[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