[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15617-15635]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6055]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2010-0079; FXES11130900000C3-123-FF09E30000]
RIN 1018-AX27
Endangered and Threatened Wildlife and Plants; Establishing a
Manatee Refuge in Kings Bay, Citrus County, FL
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, establish a manatee
refuge in Citrus County, Florida, in the waters of Kings Bay, including
its tributaries and connected waters. This action is based on our
determination that there is substantial evidence showing that certain
waterborne activities would result in the taking of one or more
manatees and that certain waterborne activities must be restricted to
prevent the taking of one or more manatees in Kings Bay. In making this
rule final, we considered the biological needs of the manatee, the
level of take at these sites, and the likelihood of additional take of
manatees due to human activity at these sites.
This final rule is modified from the proposed rule to ensure that
the provisions do not compromise human safety and to clarify certain
aspects. The modifications are not considered significant as they are
within the scope of the proposed rule. To avoid creation of a hazard to
human safety, watercraft may be operated at 25 miles per hour during
daylight hours in a portion of the manatee refuge from June 1 through
August 15. The portion of the rule prohibiting use of mooring and
floatlines that can entangle manatees has been removed. Language
regarding prohibitions on waterborne activities in Three Sisters Spring
has been revised to improve clarity. We also announce the availability
of a final environmental assessment and Finding of No Significant
Impact for this action.
DATES: This rule is effective March 16, 2012.
ADDRESSES: This final rule, and supporting documentation, including
public comments, are available on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2010-0079. Comments and
materials received, as well as supporting documentation used in
preparing this final rule, are also available for public inspection, by
appointment, during normal business hours at the U.S. Fish and Wildlife
Service, North Florida Ecological Services Office, 7915 Baymeadows Way,
Suite 200, Jacksonville, Florida, 32256.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and
Wildlife Service, North Florida Ecological Services Office, 7915
Baymeadows Way, Suite 200, Jacksonville, Florida, 32256; by telephone
(904/731-3336); by facsimile (904/731-3045); by email: manatee@fws.gov;
or on-line at http://www.fws.gov/northflorida. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Previous Federal Actions
The West Indian manatee (Trichechus manatus) was listed as an
endangered species on June 2, 1970 (35 FR 8491), under the Endangered
Species Conservation Act of 1969 and this status was retained under the
Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et
seq.), and the population is further protected as a depleted stock
under the Marine Mammal Protection Act of 1972, as amended (MMPA) (16
U.S.C. 1361 et seq.). On October 22, 1979, the U.S. Fish and Wildlife
Service (Service) adopted a regulatory process to provide a means for
establishing manatee protection areas in waters under the jurisdiction
of the United States where manatees were taken by waterborne activities
(44 FR 60964). The first manatee protection areas were designated in
Kings Bay on November 12, 1980, for the purpose of preventing the take
of manatees by harassment from waterborne activities and included the
Banana Island Sanctuary (including King Spring), the Sunset Shores
Sanctuary, and the Magnolia Springs Sanctuary (45 FR 74880). The
Service subsequently designated four additional manatee protection
areas in Kings Bay on May 12, 1994, and on October 16, 1998, (including
the Buzzard Island Sanctuary, Tarpon Springs Sanctuary, Warden Key
Sanctuary, and Three
[[Page 15618]]
Sisters Springs Sanctuary, respectively) (59 FR 24654 and 63 FR 55553).
To prevent the imminent take of manatees by waterborne activities, we
published an emergency rule that temporarily established the Kings Bay
manatee refuge in Citrus County, Florida, on November 9, 2010 (75 FR
68719). On June 22, 2011, the Service proposed to establish the manatee
refuge throughout Kings Bay, while maintaining the seven existing
Manatee Sanctuaries in the Bay (76 FR 36493).
The West Indian manatee includes two subspecies: the Florida
manatee (Trichechus manatus latirostris) and the Antillean manatee
(Trichechus manatus manatus). Florida manatees can be found throughout
the southeastern United States, with Florida at the core of its range.
Extensive efforts are ongoing by the Service and the Florida Fish and
Wildlife Conservation Commission (Commission or FWC) to recover this
species. In particular, significant efforts are made to minimize human-
related threats and to reduce the number of manatees taken by human
activities.
Take, as defined by section 3(19) of the ESA, means to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to
attempt to engage in any such conduct. Harm is further defined by
regulation at 50 CFR 17.3 to mean an act which actually kills or
injures wildlife. Harass is also defined by regulation to mean any
intentional or negligent act or omission which creates 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).
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. Take is further defined in 50 CFR 18.3 to include,
without limitation, any of the following: The collection of dead
animals or parts thereof; the restraint or detention of a marine
mammal, no matter how temporary; tagging a marine mammal; or the
negligent or intentional operation of an aircraft or vessel, or the
doing of any other negligent or intentional act which results in the
disturbing or molesting of a marine mammal. Under section 3(18) of the
MMPA, harassment is defined to include any act of pursuit, torment, or
annoyance, which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A); 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 (Level
B). All takings, including takings by harassment, are prohibited.
The primary human-related causes of death and injury to manatees
rangewide include watercraft-related strikes (impacts and/or propeller
strikes), entrapment and/or crushing in water control structures
(gates, locks, etc.), and entanglement in fishing lines, crab pot
lines, etc. A 2005 analysis concluded that watercraft-related mortality
was the leading human-related cause of death for manatees throughout
Florida (MPSWG 2005, p. 5). A subsequent threats analysis concluded
that watercraft strikes and the potential loss of warm-water habitat
pose the greatest threats to the Florida manatee population (Runge et
al. 2007, p. 17).
The Service may establish manatee protection areas (in the form of
a manatee refuge or a manatee sanctuary) whenever there is substantial
evidence showing that such establishment is necessary to prevent the
taking of one or more manatees. Regulations authorizing designation of
manatee refuges and sanctuaries in areas where restrictions or
prohibitions on certain waterborne activities are needed to prevent the
take of manatees are codified in 50 CFR 17 subpart J. A manatee refuge
is defined as an area in which the Director has determined that: (1)
Certain waterborne activities would take one or more manatees; or (2)
certain waterborne activities must be restricted to prevent the take of
one or more manatees, including but not limited to taking by
harassment. A manatee sanctuary is an area where it has been determined
that any waterborne activity would result in the taking of one or more
manatees, including but not limited to a taking by harassment (50 CFR
17.102). Manatee refuges and manatee sanctuaries are established under
a different authority from Federal National Wildlife Refuges.
Kings Bay
The Florida manatee's range includes Kings Bay, Florida. Kings Bay
is a large embayment located at the headwaters of the Crystal River, a
tidal river located on Florida's west coast. Springs are the primary
water source for this estuarine system; a recent report describes 70
springs that discharge warm, artesian water (that is, water rises under
pressure from a permeable stratum overlaid by impermeable rock) into
Kings Bay (Vanasse, Hangen, and Brustlin, Inc., 2010, p. 1). Kings Bay
is partially located within the City of Crystal River's city limits,
and wholly within Citrus County, Florida. Citrus County and the City of
Crystal River are an integral part of ``Florida's Nature Coast,'' a
northwestern Florida region marketed for outdoor recreational
opportunities, including opportunities for viewing manatees (Nature
Coast Coalition 2010 Web site). In addition to viewing manatees, area
recreationists engage in snorkeling and diving, boating, canoeing and
kayaking, fishing, waterskiing, and other activities (Gold 2008, pp. 4-
5). Local eco-tour operators, dive shops, marinas, hotels and motels,
restaurants, and other businesses benefit from these activities
(Buckingham 1990, p. 6).
The Kings Bay springs constitute one of the most important natural
warm-water shelters for manatees. Manatees have historically been
attracted to the warm, spring-fed waters in Kings Bay where they
retreat from the cold during the winter. As manatee populations have
increased, year-round use of Kings Bay by manatees has increased
accordingly (Figures 1 and 2). Wintering manatees have been the focus
of a manatee viewing industry for many years, and bay waters are widely
used by commercial and recreational waterway users for a variety of
activities throughout the year. Manatees are struck and killed or
injured by watercraft operating in Kings Bay. Manatees are harassed by
the viewing public. The number of manatees struck and killed by
watercraft in Kings Bay is increasing, as are the number of public
reports of acts of manatee harassment.
BILLING CODE 4310-55-P
[[Page 15619]]
[GRAPHIC] [TIFF OMITTED] TR16MR12.000
BILLING CODE 4310-55-C
[[Page 15620]]
Watercraft associated with recreational and commercial activities
strike and kill manatees. In the State's northwestern region, where
Kings Bay is located, adult manatee mortality is almost equally split
between human-related and natural causes, with watercraft collisions
being the leading source of human-caused mortality. According to
mortality statistics compiled by the FWC, 13 manatees killed as a
result of collisions with watercraft have been recovered within the
boundaries of the Kings Bay manatee refuge (as established by this
rule) between April 1974 and November 2010; all of these occurred since
1999 (Table 1; FWC FWRI Manatee Mortality Database 2011 Web site).
Table 1--All Carcasses Recovered in the ``Kings Bay'' Region From April 1974 Through November 2010 for Which the
Cause of Death Was Specifically Determined To Be Watercraft. *The Entry for 06/11/2002 Is a Carcass That Was
Recovered Outside of the Boundaries of the Kings Bay Manatee Refuge (as Established by This Rule), but
Considered the ``Kings Bay'' Region by FWC
[Data source: FWC FWRI Manatee Mortality Database 2011 Web site]
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Probable cause
FL county Date Field ID Sex Size (cm) Region of death
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Citrus........... 10/27/1999 MNW9934 F 268 Kings Bay...... Watercraft.
Citrus........... 10/12/2000 MNW0029 F 275 Kings Bay...... Watercraft.
Citrus........... 06/11/2002 MNW0222 M 207 Kings Bay*..... Watercraft.
Citrus........... 07/17/2002 MNW0229 F 310 Kings Bay...... Watercraft.
Citrus........... 02/01/2003 MNW0305 F 257 Kings Bay...... Watercraft.
Citrus........... 06/01/2004 MNW0417 F 204 Kings Bay...... Watercraft.
Citrus........... 05/19/2006 LPZ102120 F 259 Kings Bay...... Watercraft.
Citrus........... 05/24/2007 MNW0715 F 227 Kings Bay...... Watercraft.
Citrus........... 07/04/2007 MNW0721 F 331 Kings Bay...... Watercraft.
Citrus........... 08/23/2007 LPZ102383 M 262 Kings Bay...... Watercraft.
Citrus........... 03/25/2008 MNW0813 F 219 Kings Bay...... Watercraft.
Citrus........... 07/13/2008 MNW0814 M 228 Kings Bay...... Watercraft.
Citrus........... 12/05/2008 LPZ102654 F 261 Kings Bay...... Watercraft.
Citrus........... 01/03/2010 MNW1002 M 246 Kings Bay...... Watercraft.
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Manatee viewing activities provide a significant source of revenue
to the local economy (Buckingham 1990, p. 6). Local eco-tour businesses
bring visitors out to Kings Bay where visitors view manatees while in
the water, from boats, and from other vantage points. Some manatees
initiate encounters with visitors, but most manatees avoid or ignore
encounters with people, preferring to frequent manatee sanctuaries
where all human activities are prohibited. Some manatees are harassed
by visitors, despite the fact that all forms of harassment are
prohibited by law.
Hartman (1979, pp. 128-131) was the first to observe and describe
how manatees respond to the presence of people in the water, observing
that most manatees tended to avoid people, some ignored people, a few
approached people and then left, and some approached and initiated
interactions with people. These observations were made in Kings Bay's
warm water springs and the author correlated a reduction in the number
of manatees using the Main Spring with an increasing number of people
(Hartman 1979, p. 131). Concern has been expressed about manatees
displaced from warm water springs for prolonged periods of time;
prolonged exposure to cold can be fatal to manatees, especially for
smaller animals (O'Shea 1995, p. 304). Hartman (1979, p. 126) believed
that manatees in Kings Bay are harassed by people in the water and by
boats.
Researchers have observed and documented manatee responses to
people and boats (Sorice et al. 2003, p. 324). Researchers noted
increases in swimming, milling, and cavorting behaviors and decreases
in resting, feeding, and nursing behaviors in the presence of
increasing numbers of people and boats (Abernathy 1995, pp. 23-26;
Wooding 1997, p. 1; King and Heinen 2004, pp. 230-231). They also
observed that increases in numbers of boats and people prompted
manatees to use other areas (Kochman et al. 1985, pp. 922-924;
Buckingham et al. 1999, p. 514). However, none of these studies'
observations of manatee responses to viewing participants and boats
suggest that harm (killing or injuring of manatees) has occurred or is
occurring (Sorice et al. 2003, p. 320). Nor have there been any
significant increases in the number of cold-related injuries and
mortalities in the northwestern Florida region, even in the recent
extreme cold events, which killed large numbers of manatees in other
portions of the winter range. For example, in the 2009-2010 winter cold
event, only two deaths due to cold stress were recorded in Citrus
County while to the south in Lee County, 24 manatee deaths were
reported due to cold stress (FWC FWRI Manatee Mortality Database 2011
Web site). Manatee survival rates in the northwestern region are among
the highest in Florida (Runge et al. 2007, p. 20).
Observations of manatee harassment in Kings Bay prompted the
Service to promulgate a rule in 1979 that allowed the agency to
designate manatee protection areas where certain waterborne activities,
including boating and swimming, could be prohibited in order to
``reduce the incidence of manatee injuries and deaths'' and to ``lessen
the likelihood that manatees will encounter boats and people'' (44 FR
60964; October 22, 1979). Subsequently, three manatee sanctuaries were
designated in Kings Bay in 1980 (45 FR 74880; November 12, 1980) and,
in 1983, the Service purchased lands in and around Kings Bay and
established the Crystal River NWR for the purpose of protecting
manatees and to educate the public about manatees.
In 1994, citing a doubling of the number of manatees in the area
since 1980, a large increase in the number of visitors, the inability
of the existing sanctuaries to provide sufficient shelter for manatees,
and reports of increasing manatee harassment, the Service designated
three additional sanctuaries in Kings Bay to prevent the take of
manatees by harassment (59 FR 24654; May 12, 1994). This expansion was
[[Page 15621]]
followed by the addition of another sanctuary in 1998, similarly
justified by reports of increasing harassment and observations of
increasing numbers of manatees, increasing numbers of recreational
divers and snorkelers, and insufficient space for manatees to rest,
free from harassment (63 FR 55553; October 16, 1998: See Table 2.).
Table 2--Information Justifying Previous Manatee Sanctuary Designations in Kings Bay, Florida
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Approximate Number of
Date of Kings Bay manatee sanctuary number of Estimated number of people viewing sanctuary
designations manatees using manatees designations
Kings Bay new (total)
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November 12, 1980 (45 FR 74880)...... 100 30,000 to 40,000......................... 3(3)
May 12, 1994 (59 FR 24654)........... 240 60,000 to 80,000......................... 3(6)
October 16, 1998 (63 FR 55553)....... 250 100,000.................................. 1(7)
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Over the last 30 years (1980-2010), the Service and the State of
Florida have created a network of manatee protection areas within the
Kings Bay area. This network was designed to prevent the take of
manatees by waterborne activities, including but not limited to,
boating and manatee viewing activities, and was established to allow
manatees to continue to gain access to critical warm-water areas and
important resting and foraging areas. During the manatee season
(November 15 through March 31), the network includes seven Federal
manatee sanctuaries (which are described in our regulations at 50 CFR
17.108(a)(1)-(a)(7)) and five State manatee protection zones (as
described in Chapter 68C-22, ``The Florida Manatee Sanctuary Act''
(2010)).
The seven Federal sanctuaries are located at heavily-used winter,
warm-water sites (springs) and foraging areas and preclude all
waterborne activities within their boundaries, preventing take from
both boating and manatee viewing within these areas. The State
protection zones include year-round idle and slow-speed zones that
prevent the take of manatees from high-speed watercraft collisions.
Given the State's statutory responsibilities for balancing the needs of
manatees with the needs of the boating community, the State designated
a 35-mile per-hour (mph) (daytime)/25 mph (nighttime) watersports area
(watersports area) in Kings Bay between May 1 and August 31. This area
encircles Buzzard Island in the center of the bay.
This network of manatee protection areas is enforced by Service,
State, and local law enforcement officers. Extensive outreach and
education programs support the protection area network, encouraging the
public who engage in waterborne activities, including boating, manatee
viewing activities, and others, to avoid taking manatees.
Summary of Comments and Recommendations
In the June 22, 2011, proposed rule (76 FR 36493), we requested
comments concerning any aspect of the proposal and the accompanying
draft Environmental Assessment (EA) that might contribute to
development of the final decision on the proposed rule. A 60-day
comment period was provided. We sent notifications and other
informational materials about the proposal to Federal and State
agencies, Congressional representatives, conservation groups, local
governments, local commercial diving operations, and numerous private
citizens who may be affected or had expressed an interest in receiving
further information on the proposal. In accordance with our policy on
peer review, published on July 1, 1994 (59 FR 34270), we also provided
copies of the proposed rule to three appropriate independent peer
reviewers.
We published a legal notice in the Citrus County Chronicle
newspaper on June 24, 2011, announcing the proposal and availability of
the draft EA, inviting public comment on both, and announcing the
schedule for the informal open house and formal public hearing.
Informational flyers were also distributed by the Crystal River
National Wildlife Refuge (NWR) staff and friends group to all
waterfront properties adjoining Kings Bay, as well as other nearby
residences, and copies were mailed to the NWR's Comprehensive
Conservation Plan development stakeholder and interested party list.
We held a public informational open house and formal public hearing
at the College of Central Florida--Citrus Campus, CF Conference Center
in Lecanto, Florida, on July 7, 2011. The public hearing was attended
by 169 people, not including Service staff. Of the 49 hearing attendees
who signed up to speak, 42 provided oral comments (including 15 local
officials).
During the comment period, we received 415 written comments and 42
oral comments. A number of reviewers attached supporting documents such
as petitions with multiple signatures or member form letters. Overall,
comments came from individuals, conservation organizations, property
owners, dive shop owners, tour operators, business owners, local
officials, and other stakeholders. The majority of the comments
expressed support for or opposition to the proposed manatee refuge
without any substantive data or information provided for Service
consideration.
Those expressing support generally either supported the rule as
proposed, with some minor modifications and suggestions for improving
education, or expressed concerns that it was not extensive enough.
Those expressing opposition cited a broad range of concerns including
riparian property rights, lack of alternatives considered, perception
that the public was not involved earlier in the process, recreational
user safety, and perceived economic effects. In some cases those in
opposition generally supported most of the winter aspects of the rule
but not the year-round watercraft restrictions. Analysis of all
comments received is summarized in the main issues that are identified
and discussed below.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from three knowledgeable
individuals with expertise in various aspects of the rule. We received
responses from two of the peer reviewers. The peer reviewers generally
concurred with our proposal and its content. One provided an additional
economic reference, which was incorporated into the EA. Another
recommended protection of an additional spring (Hunter Spring) but did
not provide accompanying justification. The Service does not have
[[Page 15622]]
sufficient information to justify its inclusion at this time.
Public Comments
In responding to public comments, the Service has grouped similar
comments into a single cohesive comment/response in order to provide
greater clarity to the reader. We have not addressed or included
comments that were unrelated to the rule, for example, comments about
critical habitat designation. Finally, there were comments that were
unrelated to the mechanics or effects of the rule such as perceptions,
motives, etc. These comments are not addressed in the final rule but
may be addressed in outreach materials accompanying the release of the
final rule.
(1) Comment: With the increased number of manatees using Kings Bay,
the death of one manatee should be acceptable.
Our Response: The available data show that, in several years, one
or more manatees have been killed or harassed; the Service is
establishing the manatee refuge in Kings Bay with the intent of
reducing those impacts. All take (as defined by the ESA and the MMPA)
of manatees, including take by harassment, is prohibited by Federal
law.
(2) Comment: The Service did not fully engage the public in the
Federal rulemaking process.
Our Response: In accordance with 50 CFR 17.100-108, we issued an
emergency rule on November 9, 2010 (75 FR 68719) to establish Kings Bay
as a manatee refuge to prevent the imminent take of manatees by
waterborne activities. We held four informational meetings with the
community to provide the public with information on the next steps in
the regulatory process as well as for the exchange of useful
information. These meetings were held on November 16, 18, and 20 and
December 2, 2010, at the Plantation Inn and Golf Resort, Crystal River,
FL, to initiate the process of formalizing the manatee emergency
regulation. On June 22, 2011 (76 FR 36493), we proposed to establish
Kings Bay as a manatee refuge as defined under 50 CFR 17 subpart J and
announced a public hearing on this proposed rule. A 60-day public
comment period was provided. On July 7, 2011, we held the public
hearing at the College of Central Florida--Citrus Campus, CF Conference
Center in Lecanto, Florida. As stated above, the public hearing was
well attended, and overall we received 415 written comments and 42 oral
comments from interested parties. We have worked closely with the
public and the State of Florida and fully engaged the public in the
rulemaking process in accordance with applicable laws and regulations.
We have thoroughly evaluated and considered comments received and
incorporated edits to the regulation where appropriate.
(3) Comment: The establishment of Kings Bay as a manatee refuge is
an expansion of the Federal Crystal River National Wildlife Refuge.
Our Response: The manatee protection area (manatee refuge)
established in Kings Bay through this final rule does not alter the
boundary of the existing Crystal River National Wildlife Refuge,
although it does overlap with part of this National Wildlife Refuge. It
is an area established in accordance with 50 CFR 17.100-108, subpart J,
the sole purpose of which is to prevent the take of one or more
manatees from waterborne activities being conducted in the area. As
previously defined, ``manatee refuges'' are established solely to
prevent the take of one or more manatees. They are protection areas
designated in the water and are not land acquisitions or land parcels.
No ownership of the waterways or submerged lands is transferred as a
result of establishing a manatee protection area (i.e., a manatee
refuge or manatee sanctuary). National Wildlife Refuges, on the other
hand, are part of the Federal National Wildlife Refuge System. These
are Federal lands set aside to conserve America's fish, wildlife, and
plants through the National Wildlife Refuge System Improvement Act of
1997. The manatee protection area (manatee refuge) established in Kings
Bay through this final rule is also not an expansion of an existing
Federal Crystal River National Wildlife Refuge. The Crystal River
National Wildlife Refuge Fish and Wildlife Service staff is only
associated with this manatee refuge because they will be a part of the
team that implements the management activities detailed in this rule,
as they currently are for the seven existing Federal seasonal manatee
sanctuaries in Kings Bay.
(4) Comment: The establishment of Kings Bay as a manatee refuge
will stop all boating activity and recreation.
Our Response: Designating Kings Bay as a manatee refuge pursuant to
50 CFR 17.100-108, subpart J, will not stop all boating and
recreational activity. It provides for specific prohibitions, including
speed and anchoring restrictions, time and area prohibitions, and
prohibited activities such as chasing manatees, to avoid and minimize
the harassment of manatees. However, boating, fishing, kayaking, and
other forms of recreation are still allowed within all or portions of
the manatee refuge, except in manatee sanctuaries and temporary no
entry areas while they are in effect, as defined in the rule portion of
this regulation.
(5) Comment: The proposed designation of Kings Bay as a manatee
refuge infringes on property rights of homeowners that own property on
the banks of Kings Bay. The establishment of Kings Bay as a manatee
refuge will require homeowners on Kings Bay to get a permit.
Our Response: Manatee protection areas (manatee sanctuaries) were
established in Kings Bay in 1980, 1994, and 1998. With all of these
rules, exceptions were allowed for homeowners that own property on the
banks of Kings Bay adjoining manatee sanctuaries or no-entry areas to
continue to use waterways to go from and to their property under idle
speed. They have also continually been allowed to maintain their
property. Homeowners that own property as described above under these
prior rules were not required to get a permit. Under these past rules,
they notified the Crystal River NWR office and received a no-cost
sticker to identify their watercraft. Some of these homeowners on Kings
Bay already have identification stickers. When effective, this final
rule for Kings Bay allows similar exceptions to all riparian property
homeowners (their guests, employees, and designees including
contractors and lessees) whose property adjoins a manatee sanctuary or
no-entry area so they can retain their watercraft access and conduct
property maintenance. This final rule also employs a similar no-cost
sticker and no-cost letter of authorization program that has been used
in the area for many years. The letter of authorization for contractors
and designees is a process to help and protect homeowners as well.
These stickers and/or letters are not required for those riparian
property homeowners (their guests, employees, and designees including
contractors and lessees) with Kings Bay property that does not adjoin a
manatee sanctuary or no-entry area.
(6) Comment: Several comments related to the human safety aspects
of the proposal. Some commenters expressed concern that, by closing the
summer watersports zone, recreational watercraft operators would be
forced into the narrow channel of Crystal River proper. Others
expressed concern that the current watersports zone is unsafe because
of the high number of users and the speed at which watercraft are being
operated. Some commenters suggested that a reduced watersports zone
could
[[Page 15623]]
increase safety for manatees while not forcing too much recreational
activity into the river.
Our Response: We have fully evaluated comments shared by the public
in and around Kings Bay and other concerned stakeholders in relation to
actions being considered for implementation that were identified in the
Services' June 2011 proposed rule. These concerns led us to seek and
review Florida Fish and Wildlife Conservation Commission boating
accident records in Crystal River and Kings Bay. Review of that
information revealed that, since 2000, eight boating accidents have
been reported in Kings Bay. Those accidents resulted in four injuries.
In Crystal River, 24 accidents have been reported since 1998. Those
accidents resulted in 12 injuries and 1 fatality.
As part of our evaluation of comments, the Service worked with the
U.S. Coast Guard (USCG) to evaluate the human safety aspects of the
proposed rule. In an October 7, 2011, memorandum, the USCG (and
confirmed by FWC by letter of December 8, 2011) conveyed their concern
that the proposed closure of the watersports zone is likely to result
in the displacement of high-speed watercraft activity into the Gulf of
Mexico and the connecting waters of Crystal River, with the latter
being the more likely of the two options due to the 2-hour transit time
from Kings Bay to the Gulf. Crystal River has a narrow high-speed
channel. In working with the USCG, we concluded that an increase in
traffic such as might occur with implementation of our proposed rule is
likely to result in unsafe conditions for watercraft operators by
increasing the density of boaters in a smaller area and, therefore, the
danger of boating safety infractions and marine accidents including
vessel collisions, potentially involving serious bodily injury. We
worked with the USCG to ensure that the manatee protection area
designated through this rule both prevents the take of one or more
manatees and alleviates the human safety issues raised in public
comments.
The Service examined seasonal manatee use data (i.e., numbers of
manatees seen and when they were seen) in the watersports zone on a
monthly basis from May through August for a period of 13 years (1999-
2011); 69 surveys in all (Crystal River NWR unpublished data). Manatee
use was highest during May (23.7 manatees/survey), declined in June
(16.8 manatees/survey), July (17.5 manatees/survey), and the first half
of August (11.0 manatees/survey), and increased in the latter half of
August (19.4 manatees/survey). Coincidentally, the period of least
manatee use also matched the timeframe when the least experienced
boaters would be most likely to be on the water, the public school
summer vacation period.
The Service also examined manatee area use data (i.e., numbers of
manatees seen and their locations) in various portions of the
watersports zone for this same time period. Manatees are found
throughout Kings Bay; however, some portions of Kings Bay appear to
have less frequent use than others, such as a portion of the bay north
of Buzzard Island. Manatee use during the months of May through August,
was greatest (approximately 60 percent of all observations) in the
waters east, west, and south of Buzzard Island. The waters along the
south, west, and north shorelines in that portion of Kings Bay north of
Buzzard Island combined encompassed approximately 15 percent of all
observations. The remainder of the waters north of Buzzard Island
encompassed approximately 25 percent of the manatee observations
(Crystal River NWR unpublished data).
We, therefore, considered the best available information, including
manatee area and seasonal use within the Bay, and concluded that we
could still meet the regulatory requirements of 50 CFR 17.100-108,
subpart J, while also considering the human safety aspects by modifying
the proposed rule to continue to allow some level of high speed
watercraft recreation in Kings Bay. The final rule reflects these
modifications that are within the scope of the proposed rule. Further,
as confirmed in a memorandum to the Service dated November 8, 2011,
these modifications alleviate the USCG's concerns regarding the
proposed rule. Specifically, watercraft will be able to operate at high
speed, not to exceed 25 mph, in a portion of Kings Bay generally north
of Buzzard Island from June 1 through August 15 during daylight hours
(sunrise to sunset). Slow-speed operation is required from sunset to
sunrise during this period and at all times from August 16 through May
31. Manatees in Kings Bay are known to approach anchored boats for
various and sometimes unknown reasons (e.g., to rub on the anchor line,
seek cover, etc.). Therefore, we added a protection measure in the
high-speed area through a prohibition against anchoring a vessel in the
area (except in emergency situations) while the zone is in effect,
which will avoid creating an attractive nuisance. A secondary benefit
of this manatee protection measure is that it enhances the value of the
area for safe waterborne recreation by precluding anchorage of vessels
in the high-speed area during the defined time period. Currently, this
area is a location where recreational vessels are anchored for extended
periods and this effectively limits high-speed recreation in the widest
portion of the Bay, causing recreationists to use the more constricted
portions of the watersports area.
The modifications to the rule will allow continued use of a portion
of Kings Bay for high-speed recreation and, therefore, is less likely
to result in additional recreational pressure in Crystal River during
this peak summer recreation period. The modifications also coincide
with the period of least manatee use based on available occurrence data
(Crystal River NWR 2011, unpublished data). The area north of Buzzard
Island provides the most open space available for watercraft operation
in Kings Bay and is of less value to manatees for feeding, breeding,
and sheltering (Crystal River NWR unpublished data). The waters to the
east, west, and south of Buzzard Island that will become a year-round
slow-speed zone generally have a greater density of manatee occurrences
during the summer months, are shallower, and likely contain more
submerged aquatic vegetation than the waters to the north of the
island.
The ``Speed and anchoring restrictions'' portion of the rule
provides for slow speed shoreline buffers along the south, west, and
north shorelines in the portion of Kings Bay north of Buzzard Island.
This provision allows the Service to protect the areas most frequented
by manatees and to allow a safe operating area for recreational
vessels. Based on our estimates of the location of these buffers
relative to manatee observational data, we believe the final rule
provides significant improvements in manatee protection over current
conditions. It provides the same level of manatee protection as the
June 2011 proposed rule during 47 days of May and August when the bay
is slow speed throughout. During June, July, and the first half of
August (76 days total), boats will be required to travel at slow speed
where manatees are most likely to occur east, west, and south of
Buzzard Island (approximately 60 percent of the observed locations) and
along shorelines north of Buzzard Island (approximately 15 percent of
the observed locations; Crystal River NWR unpublished data). As a
result of the changes to the rule, which prohibits mooring and
anchoring in the area north of Buzzard Island from June 1 to August 15,
we also believe there will be fewer
[[Page 15624]]
manatees (currently, this area supports approximately 5 percent of
observed locations; Crystal River NWR unpublished data) in the area
where boats have historically anchored and moored which will also
increase manatee protection in the 25 mph area. In total, we estimate
that the final rule will provide at least 84 percent of the slow-speed
benefits of the proposed rule (100 percent for 47 days and 75 percent
for 76 days) and could reduce the potential risk of manatee mortality
and injury by this fraction as the result of legal vessel operation. We
believe the final rule will prevent the take of one or more manatees
and resolves the safety concerns expressed by the public and confirmed
by the USCG and FWC. Therefore, the Service is exercising its
discretionary authority under 50 CFR subpart J to establish this
manatee protection area.
(7) Comment: One reviewer commented that slowing boat speeds will
not protect manatees.
Our Response: Slowing vessels allows increased reaction time for
both boaters and manatees to avoid each other. It also minimizes the
amount of force involved should a collision occur. Blunt force trauma
is a significant factor in the deaths of manatees and injuries in
collisions with boats.
(8) Comment: The definition of slow speed in the rule should be
modified to include the aspect of ``no wake'' and should be modified to
define a certain miles per hour.
Our Response: The Service uses definitions of watercraft operation
speeds that are consistent with those of the State of Florida. We do
not have any information to indicate that addition of ``no wake'' and a
set miles per hour limit would offer further protection than the
current definition in use.
(9) Comment: We received comments that there is not enough
information to support establishing a temporary no-entry area around
House and Jurassic Springs as well as comments that requested greater
protection for these springs in the form of sanctuaries.
Our Response: As many as 20 animals have been seen in each of these
sites on particularly cold days (J. Kleen, Crystal River NWR, 2010,
pers. com.). Based on the best available information, including manatee
use data, we believe that having the ability to establish temporary no-
entry areas in House and Jurassic Springs will prevent the take,
including harassment, of one or more manatees. These temporary no-entry
areas will not be established in these spring areas when manatees are
not present. Establishment of temporary no-entry areas will be based on
aerial survey observations of manatees using the existing sanctuary
sites, current weather information, and other sources of credible,
relevant information. Depending on the winter season, House and
Jurassic Springs may not have to be temporarily closed to entry or may
only need to be closed for a time less than the duration of the winter
season. In relation to greater protection, manatee use at these Springs
is also expected to increase with less disturbance and future growth of
the manatee population. At this time, the evidence does not support a
determination that establishment of permanent sanctuaries is necessary
to prevent the taking of one or more manatees. We will work closely
with the local, State, and Federal officials and the local community if
rule changes are considered in the future.
(10) Comment: The Service should specify specific air and water
temperatures and tidal conditions that are necessary before an early or
late creation of any temporary no-entry area could occur.
Our Response: Creation of any temporary no-entry area will be made
only after an evaluation of a number of factors. The designation of
temporary no-entry areas in advance of or after the regular manatee
winter season will be made based on presence of manatees as identified
by aerial survey observations of manatees using the existing sanctuary
sites, and current weather information including air and water
temperature and forecast duration of the cold event. Tidal conditions
are not a factor in considering these designations.
(11) Comment: Some reviewers commented that we are only
establishing the Kings Bay manatee refuge because of the threat of
court action against the Service from several environmental groups.
Our Response: In designating the Kings Bay manatee refuge, the
Service is guided by the provisions of 50 CFR 17.100-108.
(12) Comment: Some reviewers commented that, with the manatee
population increasing, there is no need for establishing a Federal
manatee refuge in Kings Bay, Citrus County, Florida.
Our Response: Both the ESA and MMPA prohibit the take, including
incidental take, of manatees without appropriate authorization, which,
to be obtained, must meet certain findings made under these Acts.
Preventing the take of manatees as a result of watercraft collisions is
a top priority in manatee recovery and management programs because of
the overall value of this area to recovery, and the risk of take from
harassment and watercraft. This action is consistent with prior Service
rulemaking. After evaluating the best available information, we have
determined that designation of this area as a manatee refuge is
warranted pursuant to 50 CFR 17.100-108.
(13) Comment: Kings Bay as a whole and the channel proper that
feeds into Kings Bay should be established as a manatee sanctuary.
Our Response: At this time, there is not substantial evidence to
support the establishment of a manatee sanctuary throughout Kings Bay
or the Crystal River channel proper that feeds into Kings Bay.
Establishment of such a designation would unnecessarily restrict
recreational opportunities within the Bay.
(14) Comment: Several reviewers commented that harassment as
defined by these more specific prohibited activities should be added to
50 CFR 17.102 and that these prohibited actions that clarify take of
manatees should apply everywhere it occurs and should be clarified in
the rule.
Our Response: With the publication of this final rule, 50 CFR part
17 will be amended as noted in the Regulation Promulgation section of
this rule. The Director may establish manatee protection areas whenever
there is substantial evidence showing such establishment is necessary
to prevent the taking of one or more manatees. Defining ``harassment''
under 50 CFR 17.102 is outside the scope of this rule. We have
substantial evidence that the prohibited behaviors specifically
identified in this rule can and have resulted in take of manatees in
Kings Bay. It is not clear that extending the prohibitions beyond Kings
Bay is warranted at this time, and in any case, goes beyond the scope
of the rule. We will work closely with the local, State, and Federal
officials and the local community if rule changes outside of Kings Bay
are considered in the future.
(15) Comment: Some reviewers expressed confusion about the proposed
prohibition against using mooring or float lines that can entangle
manatees. Comments were also received suggesting that this line
prohibition should apply everywhere the manatee occurs.
Our Response: The intent of the prohibition against the ``use of
mooring and float lines that can entangle manatees'' was to prevent one
or more manatees from being injured or killed from entanglement in such
lines that have been abandoned or are not regularly checked and could,
therefore, become an entanglement hazard. We recognize, however, that
our intent was not clearly articulated in the proposed
[[Page 15625]]
rule. Entanglements are a threat to manatees in Kings Bay. In our
attempts to clarify this proposed prohibition, we have recognized that
this threat and solutions toward this threat need additional
consideration. Implementing this provision at this time is not
practical for several reasons (e.g., uncertainty regarding
identification and availability of appropriate materials, application
for different uses, and enforceability). Our goal of the proposed
prohibition was the removal of derelict line sources and to encourage
all operators to regularly check lines that are secured in Kings Bay.
Through improved outreach, we are going to encourage all operators to
help us meet this goal. We intend to work with the community and
researchers to assess and evaluate equipment (line, connections, traps)
solutions that are feasible and evidence suggests will help reduce
manatee entanglements. Until we can accomplish that, other measures,
such as fishing line recycling programs and the State of Florida's
derelict crab pot removal program, are already in existence within
Kings Bay to provide means for reducing the number of lines discarded
in this area. Therefore, we have modified the rule to remove this
proposed prohibition.
(16) Comment: Comments expressed the opinion that the Service does
not have the resources to enforce the prohibitions and restrictions
within the Kings Bay manatee refuge. Similarly, we received comments
suggesting that enforcement should be increased in Kings Bay before
additional protections are implemented.
Our Response: Both State and Federal law enforcement agents are
authorized to enforce these regulations, and enforcement is a valuable
tool to reduce take from noncompliant activity. The watercraft speed
restrictions address the potential for accidental take associated with
currently legal activities. Increased enforcement of existing laws
would not prevent these injuries and deaths.
(17) Comment: Numerous comments stated the need to improve
education for all parties who participate in waterborne activities
within Kings Bay.
Our Response: Education and public awareness are important elements
in the ongoing efforts to protect and recover manatees. In addition,
our analysis of the best available information indicates that
establishment of manatee protection areas and their requisite
enforcement are equally important components in the comprehensive
approach toward manatee protection. We will continue to work with the
local community to increase education and public awareness of these
regulations and restrictions.
(18) Comment: Some reviewers commented that elimination of the
summer watersports zone will adversely impact the economy by reducing
property values, certain forms of recreation, and tourism. Others
commented that the proposal will support economic growth through
increased ecotourism in the summer. One commenter pointed out the
savings in costs from rescuing and caring for injured manatees.
Our Response: The net economic effect of the rule, whether positive
or negative, is expected to be minimal. There is little debate that
manatees are an economic asset to the community, but the extent to
which that value may increase in summer months is unknown. The changes
in the slow-speed requirements for safety purposes will have the
secondary effect of buffering potential adverse economic effects
through lost use. The rule will reduce the duration when certain
waterborne activities may take place by 38 percent, but will maintain
the opportunity for such recreation during the peak summer use period.
It will remove some areas where high-speed watercraft operation can
take place but improve opportunities for such recreation in other
areas. It will increase and enhance the opportunities for other forms
of waterborne recreation such as kayaking or canoeing, swimming,
diving, and wildlife observation immediately east, south, and west of
Buzzard Island. We know that the most recent annual reimbursement by
the State to rehabilitation facilities for the cost of rescue and care
for injured or distressed manatees is $1.15 million. Any incremental
reduction in manatee injuries will represent a cost savings.
(19) Comment: One reviewer commented that the manatee mortality
statistics in the rule and Environmental Assessment are inaccurate.
Our Response: The statistics have been reviewed and have been
revised in this final rule to be current and accurate at the time of
publication.
(20) Comment: One reviewer commented that the refuge establishment
will prevent dredging.
Our Response: Manatee-safe procedures are currently required for
all dredging activities in Florida where manatees are found. The rule
does not impose additional restrictions on dredging.
(21) Comment: Several comments stated that the rule should
incorporate additional protected areas both within and beyond the
refuge and noted that the Service is not closing access to the
``keyhole'' in Kings Spring, a marked corridor within the Banana Island
Sanctuary that currently allows access to swimmers and divers while the
sanctuary is in place.
Our Response: The Service does not believe that additional closures
are warranted within the manatee refuge and closures outside of the
manatee refuge are beyond the scope of this rule. The Service believes
that the rule is sufficient to prevent the take of one or more manatees
and is, therefore, compliant with our discretionary authority. We
believe swimming and diving can be allowed in the ``keyhole'' without
harassing manatees. However, should swimming, diving, or both in the
keyhole prove to be a problem, the Service has authority to close
public access without additional rulemaking, as this area is Federally-
owned and administered by the Service.
(22) Comment: Several comments suggested additional rules for in-
water behavior relative to specific approach distances, touching of
manatees, gear requirements or prohibitions, and passive observation.
Our Response: In order for the Service to implement and enforce a
restriction we must be able to demonstrate substantial evidence that
the activity results in ``take.'' As such, the rule prohibits numerous
types of contact with manatees that will result in take. However, we
have no evidence that simply touching a manatee, or approaching a
manatee within some specific proximity, or use of some specific types
of gear near a manatee will necessarily result in take. The commenter
also acknowledged that ``* * * interactions between certain manatees
that invite contact with people may not annoy, disturb, or harm
[manatees].'' Adding these prohibitions would thus exceed our authority
under subpart J and MMPA. Conversely, all of the prohibitions in the
rule can be shown to result in take and will collectively allow us to
prevent illegal take, and violations can be successfully prosecuted.
(23) Comment: Some reviewers suggested that the Service delay
implementation and create a stakeholder committee to develop a
solution.
Our Response: Prior to development of this final rule, we held four
public meetings and one public hearing. No specific alternative
solutions were submitted during these public meetings, subsequent to
these meetings, or during the public comment period, despite the
request for such information. We coordinated with Law Enforcement, FWC,
and the USCG. The Service
[[Page 15626]]
considered alternative configurations for the final rule in
coordination with the USCG and incorporated the changes that maximize
manatee protection while addressing human safety concerns that were
brought to our attention during the proposed rule comment period.
Finally, the Service, as part of our mission, supports fishing,
boating, and other outdoor recreation. In the future, if there is a
technological means or other alternative that will protect manatees to
the extent provided in the rule and allow us to lift some or all of the
prohibitions, we will modify the manatee refuge and/or its
prohibitions.
Summary of Changes and Clarifications
(1) The proposed prohibition on use of mooring and float lines at
paragraph (c)(14)(ix)(M) was removed. Entanglements are a threat to
manatees in Kings Bay. In our attempts to clarify this proposed
prohibition, we have recognized that this threat and solutions toward
this threat need additional consideration. Implementing this provision
at this time is not practical for several reasons (e.g., uncertainty
regarding identification and availability of appropriate materials,
application for different uses, and enforceability). Our goal of the
proposed prohibition was the removal of derelict line sources and to
encourage all operators to regularly check lines that are secured in
Kings Bay. Through improved outreach, we are going to encourage all
operators to help us meet this goal. We intend to work with the
community and researchers to assess and evaluate equipment (line,
connections, traps) solutions that are feasible and evidence suggests
will help reduce manatee entanglements. Until we can accomplish that,
other measures, such as fishing line recycling programs and the State
of Florida's derelict crab pot removal program, are already in
existence within Kings Bay to provide means for reducing the number of
lines discarded in this area. Therefore, we have modified the rule to
remove this proposed prohibition.
(2) The requirement at paragraph (c)(14)(ii)(A) in reference to
Three Sisters Springs was changed from ``no entry'' to prohibiting all
waterborne activities during nighttime hours. Additionally, the
timeframe was revised from specific hours to ``sunset to sunrise.'' The
reference to ``waterborne activities'' is necessary to ensure that we
are within our authorities under subpart J. This minor revision in
hours is necessary to accomplish the intent to restrict activities
during darkness when manatees cannot be seen and avoided and human
activities cannot be monitored by enforcement officials.
(3) As described in comment 6 and its response (above), we received
numerous comments concerned that implementing a portion of the June
2011 proposed rule would result in human safety issues. The Service
worked with the USCG (later confirmed by FWC) to evaluate the human
safety aspects of the proposed rule and concluded that the proposed
closure of the watersports zone is likely to result in the displacement
of high-speed watercraft activity into the Gulf of Mexico and the
connecting waters of Crystal River, with the latter being the more
likely of the two options due to the 2-hour transit time from Kings Bay
to the Gulf. Crystal River has a narrow high-speed channel, and we
concluded that an increase in traffic such as might occur with
implementation of our proposed rule is likely to result in unsafe
conditions for watercraft operators by increasing the danger of boating
safety infractions and marine accidents including vessel collisions,
potentially involving serious bodily injury.
We, therefore, reconsidered the substantial evidence showing that
such establishment is necessary to prevent the taking of one or more
manatees, including manatee area and seasonal use within the Bay, and
concluded that we could still meet the regulatory requirements of 50
CFR 17.100-108 while also considering human safety by modifying the
proposed rule to continue to allow some level of high speed watercraft
recreation in Kings Bay. The final rule reflects these modifications
that are within the scope of the proposed rule. Specifically,
watercraft will be able to operate at high speed, not to exceed 25 mph,
in a portion of Kings Bay generally north of Buzzard Island from June 1
through August 15 during daylight hours (sunrise to sunset). Slow-speed
operation is required from sunset to sunrise during this period and at
all times from August 16 through May 31. Manatees in Kings Bay are
known to approach anchored boats for various and sometimes unknown
reasons (e.g., to rub on the anchor line, seek cover, etc.). Therefore,
we added protection measures in the high speed area through a
prohibition against anchoring a vessel in the area (except in emergency
situations) while the zone is in effect, which will avoid creating an
attractive nuisance. A secondary benefit of this manatee protection
measure is that it enhances the value of the area for safe waterborne
recreation by precluding anchorage of vessels in the high-speed area
during the defined time period. Currently, this area is a location
where recreational vessels are anchored for extended periods and this
situation effectively limits high-speed recreation in the widest
portion of the Bay, causing recreationists to use the more constricted
portions of the watersports area.
The modifications to the rule will allow continued use of a portion
of Kings Bay for recreation and, therefore, are less likely to result
in additional recreational pressure in Crystal River during this peak
summer recreation period. The modifications also coincide with the
period of least manatee use based on available occurrence data (Crystal
River NWR 2011, unpublished data). The area north of Buzzard Island
provides the most open space available for watercraft operation in
Kings Bay and is of less value to manatees for feeding, breeding, and
sheltering (Crystal River NWR unpublished data). The waters to the
east, west, and south of Buzzard Island that will become a year-round
slow-speed zone generally have a greater density of manatee occurrences
during the summer months, are shallower, and likely contain more
submerged aquatic vegetation than the waters to the north of the
island. The final rule at paragraph (c)(14)(iii) contains these
changes.
The rule greatly increases manatee protection over current
conditions. The rule reduces the period of high-speed watercraft
operation from 123 to 76 days. During the 76-day period (June 1 through
August 15), it reduces the speed limit from 35 mph to 25 mph during the
day and requires slow-speed operation at night. Based on aerial survey
data (Crystal River NWR unpublished reports), this rule does not allow
watercraft to travel at high speed where they are most likely to
encounter manatees (e.g., shallow, grassy areas). High-speed operation
is confined to a timeframe and area when and where it is least likely
to impact manatees. The rule allows high-speed watercraft operation
during the peak human use period to prevent exacerbating human safety
risks in Crystal River. It increases human safety associated with
waterborne activities in portions of the manatee refuge immediately
east, south, and west of Buzzard Island, which are the more confined
and shallower areas of the State-designated watersports area (and where
manatee use is most concentrated).
As was the case with the proposed rule, this rule does not
supersede any more restrictive Federal, State, or local regulations
currently in place nor does it preclude more restrictive future actions
by these entities.
[[Page 15627]]
(4) The information standard for designating manatee protection
areas is substantial evidence. As stated in 50 CFR 17.103, ``The
Director may * * * establish manatee protection areas whenever there is
substantial evidence showing such establishment is necessary to prevent
the taking of one or more manatees.'' This is also the legal standard
for emergency designations under section 17.106. There is no indication
in the subpart J regulations that information to be considered is
limited to scientific or commercial (i.e., species trade) data. The
substantial evidence standard means that the Service can appropriately
consider any valid, reliable evidence as long as it is relevant to the
question of whether the establishment is ``necessary to prevent the
taking of one or more manatees.''
The Service made a minor technical error in our proposed rule. In
our opening summary section, we correctly stated the substantial
evidence standard and shared a summary of the substantial evidence we
used on page 36494 in our proposed rule. But, in the Public Comments
Solicited section of the proposed rule, we incorrectly cited the use of
only the best scientific and commercial data. While we certainly use
up-to-date scientific data in our evaluation as part of the evidence we
consider (for example, we would not establish a manatee protection area
where manatees are not documented), the standard by which we designate
manatee protection areas is that we have substantial evidence that
designation of the area is necessary to prevent the taking of one or
more manatee(s). We wanted to clarify this technical error in this
final rule.
Kings Bay--Assessment of Current Conditions
Similar to previous circumstances that warranted increases in the
level of protection for manatees in Kings Bay, the number of manatees
using Kings Bay more than doubled since 1998 (from 250 animals to 516
animals in December 2010, with the highest count on record of 566 in
January 2010; Kleen 2011, pers. com.); the number of residents,
visitors, and boats increased; and the amount of space in the existing
sanctuaries became insufficient to provide this number of manatees with
shelter free from harassment. In addition, the number of manatees
struck and killed by boats in Kings Bay has increased since 1999.
The manatee population in northwestern Florida grew at a rate of
4.0 percent per year through 2000, based on an assessment of adult
survival rates (Runge et al. 2004, p. 371). Consistent with this rate
of increase, the number of manatees counted in the region has
increased, as well. Aerial counts were first conducted during the
winter of 1983-1984, when 142 manatees were sighted in Citrus County;
124 of these animals were sighted in Kings Bay and Crystal River. In
January 2010, Crystal River NWR researchers counted 646 manatees in
Citrus County's coastal waters, including 566 manatees in Kings Bay.
This is the highest number of manatees ever counted in this region and
in Kings Bay (Kleen 2010, pers. com.). Aerial observations of manatees
in Kings Bay during especially cold periods include sightings of
manatees within the sanctuary areas and in smaller springs. In recent
years, dozens of manatees are seen sheltering just outside of the
sanctuary boundaries because the sanctuaries are overcrowded. Some
animals shelter in some of Kings Bay's smaller, unprotected springs,
including House Spring, Jurassic Spring, and a spring just east of the
mouth of Three Sisters Springs run referred to in this rule as Idiot's
Delight Number 2. As many as 20 animals have been seen in each of these
sites on particularly cold days (Kleen 2010, pers. com.).
The number of Citrus County residents increased by 19.8 percent (an
average annual growth rate of 2.5 percent per year), from 118,085 to
141,416, between 2000 and 2008 (U.S. Census Bureau 2010 Web site).
Concurrent with this increase in number of residents, the number of
boats registered in Citrus County increased by 36.2 percent at an
average annual growth rate of 4.0 percent per year. In 2010, there were
16,901 boats registered in Citrus County, 3,975 more than the 12,926
vessels registered there in 2000 (FDHSMV 2011 Web site). While the
number of visitor-owned watercraft that are used in Citrus County
waterways including Kings Bay is unknown, this number is likely
increasing based on county revenue trends that describe an increasing
number of visitors to the area. Revenue trends associated with
businesses that cater to visitors, including Citrus County lodging and
food service revenues and tourist tax revenues, have increased by 178
percent and 214 percent, respectively, over the past 10 years,
suggesting an increase in the number of visitors to the area (U.S.
Census Bureau 2010 Web site). Tourism surveys suggest that about half
of all visitors to the area come to Citrus County to enjoy water-based
activities that include manatee viewing, snorkeling, and diving (Gold
2008, pp. 4-5).
From 1974 through 2010, collisions with watercraft killed 60
manatees in Citrus County waterways, including 13 manatees recovered
within the boundaries of the Kings Bay manatee refuge, as established
by this rule (FWC-FWRI Manatee Mortality Database 2011 Web site). All
13 deaths occurred since 1999. In 2008, FWC recorded the highest number
(eight) of manatees ever killed by watercraft in Citrus County and
three of these carcasses were recovered in Kings Bay (FWC-FWRI Manatee
Mortality Database Web site).
While watercraft-related deaths occur throughout the year in Citrus
County, 7 of the 13 watercraft-related deaths that were recovered in
Kings Bay since 1999 took place during those times of the year when the
watersports area was in effect (May 1 through August 31). In May 2004,
observers witnessed a boat striking a manatee in the watersports area;
a carcass was recovered nearby the following day (FWC-FWRI Manatee
Mortality Database 2011 Web site). Researchers are currently working on
determining manatee scar acquisition rates for the Crystal River/Kings
Bay manatee population, but preliminary findings suggest that propeller
wounds continue to be acquired during their residency in the area (R.
Bonde, peer review 2011).
Every year, manatees are entangled in fishing line, float lines,
anchor and mooring lines, and other types of gear. In extreme cases,
entangled manatees can die when entangling gear cuts into their hide,
causing sepsis and the occasional loss of limbs. In cases when animals
are superficially entangled, entangling gear is removed and the animals
are released onsite. In more severe cases, manatees are transported to
rehabilitation facilities where they are treated for injuries and
infections associated with entanglements. There are 30 known cases of
manatee entanglements from Citrus County, including 10 from Kings Bay.
Fourteen of these cases include manatees entangled in crab pot float
lines, including four from Kings Bay. The remaining cases from Kings
Bay include four from fishing lines and two from anchor lines. County-
wide records of entanglements include 24 rescues and four deaths. More
than half of these are known to have occurred during the past 15 years
(U.S. Fish and Wildlife Service Manatee Rescue Rehabilitation and
Release Program entanglements unpubl. data). However, measures, such as
fishing line recycling programs and the State of Florida's derelict
crab pot removal program, are already in existence within Kings Bay to
provide
[[Page 15628]]
means for reducing the number of lines discarded in this area.
Manatee harassment, largely associated with wintertime manatee
viewing activities, occurs in Kings Bay; a variety of methods are being
used to help prevent and minimize harassment from occurring. The
Service, State, nongovernment organizations, and private companies
prepare and distribute outreach materials to manatee-viewing
recreationists to familiarize them with best practices to follow when
in the water with manatees. Best practices include the ``Manatee
Viewing Guidelines,'' developed by the Service and partners. Outreach
materials include, among other things, handouts, kiosks, signs, and
videos. The Crystal River NWR developed ``Manatee Manners,'' a video
that dive shops and kayak outfitters are required to show their
customers before they enter Kings Bay. These businesses take visitors
to see manatees in Kings Bay, including Crystal River NWR. Under the
National Wildlife Refuge System Improvement Act (16 U.S.C. 668dd-
668ee), commercial interests conducting business within the NWR are
required to obtain special-use permits (SUPs), which are conditioned to
ensure that the permittees and their designees do not take manatees.
Crystal River NWR also maintains a visitor center where guests are
provided with outreach materials. The Crystal River Refuge's ``Manatee
Watch'' volunteer network places volunteers in kayaks near the
sanctuaries to educate visitors and report infractions when they occur.
Federal regulations include 50 CFR 17.100-108, which provide for
enforcement of manatee protection measures, and State regulations
include provisions of the State's Florida Manatee Sanctuary Act as
codified in 68 C-22 of the Florida Administrative Code. State and
Federal officers have been cross-deputized and can enforce both State
and Federal regulations. The Service, State, and other law enforcement
agencies actively enforce harassment regulations in Citrus County and
in Kings Bay. Cited acts of harassment include trespass by manatee-
viewing individuals into manatee sanctuaries where the Service has
determined that any waterborne activity occurring within these areas
would result in take of manatees, including but not limited to take by
harassment. Indirectly, the presence of large numbers of people in the
vicinity of manatees may cause some animals to abandon the area,
another form of harassment. Outside of these areas, the public disturbs
and occasionally harasses manatees while engaged in viewing and other
waterborne activities. When observed, violators are warned or cited.
State violations include boaters traveling at speeds in excess of those
described by law within specific areas. Given variations in enforcement
practices and recordkeeping systems, these records are not used to
describe trends in harassment activity.
Summary
Based on current and historical data that document increasing
numbers of manatees, waterway users, watercraft-related manatee deaths
and injuries, and reports of manatee harassment in Kings Bay, we
conclude that the take of manatees is occurring and increasing in this
area. Sources of information include the U.S. Geological Survey, the
FWC, manatee experts, the public, and peer-reviewed literature. Future
take would occur without additional protection measures and we do not
anticipate any alternative protection measures being enacted by other
agencies in sufficient time to reduce the likelihood of take. For these
reasons and based on this substantial evidence, we believe the
establishment of an additional manatee protection area is needed to
prevent the take of manatees. The Kings Bay manatee refuge covers the
same geographical area as that defined by the November 9, 2010,
emergency rule (75 FR 68719).
To prevent the take of manatees, the Service and the State of
Florida have designated a network of manatee protection areas at sites
throughout Florida where threats to manatees have been well-documented
and where manatees are known to frequently occur. This network supports
our goal of providing areas of protected habitat throughout peninsular
Florida, adequate to satisfy the biological needs of the species. This
network is enhanced by the establishment of an additional manatee
protection area, i.e., a manatee refuge in Kings Bay, a waterbody
located in Crystal River, Citrus County, Florida.
Kings Bay Manatee Refuge
Under the manatee refuge designation, specified restrictions will
improve the Service's ability to address takings associated with
watercraft and manatee viewing activities. Restrictions on watercraft
operation will reduce the number of watercraft-related manatee deaths
and injuries occurring in Kings Bay. Harassment associated with manatee
viewing can be controlled through the establishment of no-entry areas
not to exceed specified distances around existing manatee sanctuaries,
the designation of no-entry areas at other springs when needed, and the
identification of manatee refuge-specific prohibitions.
Location
The Service designates the waters of Kings Bay as a manatee refuge.
These waters include that tract of submerged land that includes all
waters of Kings Bay, including all tributaries and adjoining
waterbodies, upstream of the confluence of Kings Bay and Crystal River,
described by a line that bears North 53[deg]00'00'' East (True) from
the northeasternmost point of an island on the southwesterly shore of
Crystal River (approximate latitude 28[deg]53'32'' North, approximate
longitude 82[deg]36'23'' West) to the southwesternmost point of a
peninsula of Magnolia Shores (approximate latitude 28[deg]53'38''
North, approximate longitude 82[deg]36'16'' West). See Map ``Kings Bay
Manatee Refuge''.
The manatee refuge encompasses seven existing Federal manatee
sanctuaries, described in 50 CFR 17.108: The Banana Island Sanctuary
(including King Spring), the Sunset Shores Sanctuary, the Magnolia
Springs Sanctuary (including Gator Hole), the Buzzard Island Sanctuary,
the Tarpon Springs Sanctuary, the Warden Key Sanctuary, and the Three
Sisters Springs Sanctuary. The existing sanctuaries are in effect from
November 15 through March 31 (referred to as the ``manatee season'').
The manatee refuge measures would be in effect in Kings Bay as
described below.
Manatee Refuge Measures
The manatee refuge measures, described in more detail below,
include:
Maintaining the seven existing manatee sanctuaries where
all waterborne activities are prohibited November 15 through March 31;
Regulating watercraft speeds throughout the manatee refuge
at all times;
Prohibiting anchorage (other than emergency anchorage) of
watercraft in the high-speed (25 mph) area from June 1 through August
15;
12 specifically prohibited activities throughout the
manatee refuge at all times;
Temporary `no-entry' areas adjacent to existing
sanctuaries and specified additional springs during the manatee season
(November 15 through March 31);
Temporary `no-entry' areas prior to or after the manatee
season during unusual cold events; and
Exceptions for adjoining property owners and their
designees.
[[Page 15629]]
Existing Manatee Sanctuaries
All seven currently existing manatee sanctuaries in Kings Bay,
where all waterborne activities are prohibited November 15 through
March 31, will remain in effect.
Watercraft Speeds and Anchorage
To prevent the take of one or more manatees killed and injured by
high-speed watercraft, operating speeds in Kings Bay are regulated
throughout the year. Watercraft operation is restricted to slow speed
throughout the manatee refuge unless otherwise marked. In some portions
of the manatee refuge, State or local regulations require watercraft to
travel at idle speed. For example, during summer holiday weekends,
local ordinances and USCG regulations can require watercraft to travel
at restricted speeds throughout Kings Bay due to human safety concerns
regarding the high volume of watercraft activity, regardless of posted
zones allowing greater speed. This rule allows watercraft to travel at
speeds up to 25 mph during daylight hours (slow speed at night) in a
portion of the manatee refuge from June 1 through August 15. The intent
of regulating watercraft speeds and slowing all watercraft down in
areas most frequented by manatees is to prevent the take of one or more
manatees in Kings Bay from compliant watercraft operation. Some
manatees in Kings Bay are known to approach anchored boats and,
therefore, anchoring boats in the high-speed (25 mph) area is
prohibited from June 1 through August 15. By prohibiting anchorage of
boats in the high-speed (25 mph) area during this time period, manatees
will not be attracted into harm's way by seeking cover around the
boats, being attracted to the discharge of bilge water, chewing on
anchor lines, etc.
Manatee Viewing and Other Waterborne Activities
To prevent the take of one or more manatees associated with manatee
viewing and other waterborne activities, we specify prohibitions that
would be in effect throughout the year. Pursuant to the ESA and MMPA,
all takings, including takings by harassment, are prohibited throughout
the year, wherever they may occur. In regard to these prohibited
activities, we consider a resting manatee to be a mostly motionless
manatee that rises to breathe from the water bottom, in the water
column, or on the water's surface. While resting, a manatee may make
minor changes in its posture and may slightly shift its position. Minor
changes in posture occur when manatees breathe or roll. Resting
manatees may also make slight movements with their flippers or tail to
compensate for draft, etc. (Hartman 1979, pp. 82-84). To prevent the
take of manatees by individuals engaged in waterborne activities while
in the water, in boats, or on-shore within the Kings Bay Manatee
Refuge, we specifically identify and prohibit the following activities:
(i) Chasing or pursuing a manatee(s).
(ii) Disturbing or touching a resting or feeding manatee(s).
(iii) Diving from the surface onto a resting or feeding manatee(s).
(iv) Cornering or surrounding or attempting to corner or surround a
manatee(s).
(v) Riding, holding, grabbing, or pinching or attempting to ride,
hold, grab, or pinch a manatee(s).
(vi) Poking, prodding, or stabbing or attempting to poke, prod, or
stab a manatee(s) with anything, including your hands and feet.
(vii) Standing on or attempting to stand on a manatee(s).
(viii) Separating a mother and calf or attempting to separate a
mother and calf.
(ix) Separating a manatee(s) from a group or attempting to separate
a manatee(s) from a group.
(x) Giving a manatee(s) anything to eat or drink or attempting to
give a manatee(s) anything to eat or drink.
(xi) Actively initiating contact with a belted and/or tagged
manatee(s) and associated gear, including any belts, harnesses,
tracking devices, or antennae.
(xii) Interfering with rescue and research activities.
The following activities are prohibited within Three Sisters
Springs from November 15 through March 31:
a. All waterborne activities in Three Sisters Springs from sunset
to sunrise.
b. Scuba diving.
c. Fishing, including but not limited to fishing by hook and line,
by cast net, and by spear.
Prohibited Anchoring in the High-Speed Area of Kings Bay
Some manatees in Kings Bay are known to approach anchored boats. To
minimize the potential for attraction (manatees seeking cover, bilge
water, etc.) into harm's way, anchorage (other than emergency
anchorage) of watercraft is prohibited in the high speed (25 mph) area
from June 1 through August 15.
Temporary No-Entry Areas (November 15 Through March 31)
Because there is insufficient space in the existing sanctuaries for
all manatees that use Kings Bay to shelter, rest, and feed, free from
harassment, we will create temporary no-entry areas outside of and
adjacent to the existing sanctuaries to ensure adequate room for
manatees wanting to access these sites when space is needed during the
manatee season (between November 15 and March 31). This rule allows for
creation of no-entry areas around one or more of the existing
sanctuaries, as appropriate. The creation and removal of the temporary
no-entry areas will be based on manatee usage data (such as aerial
survey or on-the-water observations), current weather, and other
sources of substantial information. We will also create no-entry areas
around House Spring, Jurassic Spring, and Idiot's Delight Number 2
Spring when these springs are occupied by manatees in need of shelter
free from harassment. With this rule, we have the ability to create
temporary no-entry areas around any or all sanctuaries and specified
springs for the manatee season, but we do not envision this will be
necessary in all years. Temporary no-entry areas will be created at the
distances specified in this rule to accommodate manatee biological
needs as they use Kings Bay during cold events. The temporary no-entry
areas will be posted for as long as they are necessary within the
manatee season.
Temporary No-Entry Areas (April 1 Through November 14)
To prevent the take of manatees sheltering in Kings Bay from cold
weather that occurs outside of the manatee season (November 15 through
March 31), temporary no-entry areas under this rule can be put in
effect during early onset and protracted cold weather events that occur
outside of the manatee season. Manatees that appear in Kings Bay during
cold fronts that pre-date the start of the manatee season are
especially vulnerable to harassment because none of the sanctuaries and
no-entry areas are in effect prior to November 15. Similarly, none of
these measures are in effect after March 31, during those times when
cold weather continues beyond this period of time. In April 2010, the
Service asked the public to voluntarily stay out of existing manatee
sanctuaries after the close of the manatee season due to protracted
cold weather and the continued presence of manatees at these sites.
While the public generally complied with the request, some people did
not and manatees were harassed.
By designating temporary no-entry areas prior to November 15 and
after March 31 during cold fronts when manatees are present, manatee
harassment that could occur during
[[Page 15630]]
these times can be prevented. Designations would remain in effect for
the duration of a cold front and only when there is regular manatee
use; manatee presence at warm-water sites during unseasonal cold events
typically lasts for several days or less. Temporary designations would
remain in effect for no longer than 14 consecutive days.
Exceptions for Adjoining Property Owners and Their Designees
Public and private property owners who own property that adjoins
designated no-entry areas, their guests, employees, and designees
(including but not limited to contractors and lessees) will continue to
be able to access their property by obtaining, at no charge, an
exception from the Crystal River NWR that will allow them to operate
watercraft within the adjoining no-entry area for purposes of access
and property maintenance. The Crystal River NWR will continue to
provide adjoining property owners and their designees with a no-cost
sticker or letter of authorization that identifies their watercraft as
authorized to access no-entry areas. Watercraft owned by excepted
owners will be required to be marked by stickers and operate at idle
speed while within a designated no-entry area. Designees with a letter
of authorization would be required to have a copy of the letter in
their possession and required to operate at idle speed while within a
designated no-entry area.
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget (OMB) has determined that this rule is
not a significant regulatory action. OMB bases its determination on the
following four criteria:
a. Whether the rule will have an annual economic impact of $100
million or more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of government.
b. Whether the rule will create inconsistencies with other Federal
agencies' actions.
c. Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever a Federal agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions) (5 U.S.C. 601 et
seq.). However, no regulatory flexibility analysis is required if the
head of an agency certifies that the rule would not have a significant
economic impact on a substantial number of small entities. Thus, for a
regulatory flexibility analysis to be required, impacts must exceed a
threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA
amended the Regulatory Flexibility Act to require Federal agencies to
provide a statement of the factual basis for certifying that a rule
would not have a significant economic impact on a substantial number of
small entities. This section presents a screening level analysis of the
potential effects of the designation of a manatee protection area on
small entities. We certify that this rule would not have a significant
economic impact on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An
initial/final Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required.
In order to determine whether the rule would have a significant
economic impact 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. Small entities likely affected
by the rule include entities whose businesses support high-speed
recreational boating activities and commercial fishing. However, no
current information is available on the specific number of small
entities that would potentially be affected. This rule reduces the area
and duration of high-speed activities from a previously existing
summertime water-sports area and would add travel time to boating
recreationists and commercial activities having to travel through the
additional slow-speed zones. Because the only restrictions on
recreational activity result from a reduction in time and space of the
water-sports area and added travel time and alternative sites are
available for all waterborne activities, we believe that the economic
impact on small entities resulting from changes in recreational use
patterns will not be significant. The economic impacts on small
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, we believe that any
economic impact on small commercial fishing or charter boat entities
would 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.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
a. Is not expected to have an annual effect on the economy of $100
million or more. This rule may cause some inconvenience in the form of
displacement and added travel time for recreationists and commercial
fishing and charter boat businesses because of speed and access
restrictions in this manatee refuge, but it should not translate into
any significant business reductions for the many small businesses in
Citrus County. Since the only restrictions on recreational activity
would result from displacement and added travel time and alternative
sites are available for all waterborne activities, we believe that the
economic impact on small entities resulting from changes in
recreational use patterns would not be significant. The economic
impacts on small business 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,
we believe that any economic impact on small commercial fishing or
charter boat entities would not be significant. Also, the indirect
economic impact on small businesses that may result from reduced demand
for goods and services from commercial entities is likely to be
insignificant.
b. Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. It is unlikely that there are
unforeseen changes in costs or prices for consumers stemming from this
rule. The recreational charter boat and commercial fishing industries
may be affected by lower speed limits for
[[Page 15631]]
some areas when traveling to and from fishing grounds. However, this
impact is likely to be limited.
c. Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. As
stated above, this rule may generate some level of inconvenience to
recreationists due to displacement and added travel time, but the
resulting economic impacts are believed to be minor and would not
interfere with the normal operation of businesses in the affected
county. Added travel time to traverse some areas is not expected to be
a major factor that would impact business activity.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. This rule will not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required. The
designation of manatee refuges imposes no substantial new obligations
on State or local governments.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. As such, it is not a significant regulatory action
under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. The manatee protection area is located over Federal-,
State-, or privately-owned submerged bottoms. Any property owners in
the vicinity would retain navigational access and the ability to
maintain their property.
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, on the relationship between the Federal Government and the
State, or on the distribution of power and responsibilities among the
various levels of government. We coordinated with the State of Florida
to the extent possible on the development of this rule.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule would 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 new collections of information
that require approval by the Office of Management and Budget 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. OMB has reviewed and approved the
information collection requirements associated with special use permits
and assigned OMB Control No. 1018-0102. 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 (42 USC 4321 et seq.). This final
rule does not constitute a major Federal action significantly affecting
the quality of the human environment. An environmental assessment and
Finding of No Significant Impact has been prepared and is available on-
line at http://www.regulations.gov (see ADDRESSES), or upon request
(see FOR FURTHER INFORMATION CONTACT).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 and the Department
of the Interior's manual at 512 DM 2, we have evaluated possible
effects on Federally-recognized Indian tribes and have determined that
there are no effects.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this rule is
not a significant regulatory action under Executive Order 12866, and it
would only require vessels to proceed at slow or idle speeds (with the
exception of a posted high-speed area available June 1 through August
15) or avoid no-entry areas in 530 acres of waterways in Florida, 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.
References Cited
For a list of the references cited in this rule, see Docket No.
FWS-R4-ES-2010-0079, available at http://www.regulations.gov.
Author
The primary author of this document is the U.S. Fish and Wildlife
Service, North Florida Ecological Services Office (see ADDRESSES).
Authority
The statutory 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, as amended
(16 U.S.C. 1361 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
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. 17.104 by revising paragraph (b) to read as follows:
Sec. 17.104 Prohibitions.
* * * * *
(b) Manatee refuge. It is unlawful for any person within a
particular manatee refuge to engage in any waterborne activity which
has been specifically prohibited within that refuge, or to engage in
any waterborne activity in a manner contrary to that permitted by
regulation within that area. Any take of manatees under the Acts (see
Sec. 18.3 of this chapter for a definition of ``take'' in regard to
marine mammals), including take by harassment, is prohibited wherever
it may occur.
* * * * *
0
3. Amend Sec. 17.108 by:
0
a. In paragraph (a)(3), removing the period at the end of the paragraph
and adding in its place a comma and the words ``to be known as the
Magnolia Springs Manatee Sanctuary.'';
0
b. In paragraph (a)(4), removing the period at the end of the paragraph
and
[[Page 15632]]
adding in its place a comma and the words ``to be known as the Buzzard
Island Manatee Sanctuary.'';
0
c. In paragraph (a)(5), removing the period at the end of the paragraph
and adding in its place a comma and the words ``to be known as the
Tarpon Springs Manatee Sanctuary.'';
0
d. In paragraph (a)(6), removing the period at the end of the paragraph
and adding in its place a comma and the words ``to be known as the
Warden Key Manatee Sanctuary.'';
0
e. Revising paragraph (b) to read as set forth below; and
0
f. Adding paragraph (c)(14) to read as set forth below:
Sec. 17.108 List of designated manatee protection areas.
* * * * *
(b) Exceptions. (1) Adjoining property owners, their guests,
employees, and their designees (including but not limited to
contractors and lessees) may engage in watercraft access and property
maintenance activities through manatee sanctuaries (set forth in
paragraphs (a)(1) through (a)(11) of this section) and designated ``no-
entry areas'' in the Kings Bay Manatee Refuge (set forth in paragraph
(c)(14) of this section). Use of sanctuary and no-entry area waters is
restricted to authorized individuals accessing adjoining properties,
storing watercraft, and maintaining property and waterways. Maintenance
activities include those actions necessary to maintain property and
waterways, subject to any Federal, State, and local government
permitting requirements.
(2) Authorized individuals must obtain a sticker or letter of
authorization from the U.S. Fish and Wildlife Service identifying them
as individuals authorized to enter no-entry areas that adjoin their
property. Stickers must be placed in a conspicuous location to readily
identify authorized watercraft. Individuals with a letter of
authorization must have a valid letter in their possession when
accessing no-entry areas.
(3) Authorized individuals must conduct any authorized boating
activity within these areas at idle or no-wake speeds.
(c) * * *
(14) The Kings Bay Manatee Refuge. A tract of submerged land that
includes all waters of Kings Bay, including all tributaries and
adjoining waterbodies, upstream of the confluence of Kings Bay and
Crystal River, described by a line that bears North 53[deg]00'00'' East
(True) from the northeasternmost point of an island on the
southwesterly shore of Crystal River (approximate latitude
28[deg]53'32'' North, approximate longitude 82[deg]36'23'' West) to the
southwesternmost point of a peninsula of Magnolia Shores (approximate
latitude 28[deg]53'38'' North, approximate longitude 82[deg]36'16''
West).
(i) Area covered. The Kings Bay Manatee Refuge encompasses existing
manatee protection areas as described in paragraphs (a)(1) through
(a)(7) of this section, and areas outside these sections as depicted on
the map in paragraph (c)(14)(ii) of this section.
(ii) Particular areas. The following springs fall within the
boundaries of the Kings Bay Manatee Refuge. A map showing the entire
refuge, including these springs, follows:
BILLING CODE 4310-55-P
[[Page 15633]]
[GRAPHIC] [TIFF OMITTED] TR16MR12.001
BILLING CODE 4310-55-C
(A) Three Sisters Springs. A tract of submerged land, lying in
Section 28, Township 18 South, Range 17 East, Tallahassee Meridian,
Citrus County, Florida, more particularly described as follows: For a
point of reference, commence at the northwest corner of said Section 28
in an east southeast direction to the canal that begins on the west
side of Southeast Cutler Spur Boulevard and runs west-northwest to
Kings Bay. The spring is north and east of the northern terminus of
Southeast Paradise Avenue along the northern shore of said canal. Three
Sisters Springs includes three main and numerous smaller spring vents
and a spring run that connects the vents to said canal in Crystal
River, Citrus County, Florida. This area is not the same as set forth
in paragraph (a)(7) of this section. This area is behind the sanctuary
(north from the mouth of the channel) as set forth in paragraph (a)(7)
of this section.
(1) All waterborne activities in this specific area are prohibited
from sunset to sunrise from November 15 through March 31 exclusive of
the provisions of paragraph (c)(14)(v) of this section.
(2) Scuba diving and fishing (including but not limited to fishing
by
[[Page 15634]]
hook and line, by cast net, and by spear) are also prohibited in this
specific area from November 15 through March 31 exclusive of the
provisions of paragraph (c)(14)(v) of this section.
(3) If the provisions of paragraph (c)(14)(vi) of this section are
put in effect, all waterborne activities are prohibited in this
specific area for the duration established under paragraph (c)(14)(vi)
of this section.
(B) House Spring. A tract of submerged land, lying in Section 21,
Township 18 South, Range 17 East, Tallahassee Meridian, Citrus County,
Florida, more particularly described as follows: For a point of
reference, commence at the southwest corner of said Section 21 in an
east-northeast direction to the northeasternmost corner of Hunter
Spring Run. The spring is immediately west of and adjacent to Northeast
2nd Court in Crystal River, Citrus County, Florida.
(C) Jurassic Spring. A tract of submerged land, lying in Section
21, Township 18 South, Range 17 East, Tallahassee Meridian, Citrus
County, Florida, more particularly described as follows: For a point of
reference, commence at the southwest corner of said Section 21 in an
east northeast direction to the eastern shore of Hunter Spring Run. The
spring is immediately west of the western terminus of Bayshore Drive in
Crystal River, Citrus County, Florida.
(D) Idiot's Delight Number 2 Spring. A tract of submerged land,
lying in Section 28, Township 18 South, Range 17 East, Tallahassee
Meridian, Citrus County, Florida, more particularly described as
follows: For a point of reference, commence at the northwest corner of
said Section 28 in an east southeast direction to the canal that begins
on the west side of Southeast Cutler Spur Boulevard and runs west-
northwest to Kings Bay. The spring is north and east of the northern
terminus of Southeast Paradise Avenue along the northern shore of said
canal just east of the southern terminus of the Three Sisters Springs
run in Crystal River, Citrus County, Florida.
(iii) Speed and anchoring restrictions. (A) Throughout the entire
year, watercraft speeds are restricted to slow speed throughout the
manatee refuge with the following exceptions:
(1) A posted area generally north of Buzzard Island, exclusive of
shoreline slow-speed buffer zones, where watercraft may travel at
speeds up to 25 miles per hour during daylight hours (sunrise to
sunset) from June 1 through August 15;
(2) Those areas where access is precluded (manatee sanctuaries, no-
entry areas); or
(3) Areas where more restrictive speed restrictions are in effect.
(B) From June 1 through August 15, anchorage (other than emergency
anchorage) of watercraft is prohibited in the posted high speed (25
miles per hour) area around Buzzard Island referenced in paragraph
(c)(14)(iii)(A) of this section.
(iv) Time and area prohibitions. When the provisions of paragraphs
(c)(14)(v) or (vi) of this section are in effect (November 15 through
March 31 and April 1 through November 14, respectively), all waterborne
activities, including swimming, diving (including skin and scuba
diving), snorkeling, water skiing, surfing, fishing (including with
hook and line, by cast net, or spear), and the use of water vehicles
(including but not limited to boats powered by engine, wind, or other
means; ships powered by engine, wind, or other means; barges,
surfboards, personal watercraft, water skis, and any other devices or
mechanisms capable of locomotion on, across, or underneath the surface
of the water) are prohibited in areas that are adjacent to and within
specified distances from the existing manatee sanctuaries located in
Kings Bay (defined in paragraphs (a)(1) through (a)(7) of this section)
and the springs defined in paragraph (c)(14)(ii) of this section: Three
Sisters Springs, House Spring, Jurassic Spring, and Idiot's Delight
Number 2 Spring.
(v) Expanded temporary no-entry area (November 15 through March
31). When manatees exceed the capacity of an existing manatee sanctuary
or shift usage around an existing manatee sanctuary or shift usage to
Three Sisters Springs, House Spring, Jurassic Spring, and Idiot's
Delight Number 2 Spring, due to water or weather or other conditions,
we will designate ``no-entry'' areas from November 15 through March 31
as appropriate and necessary around any of these sites. The
determination to designate and subsequently remove no-entry areas
around existing manatee sanctuaries and Three Sisters Springs, House
Spring, Jurassic Spring, and Idiot's Delight Number 2 Spring within the
Kings Bay Manatee Refuge will be based on aerial survey observations of
manatees using the existing sanctuary sites, current weather
information, and other sources of credible, relevant information. We
will designate no-entry areas within Kings Bay Manatee Refuge and
outside of existing sanctuaries as follows:
(A) For the sanctuaries set forth in paragraphs (a)(1) through
(a)(6) of this section, to a distance not to exceed 100 feet from the
existing sanctuary boundary.
(B) For the Three Sisters Springs Sanctuary, to a distance not to
exceed 400 feet from the existing boundary. We do not intend to
completely mark off the manmade channel. Expansions could occur
directly around the existing sanctuary and north into the area locally
known as Three Sisters Springs.
(C) For House Spring and Jurassic Spring, an area that does not
exceed 100 feet from the associated spring vents.
(D) For Idiot's Delight Number 2 Spring, an area that does not
exceed 25 feet from the associated spring vent. Any temporary
designation will be configured to avoid the manmade channel in the
canal and will not block access into Three Sisters Springs.
(vi) Temporary no-entry areas (April 1 through November 14).
Temporary no-entry area designations may be made in the existing
manatee sanctuaries located in Kings Bay defined in paragraphs (a)(1)
through (a)(7) and paragraphs (c)(14)(v)(A) through (D) of this section
prior to November 15 and after March 31 during cold fronts when
manatees are present. Designations will remain in effect for the
duration of a cold front and only when there is regular manatee use;
temporary no-entry area designations will remain in effect for no
longer than 14 consecutive days.
(vii) Posting of temporary no-entry areas designated in accordance
with paragraph (c)(14)(v) or (vi) of this section. Additional temporary
protection areas will be posted to distances as described in paragraph
(c)(14)(v) of this section and identified by the following devices:
buoys, float lines, signs, advisories from onsite Service employees and
their designees, or other methods.
(viii) Notifications of temporary no-entry areas designated in
accordance with paragraph (c)(14)(v) or (vi) of this section. When we
determine that the provisions of paragraph (c)(14)(v) or (vi) of this
section are appropriate, the temporary protection areas will be
designated and posted to distances as described in paragraph (c)(14)(v)
of this section. No-entry area designations will occur immediately. We
will advise the public of designations through public notice(s)
announcing and describing the measures in a local newspaper and other
media, including but not limited to, local television and radio
broadcasts, Web sites and other news outlets, as soon as time permits.
Onsite Service employees and their designees, when
[[Page 15635]]
present, may also inform waterway users of designations.
(ix) Prohibited activities (year-round). We specifically identify
and prohibit the activities set forth in this paragraph to prevent the
take of one or more manatees by individuals engaged in waterborne
activities while in the water, in boats, or on-shore within the Kings
Bay Manatee Refuge. In regard to these prohibited activities, we
consider a resting manatee to be a mostly motionless manatee that rises
to breathe from the water bottom, in the water column, or on the
water's surface. While resting, a manatee may make minor changes in its
posture and may slightly shift its position. Minor changes in posture
occur when resting manatees breathe or roll. Resting manatees may also
make slight movements with their flippers or tail to compensate for
drift, etc. Prohibited activities include:
(A) Chasing or pursuing manatee(s).
(B) Disturbing or touching a resting or feeding manatee(s).
(C) Diving from the surface on to a resting or feeding manatee(s).
(D) Cornering or surrounding or attempting to corner or surround a
manatee(s).
(E) Riding, holding, grabbing, or pinching or attempting to ride,
hold, grab, or pinch a manatee(s).
(F) Poking, prodding, or stabbing or attempting to poke, prod, or
stab a manatee(s) with anything, including your hands and feet.
(G) Standing on or attempting to stand on manatee(s).
(H) Separating a mother and calf or attempting to separate a mother
and calf.
(I) Separating manatee(s) from a group or attempting to separate
manatee(s) from a group.
(J) Giving manatee(s) anything to eat or drink or attempting to
give manatee(s) anything to eat or drink.
(K) Actively initiating contact with belted or tagged manatee(s)
and associated gear, including any belts, harnesses, tracking devices,
or antennae.
(L) Interfering with rescue and research activities.
Dated: March 1, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-6055 Filed 3-15-12; 8:45 am]
BILLING CODE 4310-55-P