[Federal Register Volume 63, Number 190 (Thursday, October 1, 1998)]
[Rules and Regulations]
[Pages 52603-52609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26340]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD 13-98-023]
RIN 2115-AE84
Regulated Navigation Area, Strait of Juan de Fuca and Adjacent
Coastal Waters of Washington; Makah Whale Hunting
AGENCY: Coast Guard, DOT.
ACTION: Interim rule; request for comments.
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SUMMARY: The Coast Guard, after consultation with the Department of
Justice, Department of Interior and the Department of Commerce, is
establishing a permanent Regulated Navigation Area (RNA) along the
northwest Washington coast and in a portion of the entrance of the
Strait of Juan de Fuca. The RNA will reduce the danger to life and
property in the vicinity of Makah whale hunt activities. Within the
RNA, a Moving Exclusionary Zone around a Makah whale hunt vessel will
be in effect during actual whale hunt operations.
DATES: The interim rule becomes effective upon publication in the
Federal Register. Comments regarding this rule must be received by
March 1, 1999.
ADDRESSES: You may mail comments to: Thirteenth Coast Guard District
(m), (CGD 13-98-023), 915 Second Avenue, Seattle, WA 98174, or deliver
them to room 3506 at the same address between 8 a.m. and 4 p.m., Monday
through Friday, except Federal holidays. The telephone number is (206)
220-7210.
The Thirteenth Coast Guard District Marine Safety Division
maintains the public docket for this rulemaking. Comments and documents
as indicated in this preamble will become part of this docket and will
be available for inspection or copying at room 3506, Thirteenth Coast
Guard District Offices, between 8 a.m. and 4 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Jim Peschel (206) 220-7210.
SUPPLEMENTARY INFORMATION:
Regulatory Information
Migrating gray whales are expected in the Regulated Navigation Area
(RNA) after October 1, 1998. The Makah tribe's whaling plan indicates
they may begin hunting these whales in October 1998. There has been
substantial publicity and debate concerning the hunt. An early
effective date for this rule will help
[[Page 52604]]
ensure safety of persons and property at sea should whale hunting
operations commerce during October. For these reasons, the Coast Guard
finds good cause, under 5 U.S.C. 553(d)(3), that this rule should be
made effective in less than 30 days after publication.
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
persons submitting comments should include their names and addresses,
identify this rulemaking (CGD 13-98-023) and the specific section of
this document to which each comment applies, and give the reason for
each comment. Please submit all comments and attachments in an unbound
format, no larger than 8\1/2\ by 11 inches, suitable for copying and
electronic filing. Persons wanting acknowledgement of receipt of
comments should enclose a stamped, self-addressed postcard or envelope.
The Coast Guard is accepting comments on this interim rule until
March 1, 1999. The Coast Guard will consider all comments received
during the comment period and may change this interim rule in view of
the comments. Changes may be made to this rule during the comment
period if warranted by circumstances. The Coast Guard plans to issue a
final rule after observing hunt operations.
The Coast Guard has not scheduled a public hearing at this time.
Persons may request a public hearing by writing to the Thirteenth Coast
Guard District at the address under ADDRESSES. The request should
include the reasons why a hearing would be beneficial to this
rulemaking. If it determines that an opportunity for oral presentations
will aid this rulemaking, the Coast Guard will schedule a public
hearing at a time and place announced in a separate notice published in
the Federal Register.
Regulatory History
On July 22, 1998, the Coast Guard published a notice of proposed
rulemaking (NPRM) entitled ``Regulated Navigation Area; Strait of Juan
de Fuca and Adjacent Coastal Waters of Washington; Makah Whale
Hunting'' in the Federal Register (63 FR 39256) The Coast Guard
received 243 letters regarding the proposed rule during a 45 day
comment period. No public hearing was held.
Background and Purpose
The Makah Tribe has a federally recognized treaty right to hunt
whales and has received permission from the International Whaling
Commission to kill up to five gray whales annually in the Makah's usual
and accustomed fishing area off the northwest coast of Washington and
in the entrance of the Strait of Juan de Fuca. The hunts will likely be
accomplished using a harpoon and a .50 caliber rifle, fired from a
small boat. This rule will reduce the dangers to persons and vessels in
the vicinity of whale hunts. The uncertain reactions of a pursued or
wounded whale and the inherent dangers in firing a hunting rifle from a
pitching and rolling small boat could endanger life and property if
persons and vessels are not excluded from the immediate vicinity of a
hunt.
Discussion of Comments and Changes
The Coast Guard received a total of 243 documents containing
comments to the proposed rule. The documents included letters from 12
organizations, 1 federal agency, the Makah tribe, and 5 petitions with
multiple signatures. Responses to these comments and changes made in
the proposed rule are discussed in the following paragraphs.
The most frequent comment was that the RNA violated first amendment
rights. Generally, these comments raised the concern that the 500 yard
Moving Exclusionary Zone distance prevents appropriate documentation
and recording of an event that is of significant public interest. One
comment said the regulation would prevent effective protests. Another
proposed that licenses be issued to the media. The Coast Guard
recognizes that a significant public interest exists in recording and
documenting this event by the media, and will accommodate this request
consistent with appropriate safety concerns. The Coast Guard intends to
allow a single press pool vessel within the Moving Exclusionary Zone
under certain restrictions spelled out in the interim rule. Requiring
other members of the public, including potential protesters, to remain
500 years away from the hunt is a reasonable, content neutral
restriction in light of the serious safety concerns presented by a
whale hunt. The carefully tailored interim rule and the allowance for a
press pool vessel within the Moving Exclusionary Zone balances
significant public safety concerns, tribal treaty rights, and first
amendment rights.
Numerous comments opposed any whaling. A petition with several
signatures requested that the Coast Guard stay neutral and only issue
warnings and guidelines. The Coast Guard has not been involved in the
decisions leading up to authorization of this hunt, but has been
informed by the Department of Interior and Department of Justice that
physical interference with the Makah whale hunt is inconsistent with
federal law. The Coast Guard is very concerned about public safety
aspects of the Makah whale hunt and, through implementation of this
rule, is taking some carefully tailored precautions without
unconstitutionally infringing on public activities.
Numerous comments opposed the use of any nontraditional weapons by
the Makah, particularly the .50 caliber weapons. Comments also stated
the Coast Guard should force the hunt further out to sea. Numerous
comments disagreed with the U.S. Government's position that the Makah
have International Whaling Commission permission to whale. Some
comments also indicated that the hunt is inconsistent with
international law and compromises the U.S. position on international
whaling. Several comments expressed that the hunt would not promote the
Tribe's well being, that the hunt would lead to commercial whaling on a
world-wide basis, and that whale hunting violates the Marine Mammal
Protection Act. One comment stated that the RNA could result in killing
``JJ the whale.'' These comments involve matters outside the scope of
this rule and are primarily the concern of other federal and
international bodies. The Coast Guard is working with other agencies to
ensure its efforts are consistent with federal law.
Some comments opposed the RNA because similar exclusion zones are
not established for other hunting activities, including whaling by
Native Americans in Alaska. This RNA involves the largest species to be
hunted in the nation. The Makah's intended use of .50 caliber weapons,
the unpredictable actions of a whale once struck, and the unforgiving
nature of a cold ocean environment call for the carefully tailored
safety measures in this interim rule. Other federal agencies have
enacted similar zones around dangerous activities (e.g. the U.S. Forest
Service for timber harvests).
Many comments noted that ricochets and stray rifle fire could
travel well beyond the proposed 500 yards. Some of these comments
suggested that the Moving Exclusionary Zone was too small. One comment
said the hunt would jeopardize the safety of small vessels because of
the presence of wounded whales throughout the area. The Coast Guard
agrees that dangers exist within the 500 yard zone--and beyond--and
urges mariners to maintain a distance well beyond 500 yards during
whaling operations as an additional safety measure. A .50 caliber rifle
could send a bullet beyond 7000
[[Page 52605]]
years with the proper trajectory and environmental conditions. The
Makah have indicated that they intend to aim their rifle at a downward
angle when shooting at a whale. The closer a vessel is to the weapons
and whale, the greater the treat to safety of those aboard. The Coast
Guard will review its interim decision to maintain a 500 year Moving
Exclusionary Zone after evaluating it during actual whale hunts. The
zone may be expanded or contracted in the final rule based on lessons
learned.
Some comments raised concerns that the proposed SECURITE broadcasts
would not give vessels adequate notice of the Moving Exclusionary Zone.
The Moving Exclusionary Zone is activated when a Makah whaling vessel
displays the international numeral pennant five (5) flag. Additionally,
the rule has been adjusted to require that the Makah whalers provide a
Channel 16 VHF-FM SECURITE notice one hour prior to whale hunt
operations and every half hour following that until completion of the
hunt. In addition, all vessels transiting the RNA are urged to keep an
operating marine radio tuned to Channel 16 VHF-FM.
Numerous comments requested a public hearing, and others requested
that the comment period be extended. The Coast Guard is proceeding with
an interim rule, and comments are invited until March 1, 1999 for
consideration prior to issuance of a final rule. The Coast Guard may
hold a public hearing, if appropriate, prior to adoption of a permanent
rule. Based on all the comments received to date, there has been an
adequate forum and sufficient time for the public to express its
concerns.
Several comments have been received opposing the proposed rule
because a portion of the RNA lies within the Olympic Coast National
Marine Sanctuary (Sanctuary). The administrative agency responsible for
the Sanctuary is the Department of Commerce/National Oceanic and
Atmospheric Administration (NOAA). The Coast Guard has been in frequent
contact with NOAA on this matter, including consultations regarding the
Sanctuary. NOAA requested that the RNA be expanded to include a greater
portion of the Sanctuary, but the Coast Guard is declining to do so at
this time.
Some comments disputed the Coast Guard's statement that a wounded
whale presents a danger to safety. The Coast Guard disagrees based on
information received from NOAA and historical data included in the
public file. This information suggests that a large, strong, wounded
whale may thrash about and that this could present a significant hazard
to vessels and people. Violent encounters with wounded whales are quite
possible and this presents a potentially lethal danger to humans.
Some comments stated that there was no evidence supporting the
finding that physical interference with the hunt is inconsistent with
federal law. Another comment asks that the proposed rule acknowledge
that it was being adopted pursuant to the U.S. Government's obligation
to prevent third parties from interfering with the Makah's exercise of
whaling rights under the Neah Bay Treaty. The Department of the
Interior (DOI) is the agency tasked with determination of tribal treaty
rights. In DOI's view, the Makah Tribe's right to engage in the harvest
of whales is protected by federal law, and the federal government has
legal authority to protect the exercise of that right. The central
purpose of this regulation, however, is to enhance safety at sea.
A comment requested that the permanent rule include a map of the
regulated area. This is an illustration of the RNA:
BILLING CODE 4910-15-M
[[Page 52606]]
[GRAPHIC] [TIFF OMITTED] TR01OC98.004
BILLING CODE 4910-15-C
[[Page 52607]]
Some comments questioned the extension of the Moving Exclusionary
Zone to the seabed. A reason for including the subsurface environment
in the zone is that bullets and wounded whales create safety hazards
both upon and below the surface of the water. Additionally, subsurface
traffic within the Moving Exclusionary Zone poses a potential for
collision with surface vessels maneuvering various courses to track and
hunt whales. Finally, in the event of any problems under the surface of
the water, subsurface search and rescue assets are almost non-existent
in the RNA locale.
Some comments requested clarification regarding the size of the
Moving Exclusionary Zone when more than one Makah vessel was present
for a hunt. The Makah whaling plan calls for use of a canoe working
with a motorized vessel. Under new language in the interim rule, only
one Moving Exclusionary Zone may exist within the RNA at any one time.
In other words, if a Makah canoe and a Makah motorized vessel are
working together during a whale hunt, only one of these vessels may fly
international numeral pennant five (5); other vessels must maintain a
distance of 500 or more yards from the vessel flying this pennant.
Some comments objected to the continuation of the Moving
Exclusionary Zone after the whale is killed. The Coast Guard has little
information regarding the hazards of towing a whale that may or may not
be dead, but predicts that the initial whale towing efforts by the
Makah will likely involve non-routine hazards. The Coast Guard will
assess this matter during the initial hunts and will reconsider the
duration of the Moving Exclusionary Zone prior to issuing a final rule.
Some comments asked that the RNA be extended out to three miles, or
beyond, even if it overlaps the traffic separation scheme because a
wounded whale might flee into this area. The Coast Guard's authority
for establishing an RNA ends at three miles under current law. The
interim rule does not extend the RNA into the traffic scheme because of
countervailing safety concerns raised by interruption of charted
international maritime traffic routes. A wounded whale could flee into
areas outside the jurisdiction of any possible RNA. To maintain a 360-
degree Moving Exclusionary Zone the Makah hunt vessel would have to
stay at least 500 yards inside the boundary of the RNA.
Comments were received which asked that the RNA be extended
southward to the full breadth of the Makah Tribe's usual and accustomed
fishing area at 48 deg.02'15''N. Based on the whaling plan of the Makah
Tribe and the location of Coast Guard assets, the RNA will actually
cover a smaller area than originally proposed in the NPRM. Because the
Makah have indicated that whale strikes will commence west of line
drawn between Tatoosh Island and Bonilla Point, the interim rule moves
the RNA line further west to 124 deg.34'W. Because the Coast Guard's
primary rescue and law enforcement assets for this operation are
located at Station Neah Bay, the RNA's southern border is being moved
north to a line drawn west from the Point of Arches (at 48 deg.15'N).
Several comments objected to the taxpayer expense involved in
implementing this rule. Some suggested that the costs associated with
enforcement of the RNA be borne by the Makah Tribe, not with federal
funds. RNA's, safety zones and limited access areas nationwide are
enforced using the Coast Guard's operating expense account. For
example, a city fire works display often requires a safety zone around
it and federal funds are expended in implementing and enforcing such
zones. Moreover, the creation of an RNA does not require that the Coast
Guard be on scene for the rule to be in effect; the Coast Guard has the
discretion to place units on scene with or without a rule.
Comments were received which requested that the burden of safety be
shifted to those choosing to shoot the rifle. Unsafe use of a rifle at
sea may give rise to criminal or civil law remedies; the time, place,
and manner of the whale hunt is being monitored by other agencies.
One comment indicated that the RNA was blatantly racist because
only tribal members are allowed to hunt whales. The tribal treaty
whaling rights of the Makah permit whale hunting by members of the
tribe only.
A comment stated that the proposed rule violates the constitutional
prohibition on bills of attainder. This is not the case; violations of
this rule can result in legal procedures and penalties well accepted as
constitutional.
Comments raised a concern that the RNA conflicted with NOAA
``requirements'' that the hunt not extend east of the Tatoosh-Bonilla
line. The Tribe's whaling plan indicates an intent to hunt whales west
of the Tatoosh-Bonilla line. The interim rule has moved the RNA
boundary within the Strait of Juan de Fuca westward. However, because a
wounded whale may travel east once struck, a portion of the RNA still
extends east of the Tatoosh-Bonilla line.
Some comments stated that if the Coast Guard was trying to protect
bystanders from wounded or pursued whales, the Moving Exclusionary Zone
would have been centered around the whale, not the Makah whale hunt
vessel. Again, the Coast Guard recommends that mariners keep a distance
far greater than 500 yards from whaling activities. Due to an inability
to adequately mark a struck whale, the location of a Makah whale hunt
vessel is a better Moving Exclusionary Zone indicator. The Makah's
whale hunt plan indicates that the hunt vessels will be maneuvering in
close proximity to wounded or pursued whales.
Comments suggested that the Moving Exclusionary Zone be limited to
a cone emanating from the bow of the hunting canoe because the Makah
would only be firing forward off the bow of the canoe. This is an
incorrect assumption. The rifle may be pointed in a direction other
than forward. Additionally, the canoe is highly maneuverable and may
turn faster than vessels in the cone could adjust. Therefore, a circle
around the whale hunt vessel is the preferred method for enhancing
safety.
Some comments stated that the Government could not prohibit public
use of the waterways due to a presumption of danger. Ample statutory
authority to implement this rule exists under 33 U.S.C. 1231, 33 CFR
Part 165 and other federal law.
Comments expressed a concern that the Moving Exclusionary Zone was
not content neutral because Makah tribal members who support the hunt
could enter the zone while protestors could not. The Makah Tribe will
decide who is involved with the hunt. This is a content neutral rule
based on safety, not on the views of the participants.
One comment expressed concern that the Moving Exclusionary Zone
could easily overtake smaller, slower craft. Small slow craft are on
notice by publication of this rule that they need to maintain
heightened vigilance during whaling seasons. If a small craft is
overtaken by whaling activities, Federal authorities enforcing the RNA
will take appropriate action based on the circumstances involved on a
case by case basis in determining what, if any, enforcement actions are
appropriate.
Some comments objected to the proposed RNA because it gave the
Makah the exclusive right to decide who can enter the Moving
Exclusionary Zone and that this was an unlawful delegation of the Coast
Guard's law enforcement authority. While the Makah may have several
vessels participating in the whale hunt operations within the Moving
Exclusionary Zone, the Coast
[[Page 52608]]
Guard makes all other determinations regarding presence of vessels in
the Moving Exclusionary Zone. Under the interim rule, any vessel not
actually involved in whale hunt operations is required to have Coast
Guard authorization prior to entering the Moving Exclusionary Zone.
Some comments supported the RNA as drafted.
Discussion of Interim Rule
The interim rule establishes an RNA. The RNA will extend out three
nautical miles from shore along the Washington Coast from Point of
Arches, then north to Cape Flattery, and then east to 124 deg.34' west
longitude. The RNA will extend from shore to the traffic separation
scheme where the traffic separation scheme lies closer than three
nautical miles from shore. The total area covered by the interim rule
is smaller than the area described in the NPRM, and the area of the RNA
located within the Olympic National Marine Sanctuary (Sanctuary) has
been reduced. The regulation will not affect normal transit or
navigation in the RNA except during, and in the immediate vicinity of,
a hunt. Within the RNA, an MEZ will surround one Makah whale hunt
vessel engaged in whale hunting. Except for Makah whaling vessels, a
media pool vessel, and vessels with Coast Guard authority to navigate
within the Moving Exclusionary Zone, vessels operating in the RNA
during a Makah whale hunt may not enter, and must avoid being overtaken
by, the Moving Exclusionary Zone. The interim rule imposes no other
restrictions on navigation.
The RNA is being implemented in order to reduce dangers to nearby
vessels and persons during Makah whale hunting operations by minimizing
the risks from the uncertain movements of a pursued, wounded, or towed
whale and from the dangers of high powered rifle fire.
For the duration of each hunt, vessels and persons will be excluded
from the column of water from the surface to the seabed within a radius
of 500 yards centered on a Makah whale hunt vessel. A single media pool
vessel will be allowed to operate within the Moving Exclusionary Zone.
All expenses, liabilities and risks associated with operation of the
media pool vessel lie with members of the pool and the pool vessel
owners and operators. Should more than one media pool notification be
received by Coast Guard Public Affairs, an attempt to coordinate the
requests will be made.
The activation of the Moving Exclusionary Zone will be signaled by
the flying of the international numeral pennant five (5) from a Makah
whale hunt vessel. Only one Makah vessel actually engaged in pursuing,
harpooning, shooting, securing, or towing whales is authorized to fly
international numeral pennant five (5) within the RNA at any one time.
In order for an Moving Exclusionary Zone to take effect, the Makah
Tribe must notify mariners regarding the activation of the Moving
Exclusionary Zone by means of a SECURITE broadcast made at half-hour
intervals on channel 16 VHF-FM beginning at least one hour before each
hunt. The Moving Exclusionary Zone is only active while whaling
operations are ongoing and the international numeral pennant five (5)
is flown.
Vessels not actually involved in whale hunt operations are required
to have Coast Guard authorization prior to entering the Moving
Exclusionary Zone.
Regulatory Evaluation
Although some public comments stated that this action constitutes a
significant regulatory action, the Coast Guard disagrees based on
controlling law, the minor portion of the navigable waters affected,
and the brief time actual whale hunt operations involve. This interim
rule is not a significant regulatory action under section 3(f) of
Executive Order 12866 and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Order. It has not been
reviewed by the Office of Management and Budget under that Order. It is
not significant under the regulatory policies and procedures of the
Department Transportation (DOT) (44 FR 11040; February 26, 1979).
Because of the limited number of whales that can be taken annually and
the small size of the Moving Exclusionary Zone, the Coast Guard expects
the economic impact of this interim rule to be so minimal that a full
Regulatory Evaluation under paragraph 10e of the regulatory policies
and procedures of DOT is unnecessary.
Small Entities
Several comments were received stating that the impact on small
entities had not been quantified. Some of these comments indicated that
both the media as an economic entity and recreational fishing vessels
would be harmed by this rule. One comment stated that Mexican
businesses would be adversely affected by whale hunting. The media will
be allowed to document the hunt using a media pool vessel. Small
entities and recreational vessels such as fishing vessels and whale
watching boats need to maintain prudent distances from whale hunts as a
safety precaution whether this rule exists or not. As discussed above,
the Coast Guard recommends that all mariners, including small entities,
maintain a distance well in excess of 500 yards during whale hunt
activities.
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considers whether this interim rule, if adopted, will have
a significant economic impact on a substantial number of small
entities. ``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
Small entities that might be affected could include whale-watching
ventures, tugboats and their tows, small passenger vessels, and
commercial fishermen. The very small size and duration of the Moving
Exclusionary Zone minimizes the effects, if any from this rule on small
entities.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this interim rule, if adopted, will not have a significant economic
impact on a substantial number of small entities. If, however, you
think that your business or organization qualifies as a small entity
and that this interim rule will have a significant economic impact on
your business or organization, please submit a comment (see ADDRESSES)
explaining why you think it qualifies and in what way and to what
degree this interim rule will economically affect it.
Collection of Information
This interim rule does not provide for a collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Federalism
A public comment stated a belief that the Makah would be allowed to
determine the boundaries of the RNA, and therefore a Federalism
Assessment is necessary. The Coast Guard has determined the size of the
RNA, not the tribe. Whale hunt locations are determined by the Makah
tribe and their treaty with the U.S.; the hunts could occur within or
outside the RNA. The Makah tribe has asked for an RNA larger than that
stated in this rule. One of the primary missions of the Coast Guard is
to enhance safety at sea, and this action does not interfere with local
authority. This rule does not raise Federalism concerns.
The Coast Guard has analyzed this interim rule under the principles
and criteria contained in Executive Order 12612 and has determined that
this
[[Page 52609]]
interim rule does not have sufficient implications for federalism to
warrant the preparation of a Federalism Assessment.
Environment
Some public comments stated that the proposed rule would violate
NEPA. The Coast Guard considered comments that raised environmental
concerns with the application of a categorical exclusion. The Coast
Guard has reviewed its determination, and concluded that this
regulation is properly categorically excluded. The Coast Guard
considered the potential environmental impacts of this interim rule and
concluded that there were no potential effects that preclude
application of the categorical exclusion found at figure 2-1, paragraph
(34)(g) of Commandant Instruction M16475.1C. The ``Categorical
Exclusion Determination'' is available in the docket for inspection or
copying as indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Interim Regulation
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. Add Sec. 165.1310 to read as follows:
Sec. 165.1310 Strait of Juan de Fuca and adjacent coastal waters of
Northwest Washington; Makah Whale Hunting--Regulated Navigation Area.
(a) The following area is a Regulated Navigation Area (RNA): From
48 deg.10.0' N, 124 deg.42.1' W northward along the mainland shoreline
of Washington State to Cape Flattery and thence eastward along the
mainland shoreline of Washington State to 48 deg.22' N, 124 deg.34' W;
thence due north to 48 deg.24.5' N, 124 deg.34' W; thence northwesterly
to 48 deg.27.1' N, 124 deg.41.8' W; thence due west to 48 deg.27.1' N,
124 deg.45.5' W; thence southwesterly to 48 deg.22.7' N, 124 deg.49.3'
W; thence southerly along the three nautical mile line to 48 deg.15' N,
124 deg.47.6' W; thence due east back to the shoreline of Washington at
48 deg.15' N, 124 deg.42.1' W. Datum: NAD 1983.
(b) During a whale hunt, while the international numeral pennant
five (5) is flown by a Makah whale hunt vessel, the following area
within the RNA is a Moving Exclusion Zone: The column of water from the
surface to the seabed with a radius of 500 yards centered on the Makah
whale hunt vessel displaying international numeral pennant five (5).
This Moving Exclusionary Zone is activated only when surface visibility
exceeds one nautical mile, between sunrise and sunset, and the Makah
whale hunt vessel displays the international numeral pennant five (5).
The Moving Exclusionary Zone is deactivated upon sunset, visibility is
reduced to less than one nautical mile, or when the Makah hunt vessel
strikes international numeral pennant five (5).
(c) Unless otherwise authorized by the Commander, Thirteenth Coast
Guard District or his or her representative, no person or vessel may
enter the active Moving Exclusionary Zone except for:
(1) Authorized Makah whale hunt vessel actively engaged in hunting
operations under direction of the master of the Makah vessel flying
international numeral pennant five (5), and
(2) A single authorized media pool vessel operating in accordance
with paragraph (f) of this section.
(d) The international numeral pennant five (5) is only authorized
to be displayed from one Makah whale hunt vessel during actual whale
hunt operations. No other vessels may display this pennant within the
RNA at any time. Whale hunt operations commence when a whale hunt
vessel is underway and its master intends to have a whale killed during
the voyage. Whale hunt operations cease once this intent is abandoned,
a whale is landed, or when the international numeral pennant five (5)
is struck.
(e) The Makah Tribe shall make SECURITE Broadcasts beginning one
hour before the commencement of a hunt and every half hour thereafter
until hunting activities are concluded. This broadcast shall be made on
channel 16 VHF-FM and state:
A whale hunt is proceeding today within the Regulated Navigation
Area established for Makah whaling activities. The (name of vessel)
is a (color and description of vessel) and will be flying
international numeral pennant five (5) while engaged in whaling
operations. This pennant is yellow and blue in color. Mariners are
required by federal regulations to stay 500 yards away from (name of
vessel), and are strongly urged to remain even further away from
whale hunt activities as an additional safety measure.
(f)(1) Credentialed members of the media interested in entering the
Moving Exclusionary Zone may request permission to operate a single
media vessel in the Moving Exclusionary Zone by telephoning Coast Guard
Public Affairs, as soon as practicable at (206) 220-7237 during normal
working hours, and (206) 220-7001 after hours. Coast Guard
preauthorization is required prior to entry into the Moving
Exclusionary Zone by a single media pool vessel.
(2) The media pool vessel must be a U.S. documented vessel. The
media pool vessel must be under command at all times within the Moving
Exclusionary zone by a master licensed in the U.S. to carry passenger
for hire. All expenses, liabilities and risks associated with operation
of the media pool vessel lie with members of the pool and the pool
vessel owners and operators.
(3) The master of the media pool vessel shall maneuver to avoid
positioning the pool vessel between whales and hunt vessel(s), out of
the line of fire, at a prudent distance and location relative to whale
hunt operations, and in a manner that avoids hindering the hunt or path
of the whale in any way.
(4) Although permitted to maneuver within the Moving Exclusionary
Zone, personnel aboard the media pool vessel are still required to
follow safety and law enforcement related instructions of Coast Guard
personnel.
Dated: September 24, 1998.
Paul M. Blayney,
Rear Admiral, U.S. Coast Guard, Commander, 13th Coast Guard
District.
[FR Doc. 98-26340 Filed 9-28-98; 4:55 pm]
BILLING CODE 4910-15-M
