[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Proposed Rules]
[Pages 39256-39258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19423]
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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: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard, after consultation with the Department of
Justice, Department of Interior and the Department of Commerce,
proposes to establish a permanent regulated navigation area along the
northwest Washington coast and in a portion of the entrance of the
Strait of Juan de Fuca. The regulated navigation area would be used to
reduce the danger of life and property in the vicinity of Makah whale
hunting activities. Within the regulated navigation area a moving
exclusionary zone around the Makah hunting vessel would be created for
the duration of each hunt.
DATES: Comments must reach the Coast Guard on or before September 8,
1998.
ADDRESSES: You may mail comments to the Commander(m), Thirteenth Coast
Guard District, 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 Chris Woodley (206) 220-7210.
SUPPLEMENTARY INFORMATION:
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 (CGD98-023) 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 acknowledgment of receipt of
comments should enclose stamped, self-addressed postcards or envelopes.
The Coast Guard is establishing a forty-five day comment period for
this proposed rule instead of the usual sixty day comment period. The
shortened comment period should be sufficient to allow the public to
comment on the proposed rule. The shortened comment period is needed so
that an effective rule may be put into place by the beginning of the
first Makah whale hunt. The Coast Guard will consider all comments
received during the comment period. It may change this proposed rule in
view of the comments.
The Coast Guard plans no public hearing. 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. If it determines that the opportunity for
oral presentations will aid this rulemaking, the Coast Guard will hold
a public hearing at a time and place announced by a later notice in the
Federal Register.
Background and Purpose
The United States Government, on behalf of the Makah Tribe,
obtained a quota for the Makah Tribe 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 be
accomplished using harpoons and a .50 caliber hunting rifle, fired from
a small boat. The Coast Guard proposes this regulated navigation area
and moving exclusionary zone to reduce the dangers to persons and
vessels in the vicinity of each hunt. 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 potentially endanger
life and property if persons and vessels are not excluded from the
[[Page 39257]]
immediate vicinity of a hunt. In addition, the Departments of Justice
and the Interior have examined the Makah Indian Tribe's Treaty right to
hunt whales and informed the Coast Guard that physical interference
with the hunt is inconsistent with federal law.
Discussion of Proposed Rule
The proposed rule would establish a permanent regulated navigation
area. The regulated area would extend out three nautical miles from
shore along the northwest Washington Coast and from shore to the edge
of the traffic separation scheme in a portion of the entrance to the
Straight of Juan de Fuca. The regulation would not affect normal
transit or navigation of the area except during, and in the immediate
vicinity of, a hunt. Within the regulated navigation area, a moving
exclusionary zone would surround the Makah hunting vessel during each
whale hunt. The proposed rule imposes no other restrictions on
navigation.
For the duration of each hunt, vessels and persons would be
excluded from the column of water from the surface to the seabed within
a radius of 500 yards centered on the Makah hunting vessel. This moving
exclusionary zone is proposed in ordered to reduce the danger to nearly
vessels and persons by minimizing the risks from the uncertain
movements of a pursued or wounded whale and from the dangers of stray
rifle fire and ricochets off the water. The activation of the moving
exclusionary zone would be signaled by the flying of the international
numeral pennant five (5) from a Makah whale hunting vessel. Only Makah
vessels actually engaged in pursuing, harpooning, shooting, securing,
or towing whales are authorized to fly pennant five (5) within the
regulated navigation area. The Makah Tribe would notify mariners of the
moving exclusionary zone by a SECURITE broadcast made once an hour on
channel 16 VHF-FM beginning one half hour before the hunt. The moving
exclusionary zone would only be active while hunting operations are
ongoing and the international numeral pennant five (5) is flown. The
signal flag would be authorized to be flown from the Makah hunting
vessel only during an actual whale hunt.
Regulatory Evaluation
This proposed 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 of 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
proposed 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
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considers whether this proposed 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 small size of the moving exclusionary zone
should minimize any effects from the proposed rule on these small
entities. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b)
that this proposed 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 proposed 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 proposed rule will economically affect it.
Collection of Information
This proposed rule does not provide for a collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposed rule under the
principles and criteria contained in Executive Order 12612 and has
determined that this proposed rule does not have sufficient
implications for federalism to warrant the preparation of a Federalism
Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposed rule and concluded that under figure 2-1, paragraph (34)(g) of
COMDTINST M16475.1C, this proposed rule is categorically excluded from
further environmental documentation because it establishes a regulated
navigation area. A ``Categorical Exclusion Determination'' is available
in the docket for inspection or copying where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reports and
recordkeeping requirements, Security measures, Waterways.
Proposed Regulation
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 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: From
48 deg.10-0' N, 124 deg.44.0' W northward and eastward along the
shoreline of Washington State to 48 deg.20.0' N, 124 deg.29.5' W;
thence due north to the southern boundary of the traffic separation
scheme in the Strait of Juan de Fuca at 48 deg.23.0' N, 124 deg.29.0'
W; thence westerly and southerly along the southern boundary of the
traffic separation scheme to its intersection with the three nautical
mile line at 48 deg.22.5' N, 124 deg.49.0' W; thence southerly along
the three nautical mile line to 48 deg.10.0' N, 124 deg.51.5' W; thence
due east back to the shoreline of Washington at 48 deg.10.0' N,
124 deg.44.0' W. Datum: NAD 1983.
(b) During a whale hunt, the following area within the regulated
navigation area is a moving exclusionary zone: The column of water from
the surface to the seabed with a radius of 500 yards centered on a
Makah hunting vessel displaying pennant five (5). This zone is
activated for the duration of the hunt and subsequent movement of the
whale to shore.
(c) Unless otherwise authorized by the Commander, Thirteenth Coast
Guard District or his representative, the area within the moving
exclusionary zone is closed to all vessels and persons whenever the
Makah Tribe is engaged in a whale hunt and flying pennant five
[[Page 39258]]
(5), with the exception that the master of a Makah whale hunting vessel
displaying pennant five (5) may authorize vessels assisting the hunt to
enter the moving exclusionary zone.
(d) The activation of the moving exclusionary zone described in
paragraph (b) of this section is signaled by the display of the
international numeral pennant five (5) is from the Makah hunting
vessel. This numeral pennant five (5) is authorized to be displayed
only from the Mekah hunting vessel during an actual whale hunt.
(e) The Mekah Tribe will make hourly SECURITE broadcasts notifying
mariners of the hunt and the moving exclusionary zone on channel 16
VHF-FM while the hunt is in effect.
J. David Spade,
Rear Admiral, U.S. Coast Guard Commander, 13th Coast Guard District.
[FR Doc. 98-19423 Filed 7-21-98; 8:45 am]
BILLING CODE 4910-15-M
