[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