[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]
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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: Final rule.
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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:
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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]
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