[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Proposed Rules]
[Pages 57854-57876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20324]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 080302361-6677-01]
RIN 0648-AU02
Protective Regulations for Hawaiian Spinner Dolphins Under the
Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose
regulations under the Marine Mammal Protection Act (MMPA) to prohibit
swimming with and approaching a Hawaiian spinner dolphin within 50
yards (45.7 m) (for persons, vessels, and objects), including approach
by interception. These proposed regulatory measures are intended to
prevent take of Hawaiian spinner dolphins from occurring in marine
areas where viewing pressures are most prevalent; prohibitions would
apply in waters within 2 nautical miles (nm; 3.7 km) of the Hawaiian
Islands and in the waters between the islands of Lanai, Maui, and
Kahoolawe. This proposed rule to establish 50-yard swim-with and
approach regulations would help ensure public compliance by providing
clear notice of prohibited conduct that results in take, including
harassment and disturbance.
Although unauthorized take of marine mammals, including harassment
of spinner dolphins, already is and continues to be prohibited under
the MMPA throughout their range, the purpose of this regulation is to
identify and prohibit specific human activities that result in take
(including harassment) of spinner dolphins, and thus reduce disturbance
and disruption of important Hawaiian spinner dolphin behaviors in areas
where human-dolphin interactions are most likely to occur. These
proposed regulations would reduce take of Hawaiian spinner dolphins and
the impact of human viewing and interaction on these animals in the
Main Hawaiian Islands (MHI). We developed this proposed rule after
considering comments submitted in response to an Advance Notice of
Proposed Rulemaking (ANPR), as well as information received during the
public scoping period for the Draft Environmental Impact Statement
(DEIS), from community meetings, and from a dedicated scientific
research project.
Although not currently part of this proposal, we are also
considering whether additional management measures may be necessary and
appropriate to protect Hawaiian spinner dolphins from take, especially
in essential daytime habitats that are regularly targeted by humans for
dolphin-directed activities. Accordingly, we are soliciting public
comment on the proposed swim-with and approach regulations, as well as
alternative management options discussed in this rule and in detail in
the DEIS.
DATES: Comments must be received no later than 5 p.m. on October 23,
2016.
Public meetings will provide the public with an opportunity to
provide comments on any portion of the proposed rule or DEIS. These
meetings are scheduled for:
September 7, 2016, 5:30-9:30 p.m. at Konawaena High School
Cafeteria, 81-1043 Konawaena School Rd., Kealakekua, HI 96750;
September 8, 2016, 5:30-9:30 p.m. at Kealakehe High School
Cafeteria, 74-5000 Puohulihuli St., Kailua Kona, HI 96740;
September 21, 2016, 5:30-9:00 p.m. at Kauai High School Cafeteria,
3577 Lala Rd., Lihue, HI 96766;
September 22, 2016, 5:30-9:00 p.m. at the Hawaiian Islands Humpback
Whale National Marine Sanctuary Visitor Center, 726 South Kihei Rd.,
Kihei, HI 96753;
September 27, 2016, 5:30-9:30 p.m. at Roosevelt High School Dining
Hall, 1120 Nehoa Street, Honolulu, HI 96822; and
September 28, 2016, 5:30-9:30 p.m. at Waianae High School
Cafeteria, 85-251 Farrington Hwy., Waianae, HI 96792.
ADDRESSES: You may submit comments, information, or data on this
document, identified by NOAA-2005-0226, and on the DEIS by either of
the following methods:
Electronic Submission: Submit all electronic comments via the
Federal
[[Page 57855]]
eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-
2005-0226, click the ``Comment Now!'' icon, complete the required
fields, and enter or attach your comments.
Mail: Submit written comments to Susan Pultz, Chief, Conservation
Planning and Rulemaking Branch, Protected Resources Division, National
Marine Fisheries Service, Pacific Islands Regional Office, 1845 Wasp
Blvd., Bldg. 176, Honolulu, HI 96818, Attn: Hawaiian Spinner Dolphin
Proposed Rule.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. We will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
The Draft Environmental Impact Statement (DEIS) and references can
be found online at http://www.fpir.noaa.gov/PRD/prd_spinner_EIS.html.
Additionally, copies of the DEIS are available in print at the
following libraries:
Hilo Library, 300 Waianuenue Ave., Hilo, HI 96720;
Kailua-Kona Library, 75-138 Hualalai Rd., Kailua Kona, HI 96740;
Kealakekua Library, 81-6619 Mamalahoa Hwy., Kealakekua, HI 96750;
Pahoa Library, 15-3070 Pahoa-Kalapana Rd., Pahoa, HI 96778;
Kihei Library, 35 Waimahaihai St., Kihei, HI 96753;
Lahaina Library, 680 Wharf St., Lahaina, HI 96761;
Lanai Library, 555 Fraser Ave., Lanai City, HI 96763;
Hawaii State Library, 478 S. King St., Honolulu, HI 96813;
Molokai Public Library, 15 Ala Malama, Kaunakakai, HI 96748;
Waianae Library, 85-625 Farrington Hwy., Waianae, HI 96792; and
Lihue Library, 4344 Hardy St., Lihue, HI 96766; or upon request
from the Conservation Planning and Rulemaking Branch Chief (see
ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Susan Pultz, NMFS, Pacific Islands
Region, Chief, Conservation Planning and Rulemaking Branch, 808-725-
5150; or Trevor Spradlin, NMFS, Office of Protected Resources, Acting
Chief, Marine Mammal and Sea Turtle Conservation Division, 301-427-
8402.
SUPPLEMENTARY INFORMATION
Background
Viewing wild marine mammals in Hawaii has been a popular
recreational activity for both tourists and residents over the past
several decades. Historically, most marine mammal viewing focused on
humpback whales (Megaptera novaeangliae) during the winter months when
the whales migrate from their feeding grounds off the coast of Alaska
to Hawaii's warm and protected waters to breed and calve. However,
increased viewing has focused on small cetaceans, with a particular
emphasis on Hawaiian spinner dolphins (Stenella longirostris), which
can be predictably found close to shore in shallow waters throughout
the MHI.
The number of commercial operators engaged in wild dolphin viewing
has grown dramatically in Hawaii in recent years (O'Connor 2009),
putting new pressures on easily accessible groups of resting Hawaiian
spinner dolphins. In addition, a number of residents and visitors
venture on their own, independent of commercial operators, to view and
interact with spinner dolphins. The expectation for close interactions
with wild dolphins has been encouraged by some operators and various
media outlets, which routinely contradict established wildlife viewing
guidelines by promoting close vessel or in-water encounters with the
dolphins.
We have received many complaints that spinner dolphins are being
routinely disturbed by people attempting to closely approach and
interact with the dolphins by boat or other watercraft (e.g., kayaks),
or in the water (e.g., snorkel or ``swim-with-wild-dolphins''
activities). In addition, concerns over human-dolphin interactions have
been expressed by officials from the Hawaii Department of Land and
Natural Resources (DLNR) and the U.S. Marine Mammal Commission (MMC),
as well as various members of the public, including representatives of
the Native Hawaiian community, scientific researchers, wildlife
conservation organizations, public display organizations, and some
commercial tour operators.
In 2010, we recognized five island-associated stocks and one
pelagic stock of Hawaiian spinner dolphins in our annual Stock
Assessment Report, identifying genetic distinctions and site fidelity
differences as reasons to separately manage stocks found in waters
surrounding the Hawaiian Islands (Carretta et al. 2010). Three of the
five island-associated stocks (the Kauai/Niihau stock, Oahu/4 Islands
(i.e., Maui County) stock, and Hawaii Island stock) are found near the
MHI and are considered resident stocks. These three stocks reside in
waters surrounding their namesake islands out to approximately 10 nm
(18.5 km) (Hill et al. 2010), and population estimates for each stock
are relatively small. Recent research indicates that the Hawaii Island
stock, which is thought to be the largest stock, has an estimated 631
individuals (Coefficient of Variation (CV) = 0.09) (Tyne et al. 2014,
Carretta et al. 2016). Data for other stocks in the MHI is limited;
however, using the best available information, the Kauai/Niihau and
Oahu/4 Islands stocks are estimated to be around 601 (CV = 0.20) and
355 (CV = 0.09) individuals, respectively (Carretta et al. 2016).
Island-associated spinner dolphins, such as those found in the MHI,
have complex social structures and behavioral patterns linked to
specific habitats that support their high energetic demands. The rigid,
cyclical, and patterned behavior of a Hawaiian spinner dolphin's day is
well documented from decades of scientific research on spinner dolphins
off the Kona coast on the island of Hawaii (Norris and Dohl 1980,
Norris et al. 1994). The daily pattern of Hawaiian spinner dolphins has
been characterized as ``working the night shift,'' because the
energetically demanding task of foraging is accomplished nightly when
spinner dolphins move offshore in large groups to feed. Spinner
dolphins feed on fish, shrimp, and squid found in the mesopelagic
boundary community, part of the pelagic zone that extends from a depth
of 200 to 1,000 m (~660 to 3,300 feet) below the ocean surface. Spinner
dolphins maximize their foraging time by actively moving with, or
tracking, the horizontal migration of the mesopelagic boundary
community throughout the night, as it moves inshore until midnight and
then offshore around sunrise (Benoit-Bird and Au 2003). Spinner
dolphins are acoustically very active during foraging activities
(Norris et al. 1994), working cooperatively in large groups using
coordinated movements to maximize foraging potential (Benoit-Bird
2004).
During the day, spinner dolphins return in smaller groups to areas
closer to shore to socialize, nurture their young, and rest in
preparation for nightly foraging (Norris et al. 1994). These smaller
groups visit specific habitats that are located along the coastlines of
the MHI. These preferred daytime habitats of spinner dolphins are
[[Page 57856]]
areas that provide space with optimal environmental conditions for
resting, socializing, and nurturing young, and are referred to
hereafter as ``essential daytime habitats.'' Spinner dolphins'
essential daytime habitats are located close to offshore feeding areas,
which minimizes the energetic cost of nightly travel to these areas
(Norris et al. 1994, Thorne et al. 2012). Additionally, essential
daytime habitats have large patches of sand bottom habitat, which
increases the dolphins' ability to visually (instead of acoustically)
detect predators while resting, and thus minimizes the energetic costs
of vigilance (Norris et al. 1994). Throughout the day, spinner dolphins
take advantage of the physical characteristics of essential daytime
habitats to engage in specific patterned resting behaviors to
recuperate between foraging bouts. The physical characteristics of
these essential daytime habitats, combined with specific patterned
resting behaviors, play an important role in supporting the dolphins'
activity and energetic budgets.
Essential daytime habitats have been targeted by commercial
operators and individuals interested in viewing or interacting with
Hawaiian spinner dolphins because encounters with dolphins in these
areas are virtually guaranteed. At some locations, up to 13 tour boats
have been observed jockeying for position on a single dolphin group,
with up to 60 snorkelers in the water (Heenehan et al. 2014). Apart
from commercial tour operations, people also swim, kayak, or paddle
into essential daytime habitats to seek interactions with the dolphins
(Sepez 2006). In addition, organized retreats centered on dolphin
encounters, dolphin-assisted therapy, and dolphin-associated spiritual
practices have flourished in certain areas, further increasing the
intensity of dolphin-directed activities in nearshore areas and
especially within essential daytime habitats (Sepez 2006).
There is a growing body of scientific evidence documenting the
effects of dolphin-directed activities on spinner dolphins, especially
activities that involve close approaches by humans. Peer-reviewed
scientific literature documents disturbance of individual spinner
dolphins as well as changes to spinner dolphin group behavioral
patterns. Individual dolphin responses to these activities vary, and in
some cases may not be apparent to an observer (e.g., elevated heart
rates or increased watchfulness). However, discernable responses may
include aerial displays when closely approached by vessels and swimmers
(Forest 2001, Courbis and Timmel 2008); avoidance behaviors, including
moving around and away from swimmers and vessels, or leaving the area
in response to human pursuit (Ostman-Lind et al. 2004, Courbis 2004,
Courbis and Timmel 2008); and aggressive behaviors directed at people,
including charging or threat displays (Norris et al. 1985, Norris et
al. 1994).
Effects have been documented in the form of changes over time to
spinner dolphins' behavioral patterns in essential daytime habitats,
where spinner dolphins' behavioral patterns are easily observed.
Courbis and Timmel (2008) reported differences in peak aerial activity
throughout the day in comparison with earlier studies (Forrest 2001)
and noted that dolphins may have reduced aerial behavior when entering
and exiting bays to avoid human notice and approaches. Timmel et al.
(2008) noted the dolphins' direction of travel altered more frequently
as the number of swimmers and/or vessels near to them increased. Symons
(2013) found that spinner dolphins are less likely to rest when
swimmers are present within 150 m. Numerous studies report changes in
dolphin residence time within essential daytime habitats compared to
earlier studies (Courbis 2004, Courbis and Timmel 2008, Ostman-Lind
2007, Forest 2001). In addition, human activities within essential
daytime habitats may be affecting where spinner dolphins engage in
their daytime behaviors within these areas. Courbis and Timmel (2008)
reported changes in the location of resting spots within Kealakekua Bay
from previous studies by Doty (1968) and Norris and Dohl (1980), and
warned that changes in locations within the bay could be a precursor to
abandonment of the bay with future increases in traffic.
Hawaiian spinner dolphin studies off the island of Oahu also
demonstrate the effects of swimmers on dolphins' daily resting
behavioral patterns. As the number of swimmers increased in an
essential daytime habitat off the west coast of Oahu, the dolphins
departed the area at earlier times during the day, possibly indicating
reduced rest periods in response to swimmer presence (Danil et al.
2005). Additionally, Danil et al. (2005) noted that on several
occasions, smaller spinner dolphin groups (<25 animals) refrained from
entering an essential daytime habitat when swimmer presence was high,
suggesting that the observed spinner dolphin rest patterns were altered
in order to accommodate and adapt to the swimmers' occurrence. The
authors predicted that swimmer presence keeps the dolphins in a
constant state of alertness and vigilance, and that delayed diving
behavior (in the morning during swimmers' presence) may indicate a
diminished quality of rest (Danil et al. 2005).
When marine mammals respond to disturbance events, they incur a
cost in the form of the energy expended to respond as well as the lost
opportunity to engage in natural fitness-enhancing behavior. For
example, spinner dolphins disturbed during rest may engage in avoidance
or distress behaviors, which require energy, and disturbance detracts
from the dolphins' abilities to recuperate from energetically demanding
behaviors such as foraging, transiting to and from offshore foraging
grounds, and nurturing their young. In this example, the lack of
consistent, undisturbed resting periods can reduce the amount of energy
available to forage and care for young.
The predictable patterns of MHI resident spinner dolphins'
nearshore distribution and daytime behaviors result in concentrated
daily viewing and interaction pressure on individual dolphins and
groups over extended periods of time. In other small cetacean
populations, chronic disturbance to natural behavioral patterns has
been linked to biologically significant impacts such as habitat
abandonment and reduced female reproductive success (Bejder 2005;
Bejder et al. 2006a, 2006b; Lusseau and Bejder 2007). Similarly, over
time, chronic disturbance to the MHI's resident spinner dolphins could
ultimately lead to habitat displacement and/or long term impacts to
their individual fitness. These types of impacts may be amplified in
resident, closed or isolated populations (local populations with
barriers to gene flow) (Bejder 2005) because the impacts to multiple
individuals' health and fitness are quickly reflected in the overall
fitness of the population. Accordingly, the small resident spinner
dolphin populations of the MHI may be more vulnerable to negative
impacts from human disturbance.
Disturbances to dolphins' daily behavioral patterns may result in
``take,'' as defined and prohibited under the MMPA and its implementing
regulations, and the chronic nature of these problems in Hawaii and
observed changes to spinner dolphin behavioral patterns over time are a
cause for concern.
Current MMPA Prohibitions and NMFS Guidelines and Regulations
Under section 102 of the MMPA, 16 U.S.C. 1361 et seq., it is
unlawful for any person, vessel, or other conveyance to ``take'' any
marine mammal in waters
[[Page 57857]]
under the jurisdiction of the United States (16 U.S.C. 1372). The
prohibition against take includes acts that ``harass'' marine mammals
(16 U.S.C. 1362(13)). Harassment means any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal in the wild
(Level A Harassment), or has the potential to disturb a marine mammal
in the wild by causing disruption of behavioral patterns, including,
but not limited to, migration, breathing, nursing, breeding, feeding,
or sheltering (Level B Harassment) (16 U.S.C. 1362(18); see also 50 CFR
216.3).
In addition, NMFS' regulations implementing the MMPA further define
the term ``take'' to include ``the negligent or intentional operation
of an aircraft or vessel, or the doing of any other negligent or
intentional act which results in disturbing or molesting a marine
mammal; and feeding or attempting to feed a marine mammal in the wild''
(50 CFR 216.3).
Section 112 of the MMPA authorizes NOAA to implement regulations
that are ``necessary and appropriate to carry out the purpose'' of the
MMPA (16 U.S.C. 1382).
To date, NMFS has developed specific approach distance regulations
for certain species of marine mammals listed under the Endangered
Species Act (ESA) (16 U.S.C. 1531 et seq.). Each rule was based on the
biology of the marine mammals and the best available scientific
information on the nature of the threats. Examples of these types of
regulations include a 100-yard (91.4 m) approach limit for humpback
whales in Hawaii (60 FR 3775; January 19, 1995); a 100-yard approach
limit for humpback whales in Alaska, which includes a speed restriction
in the vicinity of the whale (66 FR 29502; May 31, 2001); a 500-yard
(457.2 m) approach limit for North Atlantic right whales (62 FR 6729;
February 13, 1997); size-specific vessel speed restrictions within
specific areas in waters off the U.S. East Coast to protect North
Atlantic right whales (73 FR 60173; October 10, 2008); and a 200-yard
(182.9 m) approach limit for killer whales with prohibitions against
vessels intercepting a killer whale or positioning the vessel in its
path in the inland waters of Washington State (76 FR 20870; April 14,
2011).
In addition to the specific ESA regulations mentioned above, NMFS
has developed guidelines for conducting responsible marine wildlife
viewing to help the public avoid causing any take (harassment or
disturbance) of protected wildlife species (http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_wildlife.pdf); these guidelines have been
available since 2004. On human interactions with marine mammals in the
wild, NMFS states the following: ``The MMPA does not provide for a
permit or other authorization to view or interact with wild marine
mammals, except for specific listed purposes such as scientific
research. Therefore, interacting with wild marine mammals should not be
attempted and viewing marine mammals must be conducted in a manner that
does not harass the animals. NMFS does not support, condone, approve,
or authorize activities that involve closely approaching, interacting,
or attempting to interact with whales, dolphins, porpoises, seals, or
sea lions in the wild. This includes attempting to swim with, pet,
touch, or elicit a reaction from the animals'' (http://www.nmfs.noaa.gov/pr/dontfeedorharass.htm).
In addition to the national guidelines, each of the five NMFS
Regions has developed recommended viewing guidelines relevant to
protected species within their region to assist the general public with
information on how to responsibly view and act around these animals in
the wild. The guidelines are aimed at assisting the public in meeting
their obligations under the MMPA and ESA. Although some guidelines
address activities that are prohibited under law, others address
activities that are not expressly prohibited.
The NMFS Pacific Islands Regional Office's viewing guidelines for
Hawaii recommend that people view wild dolphins from a safe distance of
at least 50 yards (45.7 m) and advise against trying to chase, closely
approach, surround, swim with, or touch the animals. To support the
guidelines in Hawaii, NMFS has partnered with the State of Hawaii and
the Hawaiian Islands Humpback Whale National Marine Sanctuary over the
past several years to promote safe and responsible wildlife viewing
practices through the development of outreach materials, training
workshops, signage, and public service announcements. NMFS' education
and outreach efforts have also been supported by a partnership with the
Watchable Wildlife program, a consortium of Federal and State wildlife
agencies and wildlife interest groups that encourages passive viewing
of wildlife from a distance for the safety and well-being of both
animals and people (Duda 1995, Oberbillig 2000, Clark 2006). In
addition to the guidance provided to the general public on protected
wildlife viewing, several tour industry-specific programs have been
initiated in various NMFS regions to further support protection of
marine mammals targeted for wildlife viewing. In Hawaii this includes
administration of the voluntary Dolphin SMART program for commercial
operators who pledge to comply with safe and responsible wildlife
viewing practices.
Dolphin SMART is a model wildlife viewing stewardship program
developed by NMFS and NOAA's Office of National Marine Sanctuaries in
partnership with Whale and Dolphin Conservation, the Dolphin Ecology
Project, local businesses, and members of the public, who have teamed
up to support responsible viewing of wild dolphins. The program was
launched in 2007 in Key West, Florida, was subsequently expanded to the
Central and Southwest Florida coast, and established in Hawaii in 2011.
The NMFS Pacific Islands Regional Office developed the Dolphin
SMART program in Hawaii to aid education and outreach efforts for
Hawaiian spinner dolphin conservation and management. Three businesses
on Oahu, one on Kauai, and two on Maui are currently recognized as
Dolphin SMART participants.
The Dolphin SMART program goals are to minimize the potential of
wild dolphin harassment caused by commercial viewing activities, reduce
expectations of close interaction with wild dolphins in a manner that
may cause harassment, address advertising that creates expectations of
engaging in activities that may cause harassment, and promote
responsible stewardship of dolphins in local coastal waterways. The
``SMART'' acronym stands for:
S--Stay back 50 yards from dolphins
M--Move cautiously away if dolphins show signs of disturbance
A--Always put your engine in neutral when dolphins are near
R--Refrain from feeding, touching, or swimming with wild dolphins
T--Teach others to be Dolphin SMART
More information on the Dolphin SMART program can be found at the
following Web sites: www.dolphinsmart.org and www.facebook.com/OfficialDolphinSmart.
Need for Additional Action
Despite the prohibitions, guidelines, outreach, and stewardship
efforts currently in place, close interactions between humans and
spinner dolphins continue to occur in Hawaii's waters and are
especially prevalent in essential daytime habitats (see Background). In
April 2000, the MMC released a literature review of scientific
publications that evaluated the impacts of swimming with wild dolphins
worldwide (Samuels et al. 2000). The authors of this review noted the
[[Page 57858]]
prevalence of disturbances by tourist activities in areas critical to
the animals' well-being, and recommended that precautions be taken to
protect the dolphins (Samuels et al. 2000).
The concerns about disturbance to spinner dolphins by boaters and
swimmers prompted NMFS to raise the topic of enhancing protections for
these animals in an Advanced Notice of Proposed Rulemaking (ANPR) (70
FR 73426, December 12, 2005). Public comments received in 2005
reiterated and reinforced the concerns expressed by the MMC. In the
years since the 2000 Samuels et al. review, additional scientific
evidence has documented disturbances or disruptions to spinner dolphins
by boaters or swimmers (Forest 2001; Courbis 2004, 2007; Danil et al.
2005; Timmel 2005; Courbis and Timmel 2009; Ostman-Lind 2009; Symons
2013; Heenehan et al. 2014; Tyne et al. 2015). This problem is
pronounced in essential daytime habitats that are targeted for dolphin-
directed activities, and animals that use these areas are exposed to
intense activity on a daily basis. For example, a recent study found
that human activities took place within 100 m of spinner dolphins 83
percent of the time the animals were using four essential daytime
habitats on the island of Hawaii (Tyne 2015).
Based on extensive review and analysis through internal scoping,
external scoping via the ANPR, public scoping for the DEIS, and the
best available scientific information, we have determined that the
existing prohibitions, regulations, and guidelines need to be
strengthened to protect Hawaiian spinner dolphins from various forms of
take from human activities that cause harassment or disturbance.
Dolphins' response to disturbance varies among individuals, but in most
cases it includes a departure from natural behavioral patterns that
support the animal's health and fitness, and chronic disturbance may
result in negative impacts to the fitness of individuals and/or
populations. We therefore deem it necessary and appropriate to adopt
additional regulations to clarify human activities that result in take
of Hawaiian spinner dolphins, including harassment or other forms of
disturbance as currently defined by statute and regulation.
Although unauthorized take of dolphins continues to be illegal
wherever it occurs, we are focusing these regulations in nearshore
areas, out 2 nm (3.7 km) from shore of the MHI and including designated
waters between Lanai, Maui, and Kahoolawe (see Figures 1 and 2 in
section 216.20(e) and Geographic Area section below), where the threat
from dolphin-directed activities is concentrated and where spinner
dolphins engage in daytime behaviors, including resting, socializing,
nurturing, and traveling. These additional measures are intended to
prevent ``take'' during important resting periods and allow Hawaiian
spinner dolphins to engage in normal fitness-enhancing behaviors,
thereby preventing long-term negative impacts to individuals and to the
population.
Development of Proposed Regulations
In 2005, NMFS convened a Spinner Dolphin Working Group with
representatives from the MMC, State and Federal agencies, and
scientific researchers who work on spinner dolphin conservation
concerns. The group evaluated the best available information at the
time to understand the scope of the tourist and recreational activities
targeting spinner dolphins. As noted above (Need for Additional Action
section), in December 2005, we published an ANPR in the Federal
Register (70 FR 73426, December 12, 2005) to solicit input from the
public on potential ways to better enhance protections for spinner
dolphins and mitigate activities of concern (e.g., close approach and
swim-with activities). This was followed by a Notice of Intent (NOI) to
Prepare an Environmental Impact Statement (EIS) under the National
Environmental Policy Act (NEPA) (71 FR 57923; October 2, 2006), in
which we identified a preliminary list of potential regulations for
future consideration and comment, which included partial time-area
closures in certain spinner dolphin essential daytime habitats, a
minimum distance limit for approaching dolphins in the wild,
restrictions on certain human behaviors in NMFS-identified spinner
dolphin resting areas, and complete closure of all known spinner
dolphin resting areas in the MHI.
During the ANPR and the NOI comment periods, five public scoping
meetings were held on the islands of Kauai, Oahu, Maui, and Hawaii, and
oral statements were taken at each meeting. NMFS received a total of
4,641 public comments in response to the ANPR and the NOI (this
includes all emails, letters, and public testimonies). Comments were
submitted by concerned citizens, tour operators, scientific
researchers, conservation and education groups, and Federal, State, and
other government entities.
Comments received through both of the public comment periods varied
widely and recommended numerous actions to consider, ranging from no
regulations to permanent closure of areas used by the dolphins for rest
and shelter. Additionally, public comments raised concerns about
various topics that should be addressed in the EIS or proposed action.
These concerns are grouped into various topics in the final scoping
report, and include the following topics: Hawaiian spinner dolphin
biology and behavior; cultural issues; cumulative effects; data/data
gaps; direct and indirect effects; education/outreach; enforcement; the
ESA; guidelines/solutions for other species or from other countries;
human-dolphin interaction, medical benefits from swimming with
dolphins; MMPA; monitoring; the NEPA; public and stakeholder
involvement; regulatory regime; social and economic issues; spiritual
and religious issues; take and harassment, traditional Hawaiian
knowledge; and welfare of the dolphins. Although comments varied
greatly, a consistent theme that stood out under several topics was the
need for effective and enforceable regulations.
As a result of stakeholder concerns expressed through these public
comments, and for the preparation of this rule and associated DEIS, we
made multiple site visits to areas where concerns have been raised
regarding Hawaiian spinner dolphin disturbance in the MHI. During these
visits, we met with concerned members of the public to gather
information relevant to this analysis. Additionally, we coordinated
with State and Federal agencies, and used the public comments generated
from the ANPR and NOI to develop a range of actions and mitigation
measures that are reflected in numerous alternatives under
consideration for the proposed action.
Presentations made at the public scoping meetings, the April 2007
EIS public scoping summary report, a list of the attendees, the ANPR,
public comments, and background materials are provided at http://www.fpir.noaa.gov/PRD/prd_spinner_EIS.html.
We relied on the public comments on the ANPR and the NOI, and on
new scientific information to develop a range of regulatory and non-
regulatory alternatives, including the alternative of not adopting
regulations. We analyzed the environmental effects of these
alternatives and considered options for mitigating effects. After a
preliminary analysis of alternatives, we developed and analyzed the
effects of the swim-with and 50-yard (45.7 m) approach regulations,
which we chose as our preferred alternative, which includes no
interception (i.e., ``leapfrogging'' or placing a person or vessel in
the path of
[[Page 57859]]
dolphins for the purpose of interception). As more fully discussed
below, we specifically seek public comment on whether these proposed
measures alone will provide sufficient protection to spinner dolphins
from human interactions.
Although not currently proposed, we are considering whether other
management measures also may be necessary and appropriate to protect
Hawaiian spinner dolphins from take, especially in essential daytime
habitats targeted by humans for dolphin-directed activities.
Accordingly, we have also analyzed the effects of the alternative
management measures of promulgating swim-with and approach regulations,
while additionally creating either mandatory (see DEIS Alternative 4)
or voluntary (see DEIS Alternative 5) time-area closures in five
essential daytime habitats. The results of our analyses are contained
in a DEIS. The DEIS is available for review and comment in association
with this rulemaking (see ADDRESSES). A description of these
alternatives is also included in the Additional Measures Under
Consideration section of this proposed rule.
SAPPHIRE Project
During the initial scoping period for the Spinner Dolphin Human
Interaction EIS, we received comments that recommended gathering
additional information on Hawaiian spinner dolphins, including
monitoring local populations to determine impacts to numbers and
overall health of the MHI resident spinner dolphins. In response to
this recommendation and to inform this rulemaking effort, NMFS internal
grant funding was awarded to the ``Spinner Dolphin Acoustics,
Population Parameters, and Human Impact Research'' (SAPPHIRE) program,
conducted jointly by Duke University and Murdoch University. The
SAPPHIRE project's objective was to provide baseline data on the local
abundance, distribution, and behavior of spinner dolphins in Kealakekua
Bay, Honaunau Bay, Kauhako Bay, and Makako Bay off of the island of
Hawaii, as well as in nearshore, shallow-water environments near these
resting bays. This intensive study integrated a suite of visual and
acoustic sampling techniques, using boat-based and land-based surveys,
as well as acoustic recording devices, to assess the following: Spinner
dolphin daytime habitat use and resting behavior in study areas and
surrounding waters; residency and fidelity patterns of spinner dolphins
during the day in nearshore habitats in both the study areas and
surrounding waters; spinner dolphin exposure to human activities within
the studied resting bays and surrounding waters; and spinner dolphin
demographic response to human activities within resting bays and
surrounding waters.
Research in the four bays and nearshore waters of the island of
Hawaii began in August 2010 and was completed in May 2013. Results from
this study provided robust population estimates for the Hawaii Island
stock (see Background), as well as additional information about spinner
dolphin habitat use and the pressure that this resident stock faces
from dolphin-directed human activities. Many of these studies have been
published in scientific literature and scientific reports and were used
to inform this rulemaking process (Thorne et al. 2012, Johnson et al.
2013, Heenehan et al. 2014, Tyne et al. 2014, Tyne 2015, Tyne et al.
2015). Below we describe information gained from several of these
studies.
Early researchers (Norris and Dohl 1980, Norris et al. 1994)
hypothesized that essential daytime habitats have specific
environmental characteristics making them more favorable to the
dolphins in supporting resting behaviors, such as shallow, calm, flat,
protected, sandy-bottomed bays that provide easy access to nearby deep-
water foraging areas. Thorne et al. (2012) used dolphin surveys and
predictive habitat modeling to test a suite of these environmental
factors that may make spinner dolphins favor these areas. The study
found that proximity to deep-water foraging areas, depth, the
proportion of bays with shallow depths, and low rugosity (indicating
low substrate roughness, i.e., sand) were important predictors of
spinner dolphin habitat. The strongest predictors of spinner dolphin
resting habitat were distance to the 100-m depth contour (foraging
habitat) and depth of the resting areas, with spinner dolphin resting
habitat generally occurring in the shallow depths (<50 m) within a bay
that was close to the 100-m depth contour and thus, their offshore
foraging grounds (Thorne et al. 2012). In tests of these
characteristics across the MHI, the bays that were predicted by the
model to be optimal resting habitats were consistent with spinner
dolphin resting habitats that are recognized as preferred from various
observations and identified in the DEIS.
Tyne et al. (2015) further examined key ecological characteristics
and spinner dolphin behavior to see which characteristics support
resting behavior. The most important factor contributing to the
likelihood of rest was the dolphins' presence within a bay, meaning
that they were most likely to rest when they were inside a bay (Tyne et
al. 2015). Another important factor was the presence of sand substrate.
In general, spinner dolphins spent disproportionately more time over
sandy substrates in and out of bays; however, outside of bays, spinner
dolphins were observed mostly travelling over sandy substrates. This
supports the finding that the bays themselves are the most important
factor for resting behaviors, because even sandy substrate outside of
the bays did not significantly predict resting behavior. This work
highlights the role that habitat areas play in supporting important
fitness enhancing behaviors, specifically rest.
Johnson et al. (2013) assessed the influence of human activity on
the energy budget of Hawaiian spinner dolphins using a theoretical
model and comparing predictions from the model to empirical data
collected in Kealakekua Bay on spinner dolphin behavior. Under the
model, individual dolphins needed to spend at least 60 percent of their
time inshore in a resting state to be in a positive energetic balance.
Given this assumption, direct observations of spinner dolphins suggest
that these animals are currently spending adequate amounts of time
engaged in resting behaviors to meet their energetic requirements;
however, researchers cautioned that individuals with high energetic
demands could be at a deficit. For example, nursing mothers and
juveniles generally have a much higher energetic demand and these
individuals could be at risk of an energetic deficit. This study also
evaluated the likelihood of spinner dolphins resting, given various
human activities occurring at different distances. Researchers found
that the presence of swimmers within 150 m significantly decreased the
likelihood of resting. Interestingly, the likelihood of dolphins
resting was higher when vessels were present between 50 and 150 m,
creating the appearance of a positive relationship between resting
behavior and vessel presence at this distance. These results may
demonstrate a difference in dolphins' perceived risk between swimmers
and vessels, or a lack of perceived risk associated with vessels.
However, this positive relationship between resting behavior and
vessels may also be influenced by the high frequency of observations
with vessels present between 50-300 m and few observations with no
vessels present (Johnson et al. 2013).
[[Page 57860]]
Tyne (2015) similarly noted that spinner dolphins off the west
coast of the island of Hawaii are exposed to a high rate of human
activities and that this rate of exposure may obscure researchers'
ability to distinguish disturbance effects associated with intense
viewing pressures. In his evaluations, Tyne (2015) found that spinner
dolphins were exposed to human activities within 100 m over 80 percent
of the time that the dolphins were using essential daytime habitat.
Evaluations between control conditions, i.e., no vessels or people
within 100 m of dolphins, and exposure conditions, i.e., vessels or
people within 100 m of dolphins, suggested that human activities did
not have a significant effect on the probability of spinner dolphins
engaging in resting, socializing, or traveling. However, control
conditions did not occur often (less than 18 percent of the time) or
for long periods of time (median duration of 10 minutes), preventing a
robust comparison for the purposes of measuring effects. With so little
control data and with short durations between exposures to human
activity, Tyne (2015) questioned whether the observed data were
representative of true or deep resting behavior, or whether observed
resting behavior may only be ``light'' rest. In this case, observing
behavior alone may not be a reliable indicator for measuring
disturbance effects, because observed resting behavior may not
represent behavior that provides restorative benefits for these
animals. The rate of exposure to human activities off the west coast of
the island of Hawaii is 25 percent higher than reported for other
dolphins studied for behavioral response to human activities in other
areas of the world (Tyne 2015). This rate of exposure may place
resident stocks at risk and long-term disturbance could result in
habitat displacement or reduced fitness as seen in other dolphin
populations (Bejder et al. 2006a, 2006b; Lusseau and Bejder 2007).
Proposed Rulemaking
The swim-with and approach prohibitions described in this proposed
rule are designed to protect spinner dolphins from take, including
harassment and disturbance, caused by dolphin-directed activities that
are concentrated in coastal waters (within 2 nm (3.7 km) of shore and
in designated waters between Lanai, Maui, and Kahoolawe) and reduce the
impact of increased viewing and interaction pressures. Although we
stress that unauthorized take of spinner dolphins or any marine mammals
already is and continues to be prohibited by the MMPA in any location,
we believe that specific regulations aimed at identified human
activities that result in take of Hawaiian spinner dolphins is
warranted because of the chronic disturbance that is currently taking
place in nearshore waters. NMFS is proposing these regulations pursuant
to its rulemaking authority under MMPA sections 112(a) (16 U.S.C.
1382(a)) and 102 (16 U.S.C. 1372).
Although not included in this proposed rule, we are also
considering whether additional management measures may be necessary and
appropriate to protect Hawaiian spinner dolphins from take, especially
in essential daytime habitats targeted by humans for dolphin-directed
activities. The Additional Measures Under Consideration, Time-Area
Closures section below discusses both mandatory and voluntary time-area
closures as two alternative management options that may enhance
protections for Hawaiian spinner dolphins beyond the proposed swim-with
and approach rule.
Scope and Applicability
Applications to All Hawaiian Spinner Dolphins
The proposed rule's swim-with and approach prohibitions would apply
to all Hawaiian spinner dolphins found in the action area (see
Geographic Action Area section below).
Geographic Action Area
The action area for this rule is limited to waters within 2 nm (3.7
km) of each of the MHI and in designated waters between the islands of
Lanai, Maui, and Kahoolawe (see Figures 1 and 2 in section 216.20(e)).
The latter designated waters include all water areas enclosed by three
line segments that connect points at the 2-nm boundary between the
islands as follows: The rhumb line between (A1) 20[deg]32'51'' N./
156[deg]43'50'' W. and (A2) 20[deg]42'4'' N./156[deg]55'34'' W. between
Kahoolawe and Lanai; the rhumb line between (B1) 20[deg]51'1'' N./
156[deg]54'0'' W. and (B2) 20[deg]59'48'' N./156[deg]42'28'' W. between
Lanai and Maui; and the rhumb line between (C1) 20[deg]33'55'' N./
156[deg]26'43'' W. and (C2) 20[deg]32'15'' N./156[deg]29'51'' W.
between Maui and Kahoolawe. Throughout this rule, all coordinates are
referenced to the World Geodetic System of 1984 (WGS84).
This is inclusive of the majority of the nearshore habitats where
MHI resident stocks of spinner dolphins engage in daytime behaviors and
where dolphin-directed human activities that may result in take are
known to occur (see Rationale section below).
Applications to All Forms of Swimming and Approach
The regulations apply to all forms of swim-with and approach
activities in water and air. Forms of approaching spinner dolphins
include, but are not limited to, operating a manned or unmanned
motorized, non-motorized, self-propelled, human-powered, or submersible
vessel; operating an unmanned aircraft system (UAS) or drone; and
swimming at the water surface or underwater (i.e., SCUBA or free
diving).
Requirements of the Proposed Rule
Swim-With and Approach Regulations
The proposed rule would prohibit people from engaging in the
following activities around Hawaiian spinner dolphins:
(1) Approaching or remaining within 50 yards (45.7 m);
(2) Swimming or attempting to swim within 50 yards;
(3) Causing a vessel, person, or object to approach or remain
within 50 yards; and
(4) Intercepting, or placing a vessel, person, or other object on a
path of a spinner dolphin so that the dolphin approaches within 50
yards of the vessel, person, or object.
Exceptions
NMFS considered specific categories that should be exempt from the
regulations, which are proposed below:
(1) Any person who inadvertently comes within 50 yards (45.7 m) of
a Hawaiian spinner dolphin or is approached by a spinner dolphin,
provided the person makes no effort to engage or pursue the animal and
takes immediate steps to move away from the animal;
(2) Any vessel that is underway and is approached by a spinner
dolphin, provided the vessel continues normal navigation and makes no
effort to engage or pursue the animal;
(3) Any vessel transiting to or from a port, harbor, or in a
restricted channel when a 50-yard distance will not allow the vessel to
maintain safe navigation;
(4) Vessel operations necessary to avoid an imminent and serious
threat to a person or vessel;
(5) Activities authorized through a permit or authorization issued
by the NMFS to take spinner dolphins; and
(6) Federal, State, or local government vessels, aircraft,
personnel, and assets when necessary in the course of performing
official duties.
The exception for vessels transiting to or from ports, harbors, or
restricted channels is necessary to allow
[[Page 57861]]
continuation of safe navigation when approaching spinner dolphins
closer than 50 yards is unavoidable. For these cases, the vessel should
continue normal navigation to reduce the likelihood that close
interactions result in disturbances for an appreciable period of time.
The exception for vessel operations necessary to avoid an imminent and
serious threat to a person or vessel is needed for the safety of human
life and property, and to allow for compliance with applicable
navigation rules. The exception for government vessels, aircraft,
personnel, and assets operating in the course of official duties is
intended to avoid disruption of essential government missions,
including enforcement and national security activities. The exception
for vessels or persons engaged in an activity authorized through a
permit or other authorization issued by the NMFS to take spinner
dolphins is necessary to ensure the continued availability of
scientific research and biological data necessary to inform management
and conservation decisions related to the dolphins. We anticipate that
compliance with relevant permit terms and conditions will help minimize
the potential impacts to dolphins.
Rationale
Proposed Action--Swim-With and Approach Regulations
Hawaiian spinner dolphins resident to the MHI are made up of small,
genetically isolated stocks that exhibit a specialized behavioral
ecology that makes them easy to access in coastal environments during
their daytime resting hours. This leaves these resident stocks
vulnerable to human-caused disturbance and its effects such as habitat
abandonment or declines in reproductive success (Norris et al. 1994,
Andrews et al. 2010, Tyne et al. 2014). In the MHI, dolphin-directed
activities have increased in recent years and the public's expectation
of close interactions has placed increased pressure on resident stocks
of Hawaiian spinner dolphins and the habitats that support these stocks
(see Background above). Despite outreach, guidelines, and current
prohibitions, observations in the field indicate that MHI resident
Hawaiian spinner dolphins' natural behaviors are disrupted by
activities that include approach by both swimmers and vessels (Ostman-
Lind et al. 2004, Danil et al. 2005, Courbis 2004, Courbis and Timmel
2008), and overarching spinner dolphin group behavioral patterns may be
changing in essential daytime habitats as a result of these pressures
(Norris et al. 1994, Forest 2001, Courbis 2004, Courbis and Timmel
2008).
Observed individual dolphin responses to disturbance events when
closely approached by people and vessels include charging or threat
displays, aerial displays, and avoidance behaviors such as moving
around and away from people and vessels, or leaving the bay in response
to human pursuit (Norris et al. 1985, Norris et al. 1994, Forest 2001,
Ostman-Lind et al. 2004, Courbis 2004, Courbis and Timmel 2008).
Additionally, researchers have observed changes to behavioral patterns
in essential daytime habitats, including differences in aerial activity
(Courbis and Timmel 2008) and changes in dolphin residence time and
distribution within essential daytime habitats, that may be linked to
the intensity of human activity (Forest 2001; Danil et al. 2005;
Courbis 2004, 2007; Courbis and Timmel 2008; Ostman-Lind 2007).
Chronic disturbance can disrupt natural behavioral patterns
associated with feeding, resting, nurturing, and socializing, and
diminish the animals' ability to utilize the benefits of important
habitat, ultimately resulting in negative impacts to the fitness of
individuals and resident populations. For example, disturbance while
spinner dolphins are resting detracts from the dolphins' abilities to
recuperate from energetically demanding behaviors such as foraging,
transiting to and from offshore foraging grounds, and nurturing their
young. If these disturbances happen chronically, the lack of
consistent, undisturbed resting periods can reduce the amount of energy
available to forage and care for young. In other small cetacean
populations, chronic human disturbances have been linked to
biologically significant impacts such as reduced female reproductive
success (Bejder 2005, Lusseau and Bejder 2007).
In other locations globally, intense dolphin-directed human
activities have resulted in changes to targeted dolphin populations'
habitat use and even caused habitat abandonment (Bejder et al. 2006a,
2006b; Gannier and Petiau 2006; Nature Conservation Sector 2006;
Lusseau and Bejder 2007; Notarbartolo-di-Sciara et al. 2009). For
example, in a bay in Tahiti, spinner dolphin residence times were
negatively influenced by boat presence. Spinner dolphins often left the
bays earlier when there was an increase in boat presence, and this
increased boat disturbance may have deterred dolphins from entering the
bay the next day (Gannier and Petiau 2006). Additionally, in Samadai
Reef, Egypt, spinner dolphins were reported as noticeably distressed
from excessive numbers of visitors and people attempting to interact
with the dolphins (Notarbartolo-di-Sciara et al. 2009). The spinner
dolphin group abandoned this preferred resting area, presumably to
avoid the disturbance from vessels and visitors (Nature Conservation
Sector 2006), and did not returned to the site until after management
measures were put in place. Management measures included prohibiting
human entry into the core resting area, and restricting certain
activities in areas surrounding the core resting area to prevent
further disturbance (Nature Conservation Sector 2006, Notarbartolo-di-
Sciara et al. 2009).
Chronic disturbance of spinner dolphins in the MHI could negatively
affect the habitat use or health of resident populations. Additionally,
disturbance effects may be amplified in the MHI's resident stocks,
which exhibit high site fidelity and restricted gene flow, because the
impacts to multiple individuals' health and fitness are quickly
reflected in the overall fitness of these small populations (Bejder
2005).
The 50-yard (45.7 m) approach regulation, including prohibiting
swimming with dolphins, is intended to reduce the degree of behavioral
disruption from close approaches by vessels and swimmers, while
allowing for meaningful dolphin watching opportunities. Research
indicates that spinner dolphins exhibit changes and disruptions to
natural behaviors from close approach by swimmers (Danil et al. 2005,
Courbis and Timmel 2008) and that swimmer presence within 150 m reduces
the likelihood of spinner dolphins being in a resting state (Symons
2013, Johnston et al. 2014). Approach by vessels and watercraft have
also been shown to disrupt and alter spinner dolphin behavior (Ross
2001, Forest 2001, Timmel et al. 2008). In the MHI, several studies
note that close approach by vessels disrupt dolphin behaviors at
various distances ranging from 10 m to 300 m (Forest 2001, Timmel et
al. 2008). At Midway Atoll in the Northwestern Hawaiian Islands, Ross
(2001) found that spinner dolphins were affected by vessel presence at
distances as great as 500 m and that the effects increased as the
distance decreased. Although Johnson et al.'s (2013) work in the MHI
found the likelihood that dolphins were resting was higher when vessels
were present between 50 and 150 m, they noted that these results may be
influenced by the fact that vessels were present in proximity to the
dolphins most of the time.
[[Page 57862]]
We have considered multiple distances that may provide protections
for spinner dolphins from human activities that result in take (such as
swimming with and approaching dolphins), including 50 yards, 100 yards
(91.4 m), or even greater distances. NMFS believes that 50 yards is the
minimum distance that will prevent most forms of take, while also
providing the public with sufficient opportunity to tailor their
conduct to avoid disruptive encounters with spinner dolphins. We
already recommend this distance (50 yards) in our wildlife viewing
guidelines and request that people do not swim-with wild dolphins to
reduce the risk of behavioral disruption from close encounters. These
guidelines are recognized by tour operators and are used by some (e.g.,
Dolphin SMART operators) to help ensure that spinner dolphins are
viewed responsibly.
A 100-yard approach restriction exists for humpback whales and this
distance was also considered for reducing take of spinner dolphins.
Spinner dolphins are fast-moving, small cetaceans and groups of
dolphins may move through areas changing directions throughout the day.
A distance restriction of 100 yards provides more space for these
animals to move back and forth, and helps ensure that people and
vessels have sufficient opportunity to maintain an appropriate distance
to avoid take. A 100-yard approach restriction might also be easier for
vessel operators to recognize and achieve, as this distance applies to
humpback whales. However, approach regulations at a distance greater
than 50 yards may be difficult for recreational swimmers to recognize
and achieve in the water. Based on the best scientific information
available, it is difficult to determine a precise distance beyond which
human activity does not have the potential to cause disturbance by
disrupting natural behaviors. However, we recognize that not all
approaches within 100 yards result in take, and we are concerned that
such a prohibition may unnecessarily burden the public, without
necessarily achieving the purposes of this rulemaking. Further, this
greater distance may diminish both the experience of dolphin watching
and opportunities to participate in dolphin watching, because these
animals are small and may be difficult to spot at a distance. NMFS
recognizes that the dolphin watching industry is important to Hawaii's
economy, and that these tours have the ability to inform the public
about dolphins and to foster stewardship. To reduce the threat of take
occurring (including harassment and disturbance) when swimmers and
vessels closely approach dolphins, to remain consistent with the
current recommended approach guideline for the region, and to allow for
continued dolphin watching opportunities at safe distances, NMFS is
proposing a distance of 50 yards for swim-with and approach
restrictions.
The proposed swim-with and approach regulations prevent a range of
human activities that occur in close proximity to Hawaiian spinner
dolphins. This includes swimming-with spinner dolphins, touching or
attempting to touch spinner dolphins; corralling or herding spinner
dolphins into small areas; and leap-frogging, all of which have the
potential to disturb the dolphins and result in take. Implementation of
these prohibitions would include enforcement by NMFS and DLNR Division
of Conservation and Resource Enforcement (DOCARE) personnel, and
outreach by NMFS staff and volunteers who would assist with an
informational campaign about the new regulation and the scientific
information on which it is based. This proposed rule provides new tools
for enforcement that are measurable, easy to understand, and based on
the best available science regarding human impacts on spinner dolphins.
To limit some potential impacts to the public from these regulations,
we propose exceptions that are designed to allow for transit into and
out of ports, harbors, and restricted channels; public safety measures;
avoidance of penalties when the animal has closely approached a boat or
person; and continuation of essential government and permitted
activities (see Exceptions section above). The DEIS contains a full
analysis of a No Action Alternative, other alternatives, and the
Preferred Alternative.
The costs of implementing human and vessel regulations to protect
the dolphins are expected to be low. Some will be borne by the
commercial dolphin watch and dolphin swim industry, dolphin-associated
spiritual retreats, and other generalized nature tours (see the DEIS
and the Regulatory Flexibility Act section below for more information).
While some dolphin watch companies and community members have suggested
that restricting swimming with the dolphins or closely approaching them
may affect revenue, surveys of tour participants indicate that close
approach of the dolphins may not be the most important aspect for the
dolphin watching participants, and that participants will support
viewing these animals in a manner that reduces the potential for
disruptive encounters with dolphins (Wiener 2015). Other impacts to
boaters, swimmers, kayakers, and others who are not engaged in dolphin-
directed activities are expected to be minor and include slight changes
to operations to comply with the proposed regulations.
The reduction in disturbance to Hawaiian spinner dolphins, as
addressed through each element of the rule as described above, provides
a benefit to the dolphins as well as to members of the public who value
the dolphins. Reducing threats to the dolphins also supports the long-
term sustainability of the responsible dolphin watching industry.
Geographic Scope (Distance From Shore)
The proposed regulations are designed to address dolphin-directed
activities that are resulting in various forms of take of Hawaiian
spinner dolphins. NMFS selected 2 nm (3.7 km) from shore around the MHI
as well as designated waters between the islands of Lanai, Maui, and
Kahoolawe as the boundary for the proposed prohibitions because this
range encompasses the areas where current and best available
information indicates that most dolphin-directed activities are likely
to be concentrated. NMFS gathered information from scientific
literature about Hawaiian spinner dolphin daytime habitat preferences
and information from over 400 sightings of spinner dolphins collected
around the MHI since 1992 from various members of the Pacific Islands
Photo Identification Network (PIPIN) to determine where resident
spinner dolphins are likely to occur during the day. Dolphin-directed
activities in Hawaii are concentrated in the nearshore portion of the
island-associated Hawaiian spinner dolphin stocks' ranges because these
stocks are easily accessed in coastal waters during the day when most
people seek out marine recreational activities.
Daytime habitat for Hawaiian spinner dolphins varies across the
MHI, because the bathymetry, or depths and shapes of underwater
terrain, is different for each island, and spinner dolphins seek out
areas with physical and biological characteristics that support their
ecological needs (see Background section). On Hawaii Island, Norris et
al. (1994) indicate that spinner dolphins generally prefer areas with
depths of less than 50 m for engaging in resting activities, and Thorne
et al. (2013) note that resting habitats generally occur in close
proximity to the 100-m contour (close to the inshore extent of prey
species at night). Spinner dolphins are
[[Page 57863]]
also known to transit along Hawaii Island's coastline, moving between
resting areas during the day. Lammers et al. (2004) indicate that
Oahu's spinner dolphins show a strong affinity for the 10-fathom
isobath (18.3 m), and note that approximately 93 percent of sightings
off Waianae and 81 percent of sightings off the south shore of Oahu
occurred at depths shallower than 17 fathoms (31.1 m). Lammers et al.
(2004) also note that foraging activities begin by evening around the
100-fathom isobath (182.9 m) off Oahu. Information received from PIPIN
indicates that approximately 89 percent of spinner sightings across the
MHI were in waters within the 100-m depth contour and that 95 percent
were in waters within the 200-m depth contour, although spinner
dolphins have been observed in waters during the day where depths are
as great as 3,000 m (NMFS 2016).
In reviewing this information, we determined that selecting a
boundary based on depth in any particular area may be difficult for
people to identify without having access to proper instrumentation
(which would be especially difficult for kayakers, standup
paddleboarders, and swimmers), and that the distance from shore may
provide a more easily discerned boundary. In addition, although spinner
dolphin daytime habitat may be located at different distances from the
shoreline of different islands, establishing different prohibitions
based on the location of these daytime habitats (e.g., having
restrictions out to 1 nm (1.9 km) or 2 nm depending on the island)
could subject the public to inconsistent and confusing requirements,
and complicate both enforcement of and compliance with these
regulations. This could be particularly difficult in areas where
multiple islands are visible and the restricted distances differ around
different islands. Therefore, we evaluated consistent distances from
shore across the MHI.
We reviewed the habitat preferences and sighting information as it
relates to distance from shore to identify a boundary that would be
easy for people to recognize and would incorporate the best available
information about spinner dolphin habitat preferences and sighting
information. Along the west coast of Hawaii Island, habitats that are
50 m or less in depth and where dolphin-directed activities are
prevalent, are encompassed within 1-1.5 nm (1.9-2.8 km) from shore.
Habitats within 100 m depth fall almost entirely within 2 nm of shore,
and at 3 nm (5.6 km) these areas are entirely included. Off the west
coast of Oahu, where most dolphin-directed activities on this island
occur, the 10-fathom (18.3 m) isobath is largely captured within 1 nm
of shore, while 17 fathoms (31.1 m) is largely captured within 1.5 nm.
Habitats of these depths extend out farther on the south shore where
spinner dolphins are also known to rest; these habitats are largely
captured within 1.5 and 2 nm from shore respectively. The 100-fathom
(182.9 m) contour is largely captured within 1.5 nm on the west side of
the island, but extends out past 3 nm on the south shore. Little
information is available from the other MHIs regarding specific depth
preferences, although there are areas where the 50- and 100-m depth
contours extend past 4 nm (7.4 km). Off most of the MHI, a large
majority of the PIPIN sighting information is captured within 2 nm from
shore.
A key area for spinner dolphin sightings during the day, where the
depth contour extends out past 4 nm, is between the islands of Lanai,
Maui, and Kahoolawe. This area is traversed by many recreational and
commercial tour vessels in search of marine mammal viewing
opportunities throughout the day. Consequently, spinner dolphins also
require protections in this area. To ensure that dolphins are protected
throughout the day where they may transit between islands and encounter
dolphin-directed activities, we delineated an area around all three
islands that includes the 2-nm buffer around the outside of each island
and the channels and waters between these islands. This delineated area
includes 96 percent of all PIPIN sighting information across the MHI.
We are proposing this action to reduce the threat of take of
Hawaiian spinner dolphins (including harassment and disturbance) caused
by dolphin-directed activities that are concentrated in coastal waters
of the MHI and to reduce the impact of increased viewing and
interactions pressures on MHI resident stocks. We do not expect that
these same pressures are prevalent in the outer portions of the MHI
stocks' ranges, because these spinner dolphins are not easily accessed
when they are offshore. Therefore, the proposed rule applies to an area
within 2 nm of the MHI and in designated waters between the islands of
Lanai, Maui, and Kahoolawe. This area encompasses the majority of the
resident stocks' daytime habitat, thereby incorporating the area where
spinner dolphins are easily accessed and where take of Hawaiian spinner
dolphins is most likely to occur.
Additional Measures Under Consideration: Time-Area Closures
Although not currently proposed, we are also considering and
seeking public comment on whether additional management measures
(beyond swim-with and approach regulations) may be necessary and
appropriate to protect Hawaiian spinner dolphins from take, especially
in essential daytime habitats targeted by humans for dolphin-directed
activities. At this time, we believe that the swim-with and approach
regulations alone will provide sufficient protection to Hawaiian
spinner dolphins, by reducing close encounters between spinner dolphins
and humans that result in take. We also expect that the swim-with and
approach regulations will reduce the intensity of activities within
essential daytime habitats that are targeted by people for dolphin-
directed activities to some degree. However, NMFS recognizes that the
intensity of activity in some of these areas is high and that
additional measures could be necessary.
Area closures have been shown to be an effective management tool
for addressing the intensity of wildlife viewing and interaction in
other areas globally (Notarbartolo-di-Sciara et al. 2009, Nature
Conservation Sector 2006). Area closures provide members of the public
with precise boundaries so that they may readily tailor their conduct
accordingly. However, area closures can also carry undesired costs,
such as by imposing a burden on the public when spinner dolphins are
not present. We are mindful of this potential and believe a careful
approach is warranted. By first implementing swim-with and approach
regulations, we expect to reduce take of Hawaiian spinner dolphins
resulting from interactions with swimmers and vessels. We also expect
to gather additional information about the effectiveness of these
measures. Should this action's swim-with and approach regulations
provide insufficient protection for Hawaiian spinner dolphins using
essential daytime habitats, we would consider additional conservation
and management measures, including time-area closures, to reduce take
in high intensity areas. Below we discuss two management options that
are analyzed in the DEIS. We invite public comment about whether and at
what point these management options or others may be necessary and
appropriate to protect Hawaiian spinner dolphins from take.
Two possible management options evaluated in the DEIS would create
either mandatory (see Alternative 4 in the DEIS) or voluntary (see
Alternative
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5 in the DEIS) time-area closures in five essential daytime habitats,
in addition to the swim-with and approach regulations. We selected the
five areas for potential time-area closures using a step-down process.
In this approach, we identified important habitats that might benefit
from additional protection, and then considered additional factors that
may promote or obstruct the effectiveness of the closure. (See Appendix
A of the DEIS for more detail.) The five sites are essential daytime
habitats where human activities are largely Hawaiian spinner dolphin-
directed, where closures are logistically feasible, and where
regulatory measures can be balanced most effectively with human ocean
use to protect these dolphins. Once the sites were selected for time-
area closures, we delineated core areas within each of the five sites
where spinner dolphins are most often engaged in resting activities.
The core areas would be subject to closure, while leaving other areas
of the bays open in order to minimize impacts on other human activities
(e.g., snorkeling, surfing).
As noted in the SAPPHIRE Project section above, essential daytime
habitats are particularly important to island-associated spinner
dolphins because the habitats provide environmental characteristics
that support the dolphins' ability to minimize travel to offshore food
sources and to detect predators (Norris and Dohl 1980, Norris et al.
1994, Thorne et al. 2012). Tyne et al. (2014) reported that spinner
dolphins off the island of Hawaii are most likely to rest while inside
these habitats that support predator detection and noted that dolphins
using these areas off the west coast of Hawaii are experiencing human
activities within 100 m over 80 percent of the time. Chronic wildlife
disturbance within important habitats may lead to habitat abandonment
and/or negatively impact the health of individual dolphins, ultimately
leading to population level impacts (Frid and Dill 2002, Bejder 2006).
Additional management in these areas may be important to ensure that
Hawaiian spinner dolphins are given sufficient space for groups to
engage in deep resting behaviors that allow dolphins to recuperate from
other energy demanding activities, such as foraging.
For time-area closures we are considering a closure time of 6 a.m.
to 3 p.m. This time-period would allow spinner dolphins to enter
essential daytime habitats without disturbance and remain in these
areas undisturbed during peak resting hours, while allowing for human
activities to occur (at a distance greater than 50 yards (45.7 m) in
accordance with the approach regulations) after 3 p.m. Historic spinner
dolphin resting times (before human interactions were likely a major
factor in the dolphins' resting patterns) were observed to occur
between dawn and dusk (Norris and Dohl 1980), and research indicates
that Hawaiian spinner dolphin resting behavior still occurs throughout
daytime hours (generally 6 a.m. to 6 p.m.) with the highest resting
activity occurring between 10 a.m. and 2 p.m. (Tyne et al. 2015).
Nevertheless, some Hawaiian spinner dolphin groups have been deterred
from entering their essential daytime habitat if human presence in the
area was too high early in the day (Danil et al. 2005). Preventing
disturbance in these habitats during early morning hours is important
to support spinner dolphins' arrival to the essential daytime habitat
and their descent into rest. The late afternoon hours are considered a
time of transition and described as a time when the dolphins rally
together and engage in zig zag movements as they are waking from their
deep rest, prior to moving offshore to their foraging grounds (Norris
et al. 1994). However, the afternoon hours are also a popular time for
human recreational use. Because the swim-with and approach regulations
would provide a measure of protection for spinner dolphins as they
increase activity toward the end of their resting period, we would end
the closure time at 3 p.m. Swim-with and approach regulations would
continue to provide a buffer of protection to the dolphins at the end
of their peak resting times, while also allowing some of these human
activities to occur for a limited time period.
For either mandatory or voluntary closure options, the closure
areas would be marked using buoys, sight-line markers, and landmarks
from shore, and explanations of the closure's purpose and effective
hours would be provided by signs on land and through other public
outreach efforts. The intent of both mandatory and voluntary closures
would be to prevent take by eliminating the intense human activity
within essential daytime habitats during important resting times. These
closures would allow for increased opportunities for spinner dolphins
to engage in fitness-enhancing behaviors in the absence of vessels and
people.
The bays identified for the mandatory and voluntary time-area
closure options are (1) Makako Bay, (2) Kealakekua Bay, (3) Honaunau
Bay, and (4) Kauhako Bay on the island of Hawaii, and (5) La Perouse
Bay on the island of Maui. Below we describe the areas delineated for
the time-area closures; these areas are also depicted in Figures 1-5 of
this preamble.
Makako Bay. The lines between points A, B, C, and D shown in Figure
1 illustrate the marine boundaries for the time-area closure for Makako
Bay; the shoreline boundary is at the mean lower low water line
(meaning activities could occur in the intertidal zone) between points
A and D. The following geographic coordinates provide the approximate
location for each point in Figure 1: A) 19[deg]44'21.61'' N.,
156[deg]3'16.37'' W.; B) 19[deg]44'25.18'' N., 156[deg]3'26.07'' W.; C)
19[deg]44'2.16'' N., 156[deg]3'35.51'' W.; and D) 19[deg]43'57.31'' N.,
156[deg]3'23.04'' W. Two buoy markers would be placed at points B and C
aligned with site line markers on shore at points A and D to delineate
the closure area (Figure 1). The closure encompasses approximately 0.14
mi\2\ (0.36 km\2\) of essential daytime habitat used by Hawaiian
spinner dolphins. These coordinates, and coordinates for the other
time-area closures, are considered approximate because the exact
locations would not be specified until the buoy anchoring system is
identified and an underwater survey is completed.
No public access point from shore is identified by the County of
Hawaii for Makako Bay. The closest access points are identified south
at Wawaloli Beach, with another access point identified North at
Keahole Point.
Kealakekua Bay. The lines between points A, B, C, and D shown in
Figure 2 illustrate the time-area closure for Kealakekua Bay. The
following geographic coordinates provide the approximate location for
each point in Figure 2: A) 19[deg]28'37.82'' N., 155[deg]55'15.03'' W.;
B) 19[deg]28'54.23'' N., 155[deg]55'44.90'' W.; C) 19[deg]28'48.42''
N., 155[deg]55'49.04'' W.; and D) 19[deg]28'32.19'' N.,
155[deg]55'19.20'' W. The closure area would be delineated by means of
six marker buoys--one located at each corner and one located at the
middle of each of the lengthwise boundaries. Informational signs would
be placed on shore to inform the public of the closure areas. The
closure encompasses approximately 0.08 mi\2\ (0.21 km\2\) of essential
daytime habitat used by Hawaiian spinner dolphins.
The County of Hawaii identifies two public access points on Boulder
Beach and Napoopoo Landing at Kealakekua Bay; both points would remain
open for access. Additionally, the route used by kayakers to access the
Captain Cook Monument at Kaawaloa from Napoopoo Pier is located outside
of the closure
[[Page 57865]]
area. A line on the map going across the bay depicts this route.
Honaunau Bay. The lines between points A, B, and C shown in Figure
3 illustrate the marine boundaries for the time-area closure for
Honaunau Bay; the shoreline boundary is at the mean lower low water
line (meaning activities could occur in the intertidal zone) between
points A and C. The following geographic coordinates provide the
approximate location for each point in Figure 3: (A) 19[deg]25'27.13''
N., 155[deg]54'41.65'' W.; (B) 19[deg]25'21.41'' N., 155[deg]54'58.17''
W.; and (C) 19[deg]25'31.99'' N., 155[deg]54'58.24'' W. The closure
site at Honaunau would be delineated by means of a single marker buoy
at point B to accommodate local native Hawaiians' requests to honor the
sacred nature of this cultural site, and would be aligned with site
line markers on shore at points A and C (Figure 3). Informational signs
would be placed on shore to inform the public of the closure areas. The
closure encompasses approximately 0.04 mi\2\ (0.10 km\2\) of essential
daytime habitat used by Hawaiian spinner dolphins.
The County of Hawaii identifies Honaunau Bay boat ramp as a public
access area for this bay. The boat ramp and the popular access point
for swimming and snorkeling known as Two-Step are located outside of
the closure area, and would remain open for everyday use.
Kauhako Bay. The lines between points A, B, and C shown in Figure 4
illustrate the marine boundaries for the time-area closure for Kauhako
Bay; the shoreline boundary is at the mean lower low water line
(meaning activities could occur in the intertidal zone) between points
A and B. The following geographic coordinates provide the approximate
location for each point in Figure 4: (A) 19[deg]37'86.15'' N.,
155[deg]89'68.10'' W.; (B) 19[deg]37'91.79'' N., 155[deg]89'95.98'' W.;
and (C) 19[deg]37'04.02'' N., 155[deg]89'70.41'' W. A single marker
buoy would be placed approximately 35 m from shore to delineate the
inner bay closure boundary. Sight line markers at each of the points A,
B and C (Figure 4), and two buoys placed along the offshore boundary
(line B-C) would delineate the closure area at this bay. Informational
signs would be placed on shore to inform the public of the closure
areas. The closure encompasses approximately 0.087 mi\2\ (0.18 km\2\)
of essential daytime habitat used by Hawaiian spinner dolphins.
The County of Hawaii identifies Hookena Beach Park as a public
access point for this area. The nearshore area located inshore of the
line between points A and B would be open for everyday use, including
swimming, snorkeling, and freediving.
La Perouse Bay. The lines between points A, B, C and D shown in
Figure 5 illustrate the marine boundaries for the time-area closure for
La Perouse Bay; the shoreline boundary is at the mean lower low water
line (meaning activities could occur in the intertidal zone) between
points A and C, and between B and D. The following geographic
coordinates provide the approximate location for each point in Figure
5: (A) 20[deg]35'56.90'' N., 156[deg]25'17.04'' W.; (B)
20[deg]35'25.68'' N., 156[deg]24'44.72'' W.; (C) 20[deg]35'39.30'' N.,
156[deg]25'33.85'' W.; and (D) 20[deg]35'10.98'' N., 156[deg]24'50.90''
W. A single marker buoy would be placed approximately 100 m offshore of
the most popular snorkeling entry point to delineate the nearshore
boundary line, with three buoys placed along the offshore boundary line
(line C-D) to delineate the outer closure boundary. Shore-based markers
at points A, B, C, and D would provide a sightline. Informational signs
would be placed on shore to inform the public of the closure areas. The
closure encompasses approximately 0.32 mi\2\ (0.83 km\2\) of resting
habitat used by Hawaiian spinner dolphins.
Maui County identifies La Perouse as a public access point for this
area (coordinates: 20[deg]36'09.66'' N., 156[deg]25'22.48'' W.). The
area inshore of the line between A and B, which includes this access
point, would remain open for everyday uses such as surfing, snorkeling,
and freediving.
Activities occurring in the intertidal zone (the area that is above
water at low tide and under water at high tide), such as shore-based
fishing and subsistence gathering, would be able to continue during any
time of day in either type of closure.
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Mandatory Time-Area Closures and Swim-With and Approach Regulations
Although not currently proposed, if we were to implement mandatory
time-area closures in addition to promulgating swim-with and approach
regulations (described under Alternative 4 in the DEIS), we would
create the time-area closures (depicted in Figures 1-5 above) and
promulgate regulations that prohibit use of waters within the five
delineated areas from 6 a.m. to 3 p.m.. All Exceptions (see section
above) described for the proposed swim-with and approach regulations
would apply to this alternative, and the following three additional
exceptions would also apply to the mandatory time-area closures:
(1) Vessels that transit the time-area closure for the sole purpose
of ingress and egress to privately-owned shoreline residential property
located immediately adjacent to the time-area closure;
(2) Vessels participating in organized community-based outrigger
canoe races that transit straight through a time-area closure; and
(3) Vessels that transit straight through the time-area closure for
the purpose of traditional subsistence fishing where harvested
resources are intended for personal, family, or community consumption
or traditional use and not for commercial market sale.
Entering mandatory time-area closures during closed periods would
result in a violation unless an exception to the rule applies.
Mandatory time-area closures would prevent take within these
important areas and ensure that spinner dolphins are provided space to
achieve deep rest during the day. Additionally, regulations to impose
these closures would provide a strong tool for enforcement that is
measurable and easy to understand, promoting both enforcement and
compliance. Under this management option, swim-with and approach
regulations would reduce disturbance to Hawaiian spinner dolphins from
close approach activities throughout nearshore areas, and mandatory
time-area closures would provide additional protection by reducing the
intensity of viewing pressure in five essential daytime habitats.
Voluntary Time-Area Closures and Swim-With and Approach Regulations
Although not currently proposed, if we were to implement voluntary
time-area closures in addition to promulgating swim-with and approach
regulations (Alternative 5 in the DEIS), we would demarcate the same
five areas for voluntary time-area closures as are described for the
mandatory closures (see Mandatory Time-Area Closures with Swim-with and
Approach Regulation above). Through outreach, we would ask the public
to refrain from using waters within the five delineated areas from 6
a.m. to 3 p.m. Participation in the time-area closures would be
voluntary, and no penalties would apply to people or vessels that enter
the areas during designated spinner dolphin resting times. The
voluntary time-area closures would not apply to any activity that falls
within the Exceptions (see above) described for the swim-with and
approach regulations, or the three additional exceptions described for
the mandatory time-area closures option (see three exceptions in the
Mandatory Time-Area Closures and Swim-with and Approach Regulations
section above). Under this alternative, compliance with the time-area
closure would be voluntary.
Success with voluntary measures requires strong community
engagement and support. Ideally, conservation benefits for Hawaiian
spinner dolphins would be the same for mandatory and voluntary closures
because both management measures demarcate space
[[Page 57871]]
for Hawaiian spinner dolphins to engage in resting behaviors. However,
we expect that compliance with voluntary measures would be generally
lower than compliance with regulations that are enforced (May 2005),
and within the five bays, resource users are diverse and have varying
motivations and beliefs with regard to Hawaiian spinner dolphin
conservation. The lack of a common understanding about the value of
these conservation measures may make it difficult to achieve voluntary
compliance for the closures. Further, inconsistent compliance with
voluntary measures could lead to increased tension between resource
user groups that have conflicting views about Hawaiian spinner dolphin
conservation.
Additional Measures Eliminated From Consideration
NMFS did not propose some of the regulatory options suggested in
the ANPR and in public comments for several reasons, including the
measures' inability to meet the purpose and need for this rulemaking
(see the DEIS for more detail), difficulties in enforcing them, changes
to infrastructure needed to implement them, lack of effectiveness of
the measures, lack of resources available to institute them, and the
complexity associated with complying with the measures. For example, a
permit certification program for all marine operators that engage in
some form of dolphin viewing would be inappropriate for addressing
chronic and concentrated viewing practices, would require a large
processing infrastructure to implement throughout the Hawaiian Islands,
and would not address disturbance caused by vessels that are not
conducting dolphin tours (e.g., recreational vessels or kayaks).
Another suggestion, implementing full closures of all identified
resting habitats throughout the Hawaiian Islands, would create many
restrictions on activities that are not dolphin-directed, obstruct some
harbors, be costly, and require a larger infrastructure to institute
and enforce. We discuss these and other regulatory options suggested in
public comments in the DEIS for this action.
Public Comments
We are soliciting comments on any aspect of these proposed swim-
with and 50-yard (45.7 m) approach regulations. As explained above,
NMFS does not propose to implement mandatory or voluntary time-area
closures as part of this rulemaking. At this time, NMFS believes that
the proposed swim-with and approach regulations will provide adequate
protection to spinner dolphins against take, including harassment and
disturbances. Should NMFS determine that swim-with and approach
regulations provide insufficient protection for Hawaiian spinner
dolphins using essential daytime habitats, we would consider additional
conservation and management measures, including time-area closures to
reduce take in high intensity areas, in a separate rulemaking.
We are particularly interested in comments concerning the
following: (1) Effects of the increasing number of human interactions
with Hawaiian spinner dolphins; (2) proposed prohibited and exempted
activities; (3) whether 50 yards is the most appropriate distance for
swim-with and approach restrictions to reduce take of spinner dolphins;
(4) whether 100 yards (91.4 m) or another distance is the most
appropriate distance for swim-with and approach restrictions to reduce
take of spinner dolphins; (5) research recommendations and priorities
for better understanding how human disturbance affects Hawaiian spinner
dolphins; (6) information on responsible viewing of marine mammals; (7)
additional information on spinner dolphin behaviors; (8) other human
activities affected by the proposed rule that were not discussed; (9)
the temporal and geographic scope (i.e., 2 nm from shore) of the
approach regulation; (10) whether the area where the approach
regulation is proposed in the Lanai- Maui-Kahoolawe triangle is
adequate and appropriate; (11) whether time-area closures are necessary
to address the intensity of Hawaiian spinner dolphin-directed
activities in some areas; (12) the effectiveness of mandatory versus
voluntary closures; (13) the bays and times of day identified for time-
area closures; (14) information about other areas where Hawaiian
spinner dolphins may face pressures from human viewing and interaction;
and (5) suggestions on other areas that should be considered for time-
area closures.
Please be aware that all comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information, or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous).
References Cited
A complete list of all references cited in this proposed rule can
be found on our Web site at: http://www.fpir.noaa.gov/PRD/prd_spinner_EIS.html, or at www.regulations.gov, and is available upon
request from the NMFS office in Honolulu, Hawaii (see ADDRESSES).
Classification
National Environmental Policy Act (NEPA) and Regulatory Impact Review
(RIR)
NMFS has prepared a DEIS and an RIR pursuant to NEPA (42 U.S.C.
4321 et seq.) and Executive Order (E.O.) 12866, to support this
proposed rule. The DEIS/RIR contains a full analysis of a No Action
Alternative, five action alternatives, and the Preferred Alternative
that we are proposing. There are a number of elements that were common
to all of the action alternatives analyzed, including the preferred
alternative proposed in this notice, and a number of exceptions that
would apply to these alternatives. The DEIS/RIR and supporting
documents are available for review and comment and can be found on the
NMFS Pacific Islands Region Web site at http://www.fpir.noaa.gov/PRD/prd_spinner_EIS.html.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a Regulatory Flexibility Analysis describing the effects
of the rule on small entities, i.e., small businesses, small
organizations, and small government jurisdictions.
Pursuant to the RFA, NMFS prepared the following Initial Regulatory
Flexibility Analysis (IRFA). A description of the action, why it is
being considered, and the legal basis for this action are contained in
the preamble to this proposed rule. This proposed rule does not
duplicate, overlap, or conflict with other Federal rules. The analysis
contains a description of and, where feasible, an estimate of the
number of, small entities to which the proposed rule will apply. The
Small Business Administration (SBA) establishes criteria for defining a
``small entity'' for purposes of the RFA. This IRFA analyzes the
proposed alternatives and other alternatives described in the preamble
to the rule, and does not
[[Page 57872]]
address alternatives previously considered and subsequently dismissed
in the DEIS. There are no record-keeping or reporting requirements
associated with this proposed rule.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rule Applies
There are several types of industries directly affected by this
proposed rulemaking: Swim-with-wild-dolphins tour operators; dolphin
watch tour operators; non-motorized vessel ocean wildlife viewing tour
operators; and generalized commercial boat tour operators. This
analysis uses size standards prescribed by the SBA. Specifically, for
scenic and sightseeing water transportation operators (North American
Industry Classification System Code 487210), the SBA size standard for
a small business is average annual receipts of $7.5 million or less.
Much of the background information for potentially affected entities is
based on a 2007 report that summarized surveys and other information
collected in 2006 with regard to participants within these industries
that potentially interact with Hawaiian spinner dolphins to varying
degrees in the MHI (Impact Assessment 2007). The report provides
information that suggests that all businesses operating in the swim-
with-wild-dolphins tour and the kayak tour industries operating in 2006
could be considered small entities, and all but one of the generalized
commercial boat tour operators were assumed to be small entities
(Impact Assessment 2007). This is the most recent information available
to NMFS regarding revenue information, but NMFS notes that the
composition of these vessel-based tour industries, including the number
which can be considered small entities and the total number, may have
changed since the report was written.
Swim-with-wild-dolphins tour operators are those that bring
clientele into close proximity with spinner dolphins. This includes
health and/or spiritual retreat operations as well as dolphin-oriented
swim tours. Health and spiritually-linked businesses provide
opportunities for persons wishing to interact with spinner dolphins for
perceived physical, mental, and/or spiritual well-being enhancement.
Spiritually-linked tour operations may charter vessels through other
established dolphin-swim companies to transport customers as part of an
overall per-person package consisting of lodging, swimming with
dolphins, and other activities. For spiritual retreats that offer
dolphin swims, the number of businesses is estimated to be as follows:
Hawaii (22), Maui (7), Oahu (1), and Kauai (2+).
Dolphin-oriented swim tours operate by transporting passengers by
boat or having them swim from shore to areas in which dolphins are
known to be present during daytime hours. Customers may also be
provided with facemasks, fins, floatation devices, and snorkels to
enhance viewing. Recent information compiled by NMFS suggests that the
number of swim-with-dolphins tour companies is as follows: Hawaii (22),
Maui (2), Oahu (10), and Kauai (1). All are believed to be small
entities.
Dolphin-watch tour operators involve taking clients out
specifically to view wild dolphins. These companies tend to operate
smaller boats than the more generalized commercial boat tours described
below, and are more likely to view dolphins at a closer range. Revenue
information for this specific business category is not available. NMFS
estimates the number of dolphin watch tour businesses to be as follows:
Hawaii (3), Maui (21), Oahu (3), and Kauai (11).
More generalized commercial boat tours offer a range of ocean
activities, which may include sightseeing, snorkeling, diving, viewing
various forms of sea life from a vantage point in and/or above the
water, or just generally spending time on the ocean. The majority of
the general tour boats derive revenue from whale watching and
sightseeing operations, while a number of the dive/snorkel vessels
offer snorkeling or diving trips. Based on recent information collected
by NMFS, the estimated number of generalized commercial boat tour
businesses reportedly involving indirect dolphin interaction is
estimated as follows: Hawaii (10), Maui (19), Oahu (36), and Kauai
(12). NMFS believes that most, but not all, would be considered small
entities.
Non-motorized vessel ocean wildlife viewing tour operators,
specifically kayak tour businesses around the MHI, provide a general
wildlife viewing experience, with a very small number of operators
advertising direct or intentional interactions with dolphins. The
number of kayak tour operators who advertise the opportunity to
directly interact with wild dolphins is not available. NMFS estimates
the numbers of companies that either operate kayak tours or rent out
kayaks to be as follows: Hawaii (6), Maui (9), Oahu (6), and Kauai
(13).
The estimated numbers of small entities directly affected by the
proposed rulemaking, by industry, on the MHI are as follows: 67 swim-
with-wild-dolphins tour operators (including health and/or spiritual
retreats enabling opportunities to swim with wild dolphins), 77
generalized commercial boat tour operators (one or more of which are
likely to be considered large entities), and 34 kayak tour and rental
companies.
Economic Impacts to Small Entities Resulting From the Proposed Action
(Swim-With and 50-Yard Approach Regulations)
The preferred alternative would restrict all activities associated
with close approach to Hawaiian spinner dolphins, including swimming
with dolphins and close approach by vessel. These prohibitions would be
applicable within 2 nm (3.7 km) of each of the MHI and in designated
waters between the islands of Lanai, Maui, and Kahoolawe.
The proposed action to ban swimming and approaching within 50 yards
(45.7 m) of Hawaiian spinner dolphins, has the potential to eliminate
all commercial activities that result in take of spinner dolphins
(e.g., swim-with-wild-dolphins) at a close distance. Therefore,
implementing this proposed action would require operators that
currently offer the opportunity to swim with spinner dolphins to cease
this specific activity, although they may choose to continue to provide
other services among their menu of options. For example, a spiritual
retreat that offers a menu of other activities along with swim-with-
wild-dolphins activities may continue to offer the other activities. In
addition, swim-with-wild-dolphins tour operators may choose to
transition to operate as a dolphin-watching or generalized tour vessel
operation. For these businesses, eliminating opportunities to swim with
wild spinner dolphins within 50 yards is likely to result in a
reduction in revenue in the short term and potentially in the long
term. The decrease in revenue could come from the reduction in the
number of customers, specifically those who seek the experience of
swimming with spinner dolphins, and/or reduced trip or package prices
with a reduced menu of options available for each trip. The loss in
overall revenue to individual businesses and the industry as a whole
that rely on close approach with spinner dolphins by any means for
revenue is uncertain. The same is true with regard to the number of
businesses that would be still be able to remain in operation if the
proposed regulation is implemented.
Commercial wildlife boat tour operators, including generalized
commercial boat tour operators, dolphin
[[Page 57873]]
watch tour operators, and non-motorized vessel tour operators, would no
longer be able to take customers to view Hawaiian spinner dolphins from
closer than 50 yards. Restricting operators from approaching within 50
yards of spinner dolphins may reduce demand for vessel-based tours
among customers who specifically hope to view dolphins from a vessel at
a closer range, although there will be no options other than not taking
a tour at all, as no boats in Hawaii would be able to offer tours
closer than 50 yards. Some tour operators may be able to offer
alternative recreational opportunities or amenities as part of a tour
to help offset any loss in demand for tours. For generalized tour boat
operators with a clientele base that does not have a specific goal of
viewing spinner dolphins, the direct economic impact of the proposed
action is likely to be minimal.
NMFS concludes that there would be disproportionate impacts to the
swim-with-wild-dolphin tour operators from implementation of this
preferred alternative relative to all other general wildlife viewing
tour operators. Similarly, because of the focus of activities, it is
also likely that the dolphin watch tour industry will face greater
impacts than the generalized wildlife tour companies. As a result,
dolphin-watch tour entities may face disproportionate impacts relative
to the generalized commercial boat tour companies, which are likely to
incur few direct economic impacts from the proposed action. We note
that dolphin watch tour entities are all believed to be small entities,
and most of the generalized commercial boat tour companies are as well,
although a few might be considered large entities with revenues
exceeding $7.5 million.
NMFS considered other alternatives in addition to the swim-with and
50-yard approach regulations in this proposed rule (i.e., Alternative
3a). These include 1) no action; 2) swim-with regulations; 3b) swim-
with and 100-yard (91.4 m) approach regulations; 4) mandatory time-area
closures and swim-with and approach regulations; and 5) voluntary time-
area closures and swim-with and approach regulations. As is the case
for this proposed action, Alternatives 2, 3b, 4, and 5 would all be
applicable within 2 nm of each MHI and in designated waters between the
islands of Lanai, Maui, and Kahoolawe. Among the non-selected action
alternatives, only Alternative 2 (no swimming with Hawaiian spinner
dolphins) would result in a lower direct economic impact to small
entities. While the restriction on swimming with dolphins would address
one threat to Hawaiian spinner dolphin population, this alternative
would not address the remaining documented threats to dolphin
populations caused by close approach by vessels and other craft.
Section 4.2.2 of the DEIS provides more detail. The remaining non-
selected action alternatives would most likely result in a higher
economic impact to individual small entities and the dolphin-viewing
industry as a whole, relative to the preferred alternative of this
proposed action. NMFS has determined that the proposed action meets the
goals and objective of reducing human-caused disturbances that Hawaiian
spinner dolphins are facing in their natural habitat, and helps protect
against declines in the fitness of the population over time.
No additional reporting, record keeping, and other compliance
requirements are anticipated for small businesses. NMFS has identified
no Federal rules that may duplicate, overlap, or conflict with the
action alternatives.
Executive Order 12866
This proposed rule was determined to be not significant for
purposes of E.O. 12866.
Paperwork Reduction Act
The purpose of the Paperwork Reduction Act is to minimize the
paperwork burden for individuals, small businesses, educational and
nonprofit institutions, and other persons resulting from the collection
of information by or for the Federal government. The preferred
alternative includes no new collection of information, so further
analysis is not required.
National Historic Preservation Act (NHPA)
The goal of the National Historical Preservation Act (NHPA; 16
U.S.C. 470 et seq.) is to have Federal agencies act as responsible
stewards of our nation's resources when their actions affect historic
properties. Section 106 of the NHPA requires Federal agencies to take
into account the effects of undertakings they carry out, assist, fund,
or permit on historic properties. Federal agencies meet this
requirement by completing the section 106 process set forth in the
implementing regulations, ``Protection of Historic Properties,'' 36 CFR
part 800. The goal of the section 106 process is to identify and
consider historic properties (or sites eligible for listing) that might
be affected by an undertaking, and to attempt to resolve any adverse
effects through consultation. The process provides for participation by
State Historic Preservation Officers, Tribal Historic Preservation
Officers, tribal, state and local governments, Indian tribes and Native
Hawaiian organizations, applicants for Federal assistance, permits, or
licenses, representatives from interested organizations, private
citizens, and other members of the public. Federal agencies and
consulting parties strive to reach agreement on measures to avoid,
minimize, and mitigate adverse effects on historic properties and to
find a balance between project goals and preservation objectives.
Under the NHPA, an ``effect'' means an alteration to the
characteristics of a historic property qualifying it for inclusion or
eligibility for the National Register. The proposed swim-with and
approach regulations for Hawaiian spinner dolphins, if finalized, would
not have the potential to cause effects on or alterations to the
characteristics of historic properties. Therefore, section 106
consultation is not required.
Coastal Zone Management Act
Section 307(c)(1) of the Federal Coastal Zone Management Act of
1972 requires that all Federal activities that affect any land or water
use or natural resource of the coastal zone be consistent with approved
state coastal zone management programs to the maximum extent
practicable. We have determined that these proposed swim-with and
approach regulations are consistent to the maximum extent practicable
with the enforceable policies of the approved Coastal Zone Management
Program of Hawaii. This determination, a copy of this document, and the
DEIS will be submitted for review by the Hawaii Coastal Zone Management
Program.
Executive Order 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations in which a regulation may
preempt state law or impose substantial direct compliance costs on
state and local governments (unless required by statute). NMFS has
determined that the proposed swim-with and approach regulations do not
have federalism implications.
Information Quality Act (IQA)
Pursuant to Section 515 of Public Law 106-554 (the Information
Quality Act), this information product has undergone a pre-
dissemination review by NMFS. The signed Pre-dissemination Review and
Documentation Form is on file with the NMFS Pacific Islands Regional
[[Page 57874]]
Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Marine mammals.
Dated: August 19, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 216 is
proposed to be amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Add Sec. 216.20 to subpart B to read as follows:
Sec. 216.20 Special restrictions for Hawaiian spinner dolphins.
(a) Applicability. The following special restrictions designed to
protect Hawaiian Spinner Dolphins apply:
(1) In all waters within 2 nautical miles of the main Hawaiian
Islands, and
(2) In all waters located between the islands of Lanai, Maui, and
Kahoolawe enclosed by three line segments that connect points on the 2-
nautical mile boundary between the islands as follows: the straight
line between 20[deg]32'51'' N./156[deg]43'50'' W. and 20[deg]42'4'' N./
156[deg]55'34'' W. between Kahoolawe and Lanai, the straight line
between 20[deg]51'1'' N./156[deg]54'0'' W. and 20[deg]59'48'' N./
156[deg]42'28'' W. between Lanai and Maui, and the straight line
between 20[deg]33'55'' N./156[deg]26'43'' W. and 20[deg]32'15'' N./
156[deg]29'51'' W. between Maui and Kahoolawe (all coordinates
referenced to The World Geodetic System of 1984 (WGS 84)).
(b) Prohibitions. Except as noted in paragraph (c) of this section,
it is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or to cause to be committed any of the following:
(1) Approach or remain within 50 yards of a Hawaiian spinner
dolphin by any means;
(2) Swim within 50 yards of a Hawaiian spinner dolphin;
(3) Cause a vessel, person, or other object to approach or remain
within 50 yards of a Hawaiian spinner dolphin; or
(4) Intercept or place a vessel, person, or other object on the
path of a Hawaiian spinner dolphin so that the dolphin approaches
within 50 yards of the vessel, person, or object.
(c) Exceptions. The prohibitions of paragraph (b) of this section
do not apply to:
(1) Any person who inadvertently comes within 50 yards of a
Hawaiian spinner dolphin or is approached by a spinner dolphin,
provided the person makes no effort to engage or pursue the animal and
takes immediate steps to move away from the animal;
(2) Any vessel that is underway and is approached by a Hawaiian
spinner dolphin, provided the vessel continues normal navigation and
makes no effort to engage or pursue the animal;
(3) Any vessel transiting to or from a port, harbor, or in a
restricted channel when a 50-yard distance will not allow the vessel to
maintain safe navigation;
(4) Vessel operations necessary to avoid an imminent and serious
threat to a person or vessel;
(5) Activities authorized through a permit or authorization issued
by the National Marine Fisheries Service to take Hawaiian spinner
dolphins; and
(6) Federal, State, or local government vessels, aircraft,
personnel, and assets when necessary in the course of performing
official duties.
(d) Affirmative defense. In connection with any action alleging a
violation of this section, any person claiming the benefit of any
exemption, exception, or permit listed in paragraph (c) of this section
has the burden of proving that the exemption or exception is
applicable, or that the permit was granted and was valid and in force
at the time of the alleged violation.
(e) Maps of areas for Hawaiian spinner dolphin special
restrictions. The following are overview maps and a table with
corresponding coordinate data for the areas for Hawaiian spinner
dolphin special restrictions.
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Table 1--Coordinates for the Extent of the Designated Waters Between Lanai, Maui, and Kahoolawe (see Figure 2)
[All coordinates referenced to The World Geodetic System of 1984 (WGS 84)]
----------------------------------------------------------------------------------------------------------------
Line segment between islands Figure 2 label Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Kahoolawe and Lanai.................. A1.................... 20[deg]32'51'' N. 156[deg]43'50'' W.
A2.................... 20[deg]42'4'' N. 156[deg]55'34'' W.
Lanai and Maui....................... B1.................... 20[deg]51'1'' N. 156[deg]54'0'' W.
B2.................... 20[deg]59'48'' N. 156[deg]42'28'' W.
Maui and Kahoolawe................... C1.................... 20[deg]33'55'' N. 156[deg]26'43'' W.
C2.................... 20[deg]32'15'' N. 156[deg]29'51'' W.
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[FR Doc. 2016-20324 Filed 8-23-16; 8:45 am]
BILLING CODE 3510-22-C