[Federal Register Volume 64, Number 217 (Wednesday, November 10, 1999)]
[Rules and Regulations]
[Pages 61209-61213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29365]


-----------------------------------------------------------------------

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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard, after consultation with the Department of 
Justice, Department of Interior and the Department of Commerce, is 
revising the Interim Rule and adopting it as final. The Coast Guard 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 final RNA covers a broader geographic area 
than the interim rule and also changes the amount of time of the 
SECURITE notice from one hour to one half hour prior to whale hunting 
operations. 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 (MEZ) around a Makah whale hunt vessel may be in 
effect during actual whale hunt operations.

DATES: This final rule is effective November 10, 1999.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD 13-98-023 and are available for inspection or 
copying at Thirteenth Coast Guard District (m), RM 3506, 915 Second 
Avenue, Seattle, WA 98174, between 9:30 a.m. and 2 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Thirteenth District Marine Safety 
Division (m), United States Coast Guard (206) 220-7210.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On July 22, 1998, we 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). On October 1, 1998, we published an 
interim rule entitled ``Regulated Navigation Area, Strait of Juan de 
Fuca and Adjacent Coastal Waters of Washington; Makah Whale Hunting'' 
in the Federal Register (63 FR 52603) No public hearing was held.
    Migrating gray whales are expected in the RNA after November 1, 
1999. An early effective date for this rule will help ensure safety of 
persons and property at sea should whale hunting operations commence 
during November in the expanded RNA. While the size of the RNA is 
expanded by the final rule, the size of the MEZ is unchanged. The Coast 
Guard did not receive the results of the environmental consultations in 
time to allow for a delayed effective date after publication. 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.

Background and Purpose

    The Makah Tribe has a federally recognized treaty right to hunt 
whales in their usual and accustomed fishing area off the northwest 
coast of Washington and in the entrance of the Strait of Juan de Fuca. 
Several hunts were initiated, but did not result in a whale being 
taken, in significant part to interference caused by boaters near the 
tribal hunt vessels. A whale hunt was completed on May 17, 1999 using a 
harpoon and a .50 caliber rifle, fired from a small boat. These 
experiences established that an MEZ reduces the dangers to persons and 
vessels in the vicinity of whale hunting activities. 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 are 
likely to be present in all future hunts, and present a significant 
danger to 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 49 comments after publication 
of the interim rule. The comments included letters from 10 
organizations, 1 federal agency, the Makah tribe, and 1 petition with 
multiple signatures. Responses to these comments and changes made in 
the interim rule are discussed in the following paragraphs.
    Several comments objected to the taxpayer expense involved in 
implementing this rule. One suggested that the costs associated with 
enforcement of the RNA be borne by the Makah Tribe, not with federal 
funds. RNAs, safety zones and limited access areas are enforced 
nationwide using the Coast Guard's operating expense account. For 
example, a city fireworks 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.
    A frequent comment was that the RNA violated first amendment 
rights. Generally, these comments raised the concern that the 500 yard 
MEZ distance prevents appropriate documentation and recording of an 
event that is of significant public interest. One comment suggested 
that the Coast Guard implement a system of observers pooled from the 
media and non-government agencies to witness the whale hunt from Coast 
Guard assets. The Coast Guard recognizes that there is a public 
interest in the media recording and documenting this event. The interim 
rule allowed a single press pool vessel within the MEZ subject to 
certain restrictions. Requiring other members of

[[Page 61210]]

the public, including potential protesters, to remain 500 yards away 
from the hunt is a reasonable, content neutral restriction in light of 
the serious safety concerns presented by a whale hunt. This carefully 
tailored final rule balances the allowance for a press pool vessel 
within the MEZ and the significant public safety concerns, tribal 
treaty rights, and first amendment rights. The creation of the RNA is 
intended to enhance safety at sea. The presence of a media pool vessel 
and helicopters during prior hunts indicate very good ability for the 
media to document and witness these events.
    Numerous comments opposed any whaling. A petition with several 
signatures requested that the Coast Guard repeal the exclusionary zone. 
One comment stated that the Coast Guard failed to remain impartial and 
neutral. Another comment opined that the zone was being created solely 
to avoid controversy. Several comments addressed the morality of whale 
hunting and described the intended method of killing the whale as 
inhumane. The Coast Guard 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 the public safety aspects of the Makah whale hunt 
and, through implementation of this rule, is taking carefully tailored 
precautions without unconstitutionally infringing on public activities.
    Several 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 
Makah'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 raised concerns that the proposed SECURITE broadcasts 
created an unreasonable restriction on boaters in the area and provided 
inadequate notice of the MEZ. The MEZ is activated when a Makah whaling 
vessel displays the international numeral pennant five (5) flag. The 
final rule has been modified with respect to the length of the SECURITE 
notice prior to whale hunting operations. The Makah whalers are 
required to provide a Channel 16 VHF-FM SECURITE notice one half 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. The 
Coast Guard has not observed unreasonable restrictions on boating when 
an MEZ has been activated and finds that one half-hour notice is 
adequate notice to boaters considering the small size of the MEZ and 
the low density of vessel traffic.
    Several comments requested that the MEZ be applied to all Makah 
vessels engaged in the hunt. The zone is intended to enhance safety at 
sea in the vicinity of the hunting activity. The extension of the zone 
to include all Makah vessels would create multiple zones around vessels 
that are not necessarily directly involved in the hunt. The MEZ is 
established during daylight hours when a Makah vessel engaged in the 
hunt issues the one-half hour SECURITE notice and raises the 
international numeral five pennant. If the pennant is transferred from 
one vessel to another vessel involved in the hunt, then the zone is 
established around that vessel. The pennant is the signal to all 
mariners that the zone is in place around the vessel flying the 
pennant.
    Although numerous comments requested a public hearing, no comments 
provided convincing reasons why a hearing would be helpful in this 
rulemaking. Based on all the comments received to date, there has been 
an adequate forum and sufficient time for the public to express its 
concerns on all issues related to this rulemaking.
    One comment stated that there was no evidence supporting the 
finding that physical interference with the hunt is inconsistent with 
federal law. 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.
    Some comments asked that the RNA be extended southward to the full 
breadth of the Makah Tribe's usual and accustomed fishing area at 
48 deg.02'25'' N. The whale hunts that took place in early 1999 
generally involved operations south of the RNA boundary as established 
in the interim rule. These hunts were nevertheless within the Makah's 
usual and accustomed whaling area. The Makah have indicated they will 
continue to hunt in this area. Further the Coast Guard has determined 
that it is capable of monitoring activity in this area. The final rule 
is extending the RNA to include a greater portion of the Makah Tribe's 
usual and accustomed fishing area. The Coast Guard Authorization Act of 
1998 added a definition of navigable waters of the United States at 33 
U.S.C. 1222(5) to include the territorial sea out to 12 nautical miles 
from the baseline of the United States. (Pub. L. 105-383, Title III, 
Sec. 301(a), Nov 13, 1998, 112 Stat. 3417). This authorizes the Coast 
Guard to extend the protections of the RNA under the Ports and 
Waterways Safety Act from three to twelve nautical miles from the 
baseline of the United States. For the purposes of this rule, the 
definition at 33 U.S.C. 1222(5) supercedes the definitions found at 33 
CFR Secs. 2.05-5 and 2.05-25. The RNA will extend out to a north-south 
line approximately 10 nautical miles off the western coast of 
Washington State so as to avoid the Navy firing range and the Traffic 
Separation Scheme (TSS). The RNA will also extend southward to fully 
encompass the Tribe's usual and accustomed fishing areas. The purpose 
of the RNA is to promote safety. The Makah have clearly established 
that they will hunt within their entire usual and accustom fishing 
area. The Notice of Proposed Rule Making and the Interim Rule relied 
heavily upon the concern within the Coast Guard of the ability to 
patrol effectively in this remote area. Now that we have experienced an 
actual hunt we believe we can effectively patrol the expanded area. 
NOAA has also indicated that they would like the RNA to similarly be 
expanded. This is an illustration of the expanded RNA:

BILLING CODE 4910-15-P

[[Page 61211]]

[GRAPHIC] [TIFF OMITTED] TR10NO99.000



4910-15-C

[[Page 61212]]

Regulatory Evaluation

    This final 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. The Office of Management and Budget has not reviewed it 
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). Although some public comments stated that 
this action constitutes a significant regulatory action, the Coast 
Guard disagrees based on the minor portion of the navigable waters 
affected, and the brief time that actual whale hunt operations involve. 
Because of the limited number of whales that can be taken annually and 
the small size of the MEZ, 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

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
considered whether this final rule would 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. Several comments stated 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. 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. The very small size 
and duration of the MEZ minimizes the effects, if any, from this rule 
on small entities.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard 
offered to assist small entities in understanding the rule so that they 
could better evaluate its effects on them and participate in the 
rulemaking process.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    We have analyzed this final rule under Executive Order 13132 and 
have determined that this rule does not have implications for 
federalism under that order.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government, or the private sector to incur direct 
costs without the Federal Government's having first provided the funds 
to pay those unfunded mandate costs. This rule will not impose an 
unfunded mandate.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. This rule is not an 
economically significant rule and does not concern an environmental 
risk to health or risk to safety that may disproportionately affect 
children.

Environment

    The Coast Guard considered the potential environmental impacts of 
this rule and concluded that there were no potential effects that 
preclude application of the categorical exclusion found under figure 2-
1, paragraph (34)(g), of Commandant Instruction M16475.lC. Paragraph 
(34)(g) authorizes a categorical exclusion for rulemakings changing a 
Regulated Navigation Area. In assessing the potential environmental 
impacts of this rule, the Coast Guard consulted with the U.S. Fish and 
Wildlife Service, the Nisqually National Wildlife Refuge Complex, the 
Washington Maritime National Wildlife Refuge Complex, and the National 
Marine Fisheries Service. 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 record 
keeping requirements, Security measures, Waterways.

    Accordingly, the interim rule amending 33 CFR part 165 which was 
published at 63 FR 52609 on October 1, 1998, is adopted as a final rule 
with the following change:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS.

    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. Amend Sec. 165.1310 by revising paragraphs (a) and (e) 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.02.25'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.24.55'N, 124 deg.34'W; thence northwesterly 
to 48 deg.27.1'N, 124 deg.41.7'W; thence due west to 48 deg.27.1'N, 
124 deg.45.5'W; thence southwesterly to 48 deg.20.55'N, 
124 deg.51.05'W, thence west south west to 48 deg.18.0'N 
124 deg.59.0'W, thence due south to 48 deg.02.25'N, 124 deg.59.0'W) 
thence due east back to the shoreline of Washington at 48 deg.02.25'N, 
124 deg.42.1'W. Datum: NAD 1983.
* * * * *
    (e) The Makah Tribe shall make SECURITE broadcasts beginning one 
half hour before the commencement of

[[Page 61213]]

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 regulation 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.
* * * * *
    Dated: November 1, 1999.
James C. Olson,
Captain, U.S. Coast Guard, Acting Commander, 13th Coast Guard District.
[FR Doc. 99-29365 Filed 11-9-99; 8:45 am]
BILLING CODE 4910-15-P