is important to note that, in 2001, the total annual value 
of potentially affected fisheries was approximately $8.3 million 
(2001$); this figure represents the economic impact on commercial 
fisheries in these counties in the unlikely event that the fisheries 
would be entirely shut down, which is not the situation associated with 
this rule.

Agency Administrative Costs

    The cost of implementing the rule has been estimated based on 
historical expenditures by the Service for manatee refuges and 
sanctuaries established previously. The Service expects to spend 
approximately $600,000 (2002$) for posting and signing 15 previously 
designated manatee protection areas (an average of $40,000 per area). 
This represents the amount that the Service will pay contractors for 
creation and installation of manatee refuge signs. While the number and 
location of signs needed to post the manatee refuge is not known, the 
cost of manufacturing and posting signs to delineate the manatee refuge 
in this rule is not expected to exceed the amount being spent to post 
previously designated manatee protection areas (Service 2003a). 
Furthermore, there are unknown additional costs associated with the 
semi-annual requirement for seasonal conversion (flipping) of 
regulatory signs as well as routine maintenance of these posts and 
signs. In addition, the Service anticipates that it will spend 
additional funds for enforcement of a newly designated manatee refuge 
once the final rule is passed. These costs, including the cost of fuel, 
cannot be accurately estimated at this time. The costs of enforcement 
may also include hiring and training new manatee enforcement officers 
and special agents as well as the associated training, equipment, 
upkeep, and clerical support (Service 2003b). Finally, there are some 
costs for education and outreach to inform the public about this new 
manatee refuge area.
    While the State of Florida has 12,000 miles of rivers and 3 million 
acres of lakes, this rule will affect approximately 30 waterway miles. 
The speed restrictions in this rule will cause inconvenience due to 
added travel time for recreationists and commercial charter boats and 
fishermen. As a result, the rule will impact the quality of waterborne 
activity experiences for some recreationists and may lead some 
recreationists to forgo the activity. This rule does not prohibit 
recreationists from participating in any activities. Alternative sites 
are available for all waterborne activities that may be affected by 
this rule. The distance that recreationists may have to travel to reach 
an undesignated area varies. The regulation will likely impact some 
portion of the charter boat and commercial fishing industries in these 
areas as well. The inconvenience of having to go somewhat slower in 
some areas may result in changes to commercial and recreational 
behavior, resulting in some regional economic impacts. Given available 
information, the net economic impact of designating the manatee refuge 
is not expected to be significant (i.e., an annual economic impact of 
over $100 million). While the level of economic benefits that may be 
attributable to the manatee refuge is unknown, these benefits would 
cause a reduction in the economic impact of the rule.
    b. This rule will not create inconsistencies with other agency 
actions. The precedent to establish manatee protection areas has been 
established primarily by State and local governments in Florida. We 
recognize the important role of State and local partners and continue 
to support and encourage State and local measures to improve manatee 
protection. We are designating the Pine Island-Estero Bay area, where 
previously existing State designations have been eliminated, to protect 
the manatee population in that area.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Minimal restriction to existing human uses of the sites would result 
from this rule. No entitlements, grants, user fees, loan programs or 
effects on the rights and obligations of their recipients are expected 
to occur.
    d. OMB has determined that this rule may raise legal and policy 
issues. Therefore, OMB has reviewed the rule pursuant to E.O. 12866.

Regulatory Flexibility Act

    We certify that this rule will not have a significant economic 
effect on a substantial number of small entities as defined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial/final 
Regulatory Flexibility Analysis is not required. Accordingly, a Small

[[Page 17872]]

Entity Compliance Guide is not required.
    In order to determine whether the rule will have a significant 
economic effect on a substantial number of small entities, we utilize 
available information on the industries most likely to be affected by 
the designation of the manatee refuge. Currently, no information is 
available on the specific number of small entities that are potentially 
affected. However, 27 permit holders were exempt from the speed limits 
in the former State-designated speed zones. Since these speed zones 
have been in place since 1999 and boaters have adjusted to their 
presence and there were no other permit holders, it is reasonable to 
expect that the proposed rule will impact only the 27 permit holders. 
They are primarily commercial fishing boats and fishing guides. Both 
would be considered small businesses. The 27 permit holders had State 
exemptions from the speed restrictions based on an application that 
stated they would suffer at least a 25 percent income loss without the 
permit. The usual income level for these businesses is not known; 
however, a 25 percent loss of business income is significant regardless 
of the level of business income. We acknowledge that there could be a 
significant loss of income to those permit holders that rely on speed 
to carry out their business activities; however, the Service believes 
that the 27 permit holders do not constitute a substantial number.
    Except for the former 27 permit holders, this rule will not really 
affect the travel time for recreational boating and commercial 
activities. Because the only restrictions on recreational activity 
result from added travel time and alternative sites are available for 
all waterborne activities, we believe that the economic effect on small 
entities resulting from changes in recreational use patterns will not 
be significant. The economic effects on most small businesses resulting 
from this rule are likely to be indirect effects related to reduced 
demand for goods and services if recreationists choose to reduce their 
level of participation in waterborne activities. Similarly, because the 
only restrictions on commercial activity result from the inconvenience 
of added travel time, and boats can continue to travel up to 25 miles 
per hour in the navigation channels, we believe that any economic 
effect on small commercial fishing or charter boat entities (other than 
the 27 permit holders) will not be significant. Also, the indirect 
economic impact on small businesses that may result from reduced demand 
for goods and services from commercial entities is likely to be 
insignificant.
    The employment characteristics of Lee County are shown in Table 1 
for the year 1997. We included the following SIC (Standard Industrial 
Classification) categories, because they include businesses most likely 
to be directly affected by the designation of a manatee refuge:
    Fishing, hunting, trapping (SIC 09)
    Water transportation (SIC 44)
    Miscellaneous retail (SIC 59)
    Amusement and recreation services (SIC 79)
    Non-classifiable establishments (NCE)

                                           Table 1.--Employment Characteristics of Lee County in Florida--1997
                                                     [Includes SIC Codes 09, 44, 59, 79, and NCE\a\]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Select SIC codes  (includes SIC codes 09, 44, 59, 79, and NCE
                               Total  Mid-                                                                             \a\)
                                  March       Mid-March        Total                     ---------------------------------------------------------------
           County              employment    employment   establishments       Total         Number of       Number of       Number of       Numbe