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Proposed Rule

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

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Information about this document as published in the Federal Register.

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Fish and Wildlife Service, Interior.


Proposed rule; notice of public hearing and reopening of public comment period.


We, the Fish and Wildlife Service (Service), provide notice that the public comment period for the proposed rule to establish the Pine Island-Estero Bay Manatee Refuge in Lee County, Florida, is reopened to allow all interested parties to submit written comments on the proposed rule. We are reopening the public comment period to accommodate those individuals and communities that are continuing to recover from the effects of both Hurricane Charley and Hurricane Frances. Comments previously submitted during the initial comment period need not be resubmitted as they will be incorporated into the public record and will be fully considered in the final determination on the proposal.


The original comment period closed on October 5, 2004. The comment period is hereby reopened until February 2, 2005. Comments from all interested parties must be received by the closing date. Any comments received after the closing date may not be considered in the final decision on this proposal. Furthermore, the public hearing that was originally scheduled for Wednesday, September 8, 2004, has been rescheduled for Wednesday, January 12, 2005, from 6:30 p.m. to 9:30 p.m. in Fort Myers, Florida. See additional information on the public comment process in the SUPPLEMENTARY INFORMATION section.


A formal public hearing will be held on Wednesday, January 12, 2005, from 6:30 p.m. to 9:30 p.m. at the Harborside Convention Hall, 1375 Monroe Street, Fort Myers, Florida.

If you wish to comment, you may submit your comments by any one of several methods:

1. You may submit written comments and information by mail to the Field Supervisor, South Florida Field Office, U.S. Fish and Wildlife Service, Attn: Proposed Manatee Refuge, 1339 20th Street, Vero Beach, Florida 32960.Start Printed Page 70413

2. You may hand-deliver written comments to our South Florida Field Office, at the above address, or fax your comments to (772) 562-4288.

3. You may send comments by electronic mail (e-mail) to For directions on how to submit electronic comment files, see the “Public Comments Solicited” section.

We request that you identify whether you are commenting on the proposed rule or draft environmental assessment. Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours from 8 a.m. to 4:30 p.m. at the above address.

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Jay Slack or Kalani Cairns (see ADDRESSES section), telephone (772) 562-3909; or visit our Web site at

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Public Comments Solicited

We solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

1. The reasons why this area, particularly the waters known as Long Cut and Short Cut as well as any shallow water embayments within the proposed area, should or should not be designated as manatee refuges, including data in support of these reasons;

2. Current or planned activities in the subject areas and their possible effects on manatees;

3. Any foreseeable economic or other impacts resulting from the proposed designations;

4. Potential adverse effects to the manatee associated with designating manatee protection areas for the species; and

5. Any actions that could be considered in lieu of, or in conjunction with, the proposed designations that would provide comparable or improved manatee protection.

We request that you identify whether you are commenting on the proposed rule or draft environmental assessment. Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours from 8 a.m. to 4:30 p.m. at the above address. You may obtain copies of the draft environmental assessment from the above address or by calling (772) 562-3909 or from our Web site at

Comments submitted electronically should be embedded in the body of the e-mail message itself or attached as a text-file (ASCII) and should not use special characters and encryption. Please also include “Attn: RIN 1018-AT65,” your full name, and return address in your e-mail message. Comments submitted to will receive an automated response confirming receipt of your message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our South Florida Field Office (see ADDRESSES section).

Our practice is to make all comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold also from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Our final determination on the proposed rule will take into consideration comments and any additional information received by the date specified above. Previous comments and information submitted during the original comment period need not be resubmitted. The comment period is reopened until February 2, 2005.


Manatees are a federally protected under both the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA). Currently, collisions with watercraft probably constitute the greatest human-caused threat to the species. Historically, these collisions are responsible for about 25 percent of all manatee deaths and about 80 percent of all human-caused mortality in manatees.

In November 2002, a judge in Florida's 20th Judicial Circuit Court ruled that five State-designated manatee protection zones were invalid because the rule for four regulated areas did not meet the State standard for frequency of sightings and unduly interfered with the rights of voters. Since January 2004, the Florida Fish and Wildlife Conservation Commission have recovered four manatee carcasses in the affected areas. Subsequent necropsies reveal these animals died of wounds suffered from a boat collision. There have been at least 18 boat-related manatee deaths in these five areas since 1999.

For these reasons, we believe that there is imminent danger of take of one or more manatees in these areas and the designation of a manatee refuge is necessary to prevent such taking. Manatees utilize these areas, there is a history of take at these sites, future take is imminent, protection measures are insufficient, and we do not anticipate any alternative protection measures being enacted by State or local government in sufficient time to reduce the likelihood of take occurring.

On April 7, 2004 we published an emergency designation of this area. This designation expired on August 5, 2004. The second emergency designation will be in effect until December 4, 2004. At that time, we plan to publish a third emergency designation in order to have adequate time to complete the normal rulemaking process (currently underway). Due to recent hurricanes in the area of Lee County, we are reopening the public comment period to allow all interested parties to provide comments.

Federal authority to establish protection areas for the Florida manatee is provided by the ESA and the MMPA and is codified in 50 CFR, part 17, subpart J. We have discretion, by regulation, to establish manatee protection areas whenever there is substantial evidence showing such establishment is necessary to prevent the taking of one or more manatees.


The primary author of this document is Kalani Cairns (see ADDRESSES section).


The authority to establish manatee protection areas is provided by the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407), as amended.

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Dated: November 4, 2004.

Cynthia K. Dohner,

Acting Regional Director.

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[FR Doc. 04-26709 Filed 12-3-04; 8:45 am]