Ports and waterways safety: Strait of Juan De Fuca and adjacent coastal waters, WA; regulated navigation area,

[Federal Register: July 22, 1998 (Volume 63, Number 140)]

[Proposed Rules]

[Page 39256-39258]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22jy98-26]

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.

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. 98-19423Filed7-21-98; 8:45 am]

   BILLING CODE 4910-15-M